Health and Social Care Bill

Lord Owen Excerpts

Tuesday 13th December 2011 Lords Chamber

Debate on whether Clause 72 should stand part of the Bill.

[Lord Owen]

My Lords, I wish to draw attention to Clause 72(1)(b), which refers to,

“a power to investigate on its own initiative whether the National Health Service Commissioning Board or a clinical commissioning group has failed to comply with a requirement imposed by virtue of section 71(1)(c)”—

which we discussed earlier, the provision to,

“not engage in anti-competitive behaviour which is against the interests of people who use such services”.

I had understood that the decision not to have competition as one of the main functions of Monitor was a considered political decision, but the more one looks at Clause 71(1)(c), and now at Clause 72(1)(b), the more one realises that this has been got round, effectively, by ensuring that anti-competitiveness becomes a prime responsibility of Monitor.

There are a number of objections to this. The noble Lord, Lord Whitty, put his finger on it, that a good regulator does not also become a policeman in an anti sense to the people he is trying to regulate. There is a deep question as to whether you really want a situation where Monitor can be set against the National Health Service Commissioning Board and the commissioning groups. I am very doubtful that this is a sensible power to give to Monitor.

I know it is regulating the whole group, but if you look at the way Monitor is approaching its tasks, time and again it is going to be reliant on good will and an atmosphere of trust between Monitor, the NHS Commissioning Board and the commissioning groups, and now there is this question of anti-competitiveness. It is not as if nobody else is going to be looking at anti-competitive behaviour of the National Health Service Commissioning Board. The private sector wants to go into this whole area and will be looking very carefully at whether or not it is being given an even playing field. It will be taking, and threatening to take, the Commissioning Board to law—I am not even raising the issue of EU legislation, but just under British legislation.

I do not think it is fair to argue that there is unlimited freedom for the National Health Service Commissioning Board or the commissioning groups to operate in this area, particularly the board. You are really setting yourself up for a very difficult situation. Also, to do it “on its own initiative”—does that mean Monitor would not consult the board or a clinical commissioning group but just suddenly involve itself in an investigation? I would be grateful if the Minister could give some indication of how he sees this in practice.

Will some guidance be given not to develop an adversarial relationship? It is very easy for animosities to start coming in to this area. As I say, it is not as if it is free from legal challenge. Their actions can be challenged. However, for another NHS body to be able to question the judgment of the Commissioning Board that in this particular case it is best not to put something out to competitive tender, or to make a judgment when it has been done because somebody feels that it is anti-competitive, is a really dangerous power. In the wrong circumstances, where Monitor might be chaired by somebody who is getting into a bad relationship with the NHS Commissioning Board chairman, something not totally unknown in these areas, this is a tool which could be used in a destructive and adversarial fashion.

It would be very helpful, for future occasions, to hear from the Minister as to how he thinks this would actually work out in real life.

[Earl Howe]

The noble Lord, Lord Owen, has caught me napping, so to speak, because I was not expecting that intervention. I would be very happy to write to him to set it out, if he will allow.

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None of that seems to be enshrined in the Bill. I do not know whether guidance is provided but this seems to be something that requires a considerable act of faith on the part of those looking at these prospective merger proposals. I very much hope that the Minister can give greater clarity than was provided in the House of Commons on this matter. In due course, I hope that the advice that he receives or commissions will also deal with the question as to whether it is safe to have provisions such as this applying directly the provisions of the Enterprise Act are going to be safe for the purposes of EU competition law application. I beg to move.

[Lord Owen]

My Lords, I gave notice that I would raise this matter under whether the clause should stand part of the Bill but it is easier and more convenient to do it on this occasion. It is extremely important that this amendment is given serious study by the Government. I hope that either they will produce their own amendment or that the noble Lord, Lord Clement-Jones, will push this on Report to a vote.

