Health and Social Care Bill

Lord Owen Excerpts

Tuesday 25th October 2011 Lords Chamber

[Baroness Barker]

My Lords, when I looked at the amendment that the noble Lord, Lord Hunt of Kings Heath, had put his name to, I was immediately taken back to the debates on the Mental Health Bill that many Members of the House worked on. I am sorry that the noble Lord is not in his place. I mention a phrase of his in that debate. I have some form as regards proposing that there be principles at the head of a Bill, just as he has a lot of form in resisting them. He and several of his colleagues spent a considerable amount of time resisting all attempts to have principles inserted into that Bill. When we were discussing that issue in 2007, the noble Lord, Lord Hunt, in reply to my noble friend Lord Carlile, said that,

“putting the principles in the Bill is not a constitutional problem, rather we are concerned about the practical impact of those principles”.—[Official Report, 8/1/07; col. 46.]

That for me is the problem with the amendment.

Various Members of the Committee have talked about the NHS Constitution. I am afraid that the consequence of selecting some parts of it may be that the noble Baroness, Lady Thornton, is unintentionally placing other parts of the NHS Constitution at a lower legal status. I want to defend the members of my party at their conference in Sheffield. When they voted on a resolution, they were not voting for legislation. They were passing some words in the form of a resolution. This section has been taken from a far bigger resolution. They were expressing their views, which were then taken forward into the Future Forum work. I would not condemn them for doing that. But I do not think that those words are now adequate to achieve what is intended.

A number of noble Lords have talked about openness and accountability, and the importance of the Nolan principles. Those are important. As we continue through this Committee stage, I want to look in great detail at how those principles are applied to the NHS Commissioning Board, and to clinical commissioning groups, because it is how those principles work in practice that is important.

For a number of reasons I cannot support this amendment. But I would think it unfair to characterise anybody who does not support it as resiling from these or any other principles. We do support many of them. We will return to many of them during further stages of this Bill, and I hope that we will make sure that some of them are passed into the legislation, but not this amendment in this form.

[Lord Owen]

My Lords, I support the proposed new clause. It is not perfect, but that is not the issue. What we are really debating is whether we want, at the start of this legislation, something that talks about the principles and values of the National Health Service. It will not be easy to find the right words. The noble and learned Lord, Lord Mackay of Clashfern, drew attention to some very fine words in the original NHS Act, and they might well find their place. It is not a preamble, but it has the spirit of a preamble behind it. It is very necessary.

Let me explain one thing. People know that I was a doctor, a medical scientist, and also a Minister of Health. But it is not so well known that I was for 15 years on the board of Abbott Laboratories—one of the largest healthcare companies in the world—and there will be many occasions in Committee when I will be dealing with conflicts of loyalties because I am still a shareholder. I just wish to state that.

It is also important to realise that I am not opposed to the market. Indeed, at very early stages in 1985, I was the advocate of the internal market. I must say I am ashamed of that advocacy now. So often the work that was done on an internal market is used to justify the external market that is the basic fundamental underpinning of this Bill, which I am afraid will become an Act.

Ten years old is a very impressionable age. My father, in 1948, said to our family that this was a day of freedom for him. He had voted Labour in 1945. He had been a general practitioner through the 1930s in the Welsh valleys, and he had never got used to charging patients. This was the day when he no longer had to charge patients. But he always said with a rueful smile that there were a few exceptions. One was the Gypsy encampment, which considered that a consultation had taken place only if silver had crossed the palm.

We all know there is a market and there always has been. People have talked about the independence of general practitioners, which has been fiercely fought for. But the interesting thing about this National Health Service legislation is that it was not only a Labour Government achievement. When I was on the Labour Benches I used to proudly claim it as a Labour achievement. Then when I worked with the Liberals and the alliance, I used to claim it was Beveridge. The truth of the matter is that if there are two outstanding people who can claim paternity to the spirit and values and principles of the NHS, they are Beveridge and Bevan.

There is a great wish in this country, wherever people are situated in the political colour frame, to keep some of these values in whatever happens to this NHS. I happen to agree with the noble Lord who spoke that this is a disastrous Bill. It will unutterably change the principles of the National Health Service, and I shall reflect that argument. I have not done so to date because I have tried to see a mechanism whereby the Bill can be discussed. Others will, with perfectly genuine motives, consider it an achievement and the right direction for the NHS, but I think that we ought to be able to agree on the values. I hope that, whatever happens to this amendment in a vote, we will not lose the basic spirit of trying to find a form of words that will underpin these principles and values. They are very important.

