Health and Social Care Bill

Lord Mawhinney Excerpts

Wednesday 21st December 2011 Lords Chamber

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

My Lords, perhaps I could begin by addressing briefly the matter of the risk register. Arising from earlier debates on this subject, I have discussed the timetable for the appeal with my officials, and I say again that I recognise fully the strength of feeling on this issue and the desire for speedy resolution. As noble Lords are aware, the timetable for matters of this kind is a matter for the Information Commissioner and the legal process. In view of the noble Baroness’s very courteous suggestion that I should write to her and to the noble Baroness, Lady Thornton, about this, I undertake to do so straightaway. I will copy in my noble friend at the same time. In that letter, I undertake to give as much information as I can at the moment about what we see as the likely timetable for the process.

[Lord Mawhinney]

Before my noble friend leaves that, can he tell the Committee whether the Government have already made representations about speeding up this process?

[Earl Howe]

Yes, my Lords; I have personally done so, as I undertook to the Committee that I would do. Perhaps I may include my noble friend in the letter that I send out so that he is fully aware of what I have done and what my department has done.

I turn next to the matter raised by the noble Lord, Lord Owen. To answer his direct question: yes, I was aware that the department was writing to the noble Lord in the terms that he outlined. I would not wish him to think me guilty of discourtesy or bad faith, because after he asked me to look into this matter I did so. I received very firm and clear legal advice that the information he has asked for falls into the category of professional, legally privileged advice given to the Government. It has not been the practice of successive Governments, including the previous Government, to waive privilege on information of this kind. However, as this matter is ongoing, I hope the noble Lord will forgive me if I limit what I say at this point. He has asked me to look at this further, and of course I shall do so.

--- Later in debate ---

Debate on whether Clause 247 should stand part of the Bill.

[Lord Mawhinney]

My Lords, at the risk of irritating my noble friend, I should like to make a brief comment about this matter. I assure him that it does not fall into the category of wishing to irritate him. If there is any virtue, it is a virtue of consistency on my part.

Clause 247 again deals with the interplay between the Secretary of State and the NHS board. We have already clearly established in this Committee that the Government wish to give the board a freedom from the overall influence of the Secretary of State that would mark a fundamental change in the way that the NHS has been conducting its business over many years.

Subsection (1) of the clause gives powers to both the Secretary of State and the board, and either can exercise them. I look down to subsections (3) and (4) and see that both the Secretary of State and the board can exercise powers in relation to the provision of health services. I wondered whether this was a belated recognition regarding the board for those of us who have been encouraging our noble friend to give primacy to the Secretary of State and maybe a stepping stone towards returning to the traditional position. On the other hand, if it is a stepping stone, and given the fact that until we hear from my noble friend there is not a lot of clarity as to what is intended here, these provisions may simply confuse the matter, not clarify it.

I am old-fashioned, as my noble friend knows, and I think that the Minister is ultimately responsible for the area for which Her Majesty has called him or her to be responsible. The Secretary of State could delegate powers to the board, but that is not the way that the Government have chosen to interpret this. All of us are grateful to my noble friend for the fact that he has been so willing to review this whole issue and to come back with new proposals on Report. I cannot be the only Member of your Lordships' House who looks forward to seeing what those proposals contain and measure them against the views that have been expressed on this subject over some months now.

However, since we moved away from the first few clauses, there have been examples of this ambiguity and potential conflict between the Secretary of State and the board running right through the Bill. I have tested my noble friend’s patience on a number of occasions by drawing his attention to various examples of that as we have gone through the Bill. I draw his attention to what is but another example of the importance of getting this relationship right—and my noble friend knows what I believe is right and I know what he believes is right. We are both grateful for the opportunity to review that before Report. I should therefore be interested to hear what my noble friend thinks is actually meant, or intended to be meant, by this clause.

Finally, because we have already established that the risk register is legitimate to discuss under Clause 247, I share the view that it would be very helpful to the Committee to have a definitive decision before Report gets under way. In keeping with what my noble friend Lord Newton of Braintree just said, were the Government to lose and to decide to pursue the matter to the next stage, I hope that the Minister will not think that such a decision would be without friends in this House. I cannot be the only former Minister who has conducted examination of potential legislation on the basis of “What if?”.

[Baroness Williams of Crosby]

I underline the point made by the noble Lord, Lord Mawhinney, because the whole area of information is a crucial aspect of the constitutional issues about accountability. In particular, the clauses we are discussing are expressed in complicated ways that are difficult to understand. For example, I find it hard to be clear that personal and identifiable data will not fall within the terms of the clauses, because the phrases “other persons”, “other bodies”, and so forth are scattered throughout the clauses. That disturbs me. Perhaps the Minister could add a little on data protection legislation and address the important point raised by the noble Lord, Lord Mawhinney, about this aspect of the Bill, which of course relates to several others besides.