Not to have such a provision is ridiculous, particularly in view of what we heard earlier from the noble Lord, Lord Newton, about how long it is taking to conduct mergers between trust hospitals in other areas. It is an ingenious way of doing it. I was trying to work out a way in which it could be done and rather failed. The wording that the noble Lord has come up with is very sensible and I hope that the Government will give it a fair wind. It is all part of the policy of trying to curb this uninhibited competition in every aspect of this Bill.

[Baroness Greengross]

My Lords, I was recently privileged to be the lead commissioner for the Equality and Human Rights Commission on an inquiry, looking at the human rights of older people in their own homes in need of care and support. This inquiry was a very large one with a lot of evidence, involving 500,000 people in total in this country. We found that half of the people were very happy with the care they received. The other half—250,000 people—were rightly not happy with what had happened. There were awful instances of people being abandoned for 10 or 12 hours, having no social interaction or opportunity to talk or chat. They were left without care for many hours. These are very bad instances of poor care and I really believe that had the staff of the 250,000 people been trained properly in what the tool of human rights can achieve—and if their managers had understood that—a whole lot of these instances of very poor care would not have taken place.

My amendment is designed to ensure some clarity on the application of the Human Rights Act to domiciliary care services commissioned from private and third-sector organisations. This amendment would clarify that providing these services is a public function within the meaning of Section 6(3)(b) of the Human Rights Act 1998. It would bring domiciliary care in line with residential care; similarly, this amendment would confirm that health care services commissioned from private and third-sector organisations fall within the scope of the Human Rights Act. It would clarify the extent of the public sector equality duty because the definition of public function under the Human Rights Act also determines the definition of public function under Section 150(5) of the Equality Act 2010 for the purposes of the public sector equality duty. My amendment also uses wording which is consistent with Schedule 1 to the Health and Social Care Act 2008.

In 2008, Parliament introduced amendments to the Health and Social Care Bill—now the Act—to overturn previous case law and ensure that private and third-sector care homes were defined as carrying out a public function. We were delighted that that applied and that they therefore came under the scope of the Human Rights Act. This received cross-party support and was the result of a long campaign by the EHRC and also the Joint Committee on Human Rights. The campaign aimed to ensure that organisations receiving public money were subject to proper regulation.

We also know that a similar problem is likely to be the case in healthcare if the care is commissioned by the health service to private or third-sector organisations. It is very important to make this clear because the fact that private and third-sector providers operate at the moment outside the scope of the Human Rights Act undermines, or threatens to undermine, the pioneering work of the Department of Health itself in promoting its Dignity in Care campaign. Further, the Health Service Ombudsman has recently documented 10 investigations into NHS care. All of that demonstrates that we need clarity in order to get this right and make sure that people are protected. We must be certain that people are not subjected to breaches of human rights which no one can do much about in the present situation.

I have cut short what I was going to say because it is late, but I do want to say that support for this amendment will clarify beyond doubt the fact that a person commissioned to provide home-based social care or healthcare is, in providing that sort of service, performing a public function within the meaning of the Human Rights Act and the Equality Act. I hope that the Minister will find it possible to support the amendment.

Health and Social Care Bill

Lord Owen Excerpts

Wednesday 30th November 2011 Lords Chamber

[Baroness Pitkeathley]

My Lords, in rising to speak in strong support of the amendments moved by my noble friend, I want to remind the Committee of the large number of older people who are not in receipt of health and social care services but are actually providing them. Of course, I refer to the increasing numbers of very elderly carers. Although the peak age for caring is still 45 to about 60, we are increasingly looking at elderly spouses looking after their elderly spouse, or much older parents looking after a child with special needs who is living very much longer than anyone would have expected hitherto. So the services that we think about—housing, transport, care services—must be tailored to the needs of these older carers too.

Of course we also have economic reasons for doing so, because many people have become poor in their old age by virtue of the fact that they provided care, and they are often in poor health as a direct result of their caring responsibilities. I remind your Lordships that these are the people who are most affected at the moment by cuts in local authority services and the voluntary sector. I hope that the Minister will be able to give an assurance that the needs of older carers will also be included in government priorities.