--- Later in debate ---

[Earl Howe]

The Secretary of State could act if Health Education England was failing in its functions. Our vision is that we will be giving functions to Health Education England to oversee a national system. If it does its job properly, then the situation the noble Lord describes would, one hopes, be handled in a satisfactory way. If it fails in its functions, then, yes, of course it would be the duty of the Secretary of State to step in and oversee the process.

[Lord Owen]

This is a crucial question. The word failure is extreme. A lot of us worry that waiting for failure would be too late. We want to see an intervention capacity when the Secretary of State has anxieties or doubts about what it is doing and that he has a position to represent this Parliament—or any Parliament —on the issue.

[Earl Howe]

I know that is the noble Lord’s concern and of course I understand it. However, it is the policy of the Government to confer functions where they best sit. If the Secretary of State were to intervene at any whiff of trouble, it would run counter to that vision. I believe that there will be ample scope in the next set of amendments to talk about this very subject; but it is very important to understand that we have quite deliberately taken the view that functions, duties and responsibilities should sit with individual bodies and that the Secretary of State should be there to ensure, to the public and Parliament, that those bodies fulfil their duties and functions correctly.

I suggest that we defer the particular issue raised by the noble Lord, Lord Owen—about the degree of system failure that has to occur before the Secretary of State intervenes—to the next set of amendments. The amendment we are dealing with now has to do with the ultimate accountability of the Secretary of State for the education and training system—which I am saying to the Committee is there in our amendment.

--- Later in debate ---

[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.

[Lord Owen]

My Lords, this has been a fascinating debate and it has certainly taken the arguments further. I do not think that anybody expects that we will vote tonight, and I think that we will come back to this at Report.

There are merits in both of the cases put forward. In some respects—we can argue about the word “ultimate”—the idea of responsibility to Parliament has merit. It also tallies with the expression used by the noble Lord, Lord Newton. When people realise what the chairman of this largest quango thinks he will do, there will be uproar. Unfortunately, we have not yet been able to read those things—we know about them through reports, but we have not yet read them. It is very clear that the chairman-designate takes the view that he is given the money, he is given the mandate—a three-year mandate which is of course subject to change—and he then decides. It is pretty clear that some people think that that is a very good idea. I think that the noble Lord, Lord Warner, is pretty close to that position.

[Lord Warner]

I cannot resist responding to that. I do not accept that position. I was trying to say that what the putative chairman is saying seems to be in conflict with what is provided for in the legislation, which requires the Secretary of State to produce a mandate before the start of each financial year. That is a very clear marching orders provision in the hands of the Secretary of State.

[Lord Owen]

When we look at what has been said, we will have a better idea. As the Bill unfolds in all its complexity, we are all part of the education process. We saw that in the earlier debate about education. It is not satisfactory for Parliament to rest powers against the wording of the legislation; that is why we worry about words. Words matter here; we cannot get away from that. That is why I come back to the provisions in the admitted interventions—“failure”, “emergency”—which are extreme words, and are deliberately designed to be. We have to look at that.

We will not come to a view on the Secretary of State’s powers until we have finished Committee, looked at the whole Bill and have a feeling for what is to be changed by the Government. We will then come back to it. Personally, I hope that the Select Committee on the Constitution itself comes back to have a look at this. The committee has some very distinguished members. I would like to reserve judgment. The noble and learned Lord, Lord Mackay, who was one of our most distinguished Lord Chancellors, has made a very valuable contribution. Some of his explanations may even be of use in future law courts. I certainly stand by the amendment produced by the noble Baroness, Lady Williams, because it is tried and trusted, but I have made it clear that I would not object to wording put into this Bill at an appropriate stage which states that the Secretary of State is not micromanaging the National Health Service. Unfortunately, there is a public perception that comes to the Secretary of State for every damn thing under—I think I have made myself clear. We do not want that to happen and we know that it should not happen. We mouth the words of a decentralised health service without being willing to admit that there are limits to what people can be held accountable for. However, I do not think that failure and emergency are the parameters. They have to be lowered if we are going to make sense of this.

[Lord Newton of Braintree]

My Lords, before the noble Lord sits down, to use the classic formula, perhaps I may take the opportunity to say that in a series of debates in which he and I have not always seen eye to eye, I agree with pretty much every word he has just said. In particular, I do not think that we should return to this until we have been through the rest of the Bill and seen where we are on things such as the powers of the Secretary of State, the wording of those powers and the like. The noble Lord has made a very sensible point by saying that we can then form a better judgment about what is required in this area.