[Lord Owen]

My Lords, I had not expected to speak but I thought that the case put forward by the noble Baroness, Lady Bakewell, was extremely convincing, particularly this issue that age is not an illness but a reality, and above all a numerical reality.

Listening to the arguments, I would put just one other thought. Commissioners can sometimes be listened to and effective in government. This largely depends on the structure of government, and in particular probably either the personality of the Prime Minister or the person who is leading on health. We used to have Health and Social Security under one Secretary of State, which the noble Lord will remember very well, since he was Barbara Castle’s private secretary. He may remember too that a decision was taken in 1974 to make a Minister for the Disabled. It was scoffed at by many people within government, but there is very little doubt, looking back at the record of having successive junior Ministers responsible for disablement, that there has been a formidable achievement both in legislative activity and in activity across the board. The former Prime Minister, John Major, was at one time a junior Minister for disablement, and in fact in many ways he won his political spurs in that position.

It is a constant reminder to the Cabinet sub-committees that deal with issues like this that there is a voice there that speaks up and represents it and that is close to the source of power and decision-making. A commissioner often does not have either that access or that power. There is very little doubt that we hear and see all these problems of the aged, or that these problems are increasing. Incidentally, I think that the amendment is well worth while on its merits in relation to a National Health Service commission, but that is, as everybody has admitted, only one, relatively small issue.

There is a much deeper political issue which the present politicians are not able to grapple with. If we look at the response to the old people’s heating allowance, there is a growing feeling among a substantial number of people who do not need this money that, if we are going to be serious about grappling with the problem of the aged, we have to be serious about the whole question of the now very considerable cumulative sum that is pushed to elderly people purely and simply because of their age. I enjoy my free travel pass greatly and am wholly in favour of it, but I do not need it. In fact, I ought to be walking more frequently rather than taking the Underground or the bus. I think that we need to have a fresh look at this. The initiative on these issues will probably come from the body politic. It would be much easier to persuade people that the time has come to be more selective on some of these issues if it were ensured that the money saved was earmarked, for a while, specifically for projects for the elderly.

I would not want to endorse the proposition of a commissioner at this stage. I would be more attracted to the idea of a junior Minister for the elderly who is in government and can attend the housing, welfare, health, social care and all the other Cabinet sub-committees where the really crucial decisions are taken in terms of legislation and, often, finance.

[Baroness Wall of New Barnet]

My Lords, I, too, support Amendment 327ZB, tabled by the noble Baroness, Lady Bakewell, and her earlier amendment. However, I want to make this point. I would not want the people at the sharp end—the nurses and healthcare assistants dealing with patients—to feel that this in some way exonerates them from taking the care that they should. We need to be sure that Amendment 327ZB, which describes the activities that the commissioner for older people should cover, is not an escape route for anybody who is face to face with patients, suggesting that they do not need to take responsibility. I hope that the amendment reinforces this point, but we need to be sure that this is not an opportunity for these people to claim that there is someone else who will look after their patients.

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I turn finally to Amendment 277, which is concerned with the prohibition in Clause 67(3) on the Secretary of State intervening in Monitor’s operation in relation to a particular case. Monitor’s regulatory functions involve regulation of all NHS foundation trusts, some of which are very substantial. Things can go wrong, as the Mid-Staffs inquiry demonstrates, and they can go wrong with Monitor. Monitor has a plethora of functions that are directed to individual cases, not least the entire licensing procedure for NHS foundation trusts. Each trust must apply for a licence, and it is Monitor that determines the application and then sets the conditions. I appreciate that there is an appeal against refusal or revocation of a licence. However there is no appeal against a grant. In those circumstances it is simply illogical that the Secretary of State has a general power of intervention where there has been a significant failure by Monitor in relation to the exercise of its functions, but that that power cannot be exercised in a particular case because of Clause 67(3). Our amendment would remove that illogical distinction.

[Lord Owen]

My Lords, I have followed with great interest the career of the noble Lord who has just spoken. He has now reached great eminence in his profession, and he has succinctly explained exactly what this Bill needs. This is by far the most important amendment that we have had before us. I welcome both of its parameters. It would be a terrible failure if we did not pass such a Bill. It is inconceivable that a person could even call himself Secretary of State for Health and not have this power. It would be impossible for him to stand before the House of Commons, where he is most likely to be holding that great office, and be unable to say if he felt that there had been a failure to carry out the responsibilities with which he is charged. How could he hold the office? It would effectively be a resignation issue on an important matter if he did not have that power and was not able to exercise it, and not to give him that power is effectively to strip the Secretary of State of his substance and his standing. This amendment is therefore utterly crucial. I personally think the wording is correct.

I would just like to deal with this word “significant”. Until a few weeks ago I would have queried whether or not the word “significant” would be adequate. However, if you look at the legislation that this House has already examined in great detail and which has now been passed into law, namely the European Union Act 2011, which was given very close scrutiny, there is an issue—I think it is in Article 48—that I suspect we will be debating quite soon. This allows the Government, in circumstances in which they think a change has been made to the EU legislation that is not significant, to give up having a referendum. It has already been indicated to the rest of the eurozone countries that there are some circumstances under which the British Government would consider a eurozone amendment predominantly the concern of the eurozone and not significant, and therefore it would be able to be passed with unanimity and not need a referendum in the UK. So this word “significant” has already been crawled over with a great deal of care by a large number of people, not least the Eurosceptic element within the Conservative Party.

It has also been made clear that that would be subject to judicial review, which might be another safeguard that you would have to see. I think it is implicit in the wording—the noble Lord would know the legal consequences better than I—but I personally could live with the “significant” because there is an important issue here that if decentralisation is to be effective, there must not be micromanagement. I looked at putting down an amendment using the word “micromanagement” and then I came to the conclusion that micromanagement is in the eye of the beholder; it is not really a word that we could carry through in legislation. I think the combination of wording that the noble Baroness has used is the correct one: you have got the right to intervene but it is qualified by the fact it has to be significant, and it might be that that significance could be challenged. I very much hope that, having given it due thought, the Government will rise today to tell us that it is going to be accepted. If they do not do so, I hope it is pushed to a Division, whether that is now in Committee or on Report is up to the noble Baroness, Lady Williams, whose judgment I always accept—almost always.

[Lord Hunt of Kings Heath]

My Lords, I remain very puzzled by what the noble Baroness, Lady Williams, said. There is no disagreement at all, it seems to me. My original amendment and the amendments of the noble Lords on the Liberal Democrat Benches are entirely about the whole question of what is an appropriate intervention by the Secretary of State. Perhaps the noble Earl is going to accept this amendment and the Liberal Democrats want the glory of having it accepted—who knows? I agree entirely with the analysis of the noble Lord, Lord Marks, that the powers of the Secretary of State have to be sufficient to enable the Secretary of State to discharge his or her accountability to Parliament and to be responsible for the overall performance of the National Health Service. I agree with him that the current intervention powers are too weak in terms of the threshold and I agree that they are set too high. I also agree with his analysis about the relationship between the board and clinical commissioning groups.

It is very interesting as this Bill has progressed—somewhat slowly but none the less some progress has been made—that we have seen a number of interventions by the Secretary of State into the affairs of the National Health Service during that time. They have included coming down very hard on primary care trusts that were making people wait longer on the waiting list, although within the 18-week target period in order to save money, and on NHS trusts that, once a patient missed the 18-week target, let them wait many more months. I make no complaint about those interventions. I believe the Secretary of State was entirely justified. One of the questions is, how would that happen under this legislation?

When we debated this last week, the noble Earl, Lord Howe, essentially said that provision could be made in the mandate set for the board by the Secretary of State. That in itself risks the mandate becoming prescriptive and potentially another way to micromanage the National Health Service as one thing after another is added on. He was not very keen on my noble friend Lord Warner’s suggestion that the mandate be restricted to, I think, five objectives and five desirable objectives. I suspect that when we see the mandate it is going to be very detailed because the Secretary of State will seek to cover himself so that when blame comes it will fall entirely on the NHS Commissioning Board.

It may be that in writing the mandate there are some events or issues that could not be anticipated in advance. However, in the circumstances that I have mentioned, the noble Earl, Lord Howe, could say, “Well, you have the intervention powers contained in Section 13Z1 on page 23”. As the noble Lords, Lord Owen and Lord Marks, have suggested, the problem is that the intervention has to be based on a failure,

“properly to discharge any of its functions, and the failure is significant”.

The intervention is based on the consideration of the Secretary of State. The Secretary of State will be properly advised by his officials and possibly by the Government’s law officers. However, what if the NHS Commissioning Board rejects the Secretary of State’s view? What if clinical commissioning groups which had contained costs took the view that, in the case of non-urgent treatments, it was legitimate to make patients wait a few weeks if they were none the less treated within the overall 18-week target? Looking at the robust evidence given by the chair of the NHS Commissioning Board to the Health Select Committee, which scrutinised his appointment, it is just possible that the NHS Commissioning Board might tell the Secretary of State to back off. I do not think that is right. I am firmly on the side of Mr Lansley, since he is the Secretary of State and firmly answerable to Parliament. In the way that the Bill is currently constructed, I worry that the Secretary of State will be inhibited from necessary interventions.

Health and Social Care Bill

Lord Owen Excerpts

Tuesday 22nd November 2011 Lords Chamber

[Lord Owen]

My Lords, I support the amendment spoken to very ably by the noble Lord, Lord Hunt. The case is utterly convincing in every respect. The use of the word “mandate” is strange in parliamentary terms. It presumably owes something to the idea of legitimacy. We talk of a mandate coming from the electorate. If the Bill is to use this term, I imagine that it is in the belief that it is a mandate from the Government. It has always been recognised that if there is a mandate from the electorate going to the Government then that mandate from the Government must be checked by Parliament. It would be extraordinary if there was any period when the mandate could not be discussed. It has been widely said that the mandate will last for a year, although that has not been officially confirmed. It is essential that we hear from the Minister how long the mandate will run. But with a period of even six months it would be irresponsible for Parliament not to comment on it and have the facility to debate it.

Here we come to the nub of this whole question. We have already been there on the question of the Secretary of State’s powers. Are we really considering putting this vast block of government expenditure out into the void with no requirement or capacity for the Government to be held to account by Parliament? This is an absolutely essential amendment. Were it to be rejected, we would have a very clear idea of what the Government’s views are about the role of the Secretary of State. I have said before that I call this Bill the Abdication of the Secretary of State Bill.

We can argue about this but the Government have a majority and are going to push this legislation through. For all the balmy words and the assurances we hear, this legislation will, I am sure, near the end of the day, emerge very much as it was originally presented. There is a logic to it and there is no doubt that the Secretary of State has not come to his position lightly or without thought. He was in opposition for many years and is very knowledgeable about the health service. He has a philosophical position. He wishes to take the NHS out of politics—the old slogan of the BMA for years and years. However, that position was rejected by every single Conservative Government since the Act was first introduced because they believed it was impossible to take such a large sum of money out of the realm of politics. It seems amazing that we have not yet had a single, serious argument as to why this strange new philosophy should be introduced. Where there is substantial government expenditure, which comes from taxpayers and is not owned by the Government, there should be accountability throughout the process.

I have also raised another, and, I feel, much deeper, issue. The British people, over all these years, have accepted that our spending on health—which is actually less than that of many other comparable nations—is rationed. It is no use us ducking the fact that we are making massive changes to an institution that has extraordinary levels of public support and has had such support ever since it was introduced. The fundamental reason—I can find no other justification—is that there is a sense among the British people that they have had their say in this rationing process. They have had a mechanism for feeling that the choices and distribution of finances have been debated and that therefore it is a choice they can support. If we tamper with that process, we tamper with a very serious element—this acceptance of the rationing process and this support for the NHS.

Some measure of parliamentary accountability has to be written into the Bill at every juncture where it makes sense. This will come up in the debates on the Secretary of State’s powers, which are still to come, but many of us have expressed the view—I have certainly written about it—that the health service is overcentralised, that a degree of decentralisation in decision-making is necessary, and that there needs to be less micromanagement. These issues are broadly accepted. But we come now to this mandate. I would have chosen a different word and a different mechanism. However, if that is the only mechanism we can amend, how can we reject the idea of some measure of parliamentary accountability, of writing in some other priorities and of questioning the decisions of the Minister?

Amendment 98, tabled by the noble Lord, Lord Warner, is very necessary. He and I may remember a day when the Secretary of State at the time was intent on the policy of pay beds. I was fully associated with the policy, even though I am not so sure it was the wisest policy in retrospect. It was very interesting that the then Permanent Secretary exercised his responsibility and came in and argued against the proposition. We claimed we had a mandate from the electorate as it had been in the Labour Party manifesto in the 1974 election. He nevertheless produced a rational argument why that should not be done at that particular time, following the reorganisation of the National Health Service. The noble Lord will remember this very well because he was on a committee that was looking at this very issue. The Permanent Secretary said that it was the wrong timing quite apart from the issue of principle as to whether the measure constituted the right politics. I should say in fairness to the then Secretary of State, Barbara Castle, that she gave him a proper hearing, questioned him and explained the situation. He said at the end of the day, “If you decide to go ahead with it, that is your choice and we will loyally support it”. I think that few people who dealt with those officials had any belief that they had anything other than 100 per cent commitment to the measure. They had fulfilled their constitutional responsibilities and there would have been much merit in the issue being forced out and discussed. People should have known that opinion. In our present system these opinions do not often come forward.

At least under the system in place at that time there was constant scrutiny of the Secretary of State through Parliament. In this situation where the Secretary of State, having issued his mandate, will pull out of any form of day-to-day accountability in Parliament, scrutiny becomes ever more necessary. The transparency has to be on both sides. The officials—in this case, the Commissioning Board—have a perfectly reasonable right to make clear to Secretaries of State that they think the mandate that has been pushed on to them is not deliverable. That should then be made known to the public. Similarly, the commission and the Secretary of State should know what Parliament’s view of the issue is. I await the Minister’s response, which will flavour a lot of one’s attitude to other important debates about the powers of the Secretary of State which we have still to resolve. The Government should indicate whether this is a totally “geek” Bill with the strange philosophical position that Parliament must never put its dirty fingers on any aspect of the National Health Service. Are we to have a grown-up, adult debate about the degree of decentralisation and the degree of management that will be devolved, or are we going to have a clear-cut line whereby Parliament in effect has no responsibilities at all?

[Lord Harris of Haringey]

My Lords, I confess that I am something of a cynic about some of the proposals in the Bill. I am a great believer in the principle of localism, the local determination of services and local decision-making. Therefore, in principle I would applaud any Government—even this Government—who desire to devolve responsibility for various things to local authorities and, in this case, local commissioning groups.

However, my cynicism kicks in because what I suspect is happening here—I suspect that it will happen in other service areas—is that Ministers are cynically saying, “We are leaving these responsibilities to you, the local bodies concerned. We are very happy for you to make all these decisions. The snag is that we will not provide you with the resources to meet all the expectations that the public, who rely on those services, might legitimately have hoped to be provided. However, we are not taking these decisions. We will not be involved. It is a matter for local determination”. To be honest, I think that is what underpins much of the localism, devolution or autonomy agenda that we are seeing.

However, the experience of all previous experiments of localism is that while Ministers say, “Yes, this is a wonderful idea. We want to do it”, pressure starts to be applied to particular things. They want to have a mechanism whereby they can say, “It is, of course, your decision. However, we want you to make sure that these things happen”. Gradually, the list of the things that must happen gets longer and longer and the list of areas of discretion gets shorter and shorter.

When I saw the proposal for a mandate to be in the Bill, I thought that that was the mechanism whereby on the one hand Ministers will proclaim that they have no involvement in these decisions and say that they are all local decisions, but on the other hand this will enable them to ensure that certain things still happen because they are being subjected, as elected politicians, to pressure to make sure that they happen. That is why the amendment of my noble friend Lord Warner, which would restrict the extent to which this could be done, is very important. If we do not have an amendment of that sort in the Bill, I can tell you now what will happen; every single pressure group, voluntary organisation and lobby will say, “We want included in the mandate”, which is being issued to the national Commissioning Board, “the following service. We will want to see it there.”

For any sensible Minister the simple answer to all this is to write an extremely long mandate that covers all those points rather than sticks to them. If they were obliged to be limited to just five or six or another small number of issues, that would be extremely salutary. It would stop the creep that would happen. However, I suspect that the Government are not going to say suddenly, “My goodness, the noble Lord, Lord Warner, has come up with an excellent idea. Why didn’t we think of that? We must accept it, of course”, because unfortunately that is not always the way in which government Ministers react. They will stick to the letter of the Bill without those specifications. They will say, “Well, why five? Why not 10? Why not 12? What about three?”. All these different things will be argued as an excuse for not doing it. You will then get the drift and the pressure to say that more and more things must be added.

Amendment 100A is so important because there must be parliamentary scrutiny of what is happening, because this will be the mechanism that drives decision-making in the NHS. It is not going to be a pure version of devolution, localism and autonomy; this is going to be done through the mandate. The mandate is then going to be the most important document that drives the NHS at any one moment. That is why parliamentary scrutiny is essential. Parliament must have the opportunity not just to see it and to know what is being done in the name of the public but to comment, amend, or put forward amendments and have the Government respond to them.

I therefore hope that when the Minister responds he will accept not only the principle of my noble friend Lord Warner’s amendment but the principle of detailed parliamentary involvement in this process in the amendment of my noble friend Lord Hunt of Kings Heath.

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[Earl Howe]

It could do. However, that is to be determined. I would welcome the views of the noble Lord on that, if he has particular examples in mind.

This brings us to the question the noble Lord, Lord Hunt, asked about the period which the mandate will cover. It will be a multi-year document, updated annually, which is intended to provide a stable policy context for the board. There may be circumstances which call for the mandate to be updated in-year, including after a general election, to ensure that an incoming Government could start to implement their manifesto commitments for the NHS in-year. Any revisions to the mandate will be open and transparent. If the mandate is revised, it must be published and laid before Parliament with an explanation of the changes.

I will now comment on Amendments 98 and 100, tabled by the noble Lord, Lord Warner, and Amendment 100A, tabled by the noble Lord, Lord Hunt. These rightly highlight the importance of transparency and parliamentary scrutiny of the mandate. I completely sign up to transparency as a principle. In the first place, there will be a public consultation. Alongside that, we will engage with stakeholders, including the board, to ensure that we set ambitious but achievable objectives. It is essential that the Government hold the board to account for objectives that are achievable. It is not in anybody’s interests to set the board up to fail. At the same time, where there is scope for improvement in the health service within the resources available, the mandate should and will ask the board to drive such improvements.

Ministers have a legitimate right to be ambitious on behalf of citizens and taxpayers, but we know that getting the balance right and setting objectives that are affordable and ambitious will not be straightforward. Much of the answer lies in transparency. There will be open public consultation on the Government’s objectives for the NHS. I can assure noble Lords that the process of developing the mandate will be open and consultative, including a formal 12-week public consultation. We intend to publish a consultation response as well as a summary of the responses we receive.

I point out that the Bill places a duty on the Secretary of State to consult the board and HealthWatch England before specifying the objectives and requirements in the mandate. We should be clear about how that changes the current arrangements. At present, decisions about the Secretary of State’s priorities for the NHS can be decided without reference to, or consultation with, anyone, as we saw under previous Governments. Top-down targets can be set without consultation. The priorities for the NHS are issued around this time every year through an operating framework without any need for consultation. Under the Bill, for the first time parliamentarians and the public will have the opportunity to consider and challenge the Government's objectives for the NHS every year. No previous Government have ever allowed this. It will highlight and reinforce, year by year, Ministers’ overarching responsibility for a comprehensive National Health Service free at the point of need.

The consultation will provide a period in which Parliament will be able to scrutinise the Government's proposals—as will the Health Select Committee if it chooses. It is appropriate that this consultation should take place before the mandate is published. We must provide clarity of purpose for the NHS. A period of additional parliamentary scrutiny after the mandate is published, which is what the amendment proposes, would be disproportionate and very disruptive. It would reduce the time the NHS has for planning and would create uncertainty in the service.

There will of course be formal parliamentary control over any legal requirements set for the NHS through the standing rules and any other regulations. The Bill not only gives Parliament an unprecedented role in setting out the roles and responsibilities in the NHS but increases parliamentary scrutiny by requiring detailed parameters and requirements to be set in regulations rather than in ministerial directions that have no scrutiny at all. I hope that noble Lords will give the Government credit for that package of proposals.

In addition, we have accepted the recommendation of the Delegated Powers and Regulatory Reform Committee that the requirements in the mandate should have the force of legislation and should be in an instrument subject to the negative procedure.

[Lord Owen]

It sounds very reasonable, but effectively the pre-consultation period will involve the board, HealthWatch England and such other persons as the Secretary of State allows. Parliament will not always be fobbed off with the answer that the Minister is still considering the issue. That is perfectly reasonable; we all know that a normal consultation period is required by all ministries, and certainly the Department of Health has observed this over many decades. It is when the Minister makes up his mind that Parliament will know what the policy is—and if it is in legislation it will be at that stage that there will be an intervention from Parliament with the right to challenge it. Therefore, it is perfectly reasonable to ask Parliament to come in after the consultation period because then it will know what the Secretary of State is proposing.

[Earl Howe]

Of course, Parliament is the sovereign body and can do whatever it chooses. Nothing will prevent it commenting on the mandate once it has been published. No doubt the Health Select Committee will wish to do this. My point is that to expect the process to feed into a regurgitation or reformulation of the mandate would be unfair on the NHS. The opportunity for Parliament to have its say should surely be during the normal consultation period. Parliament will be able to see the extent to which the Secretary of State has responded to whatever comments it has made.

--- Later in debate ---

[Earl Howe]

The noble Baroness knows that I have undertaken to engage in discussions outside this Chamber about Clauses 1 and 4 and their relationship with Clauses 10 and 20, and that is what I intend to do. There is a broader question here. My point to the noble Lord, Lord Owen, and the noble Lord, Lord Warner, who suggested in his opening speech that somehow the Secretary of State would detach himself and say, “Not me, guv” about anything that happened in the health service, is that they are mistaken because Clause 49 requires the Secretary of State to keep health service functions under review—in other words, not just the functions, but the effectiveness of the exercise by the bodies of those functions in relation to the health service. That is a very powerful duty. It is not a signal that the Secretary of State can just detach himself from what is going on in the health service. If he is holding the board to account, it involves him doing what Clause 49 requires, and I do not think that anything in the Bill negates that.

[Lord Owen]

The procedure in another place is deliberately very limited in terms of getting to a legislative change. This mandate has many of the qualities of legislation. It lasts for a year. It is going be a fixed statement. Is the Minister really telling us that the Secretary of State will not be saying that, because the mandate has been given, this is a question for the commission or the board—one which he would normally accept on the Floor of the House? Past experience is that he will pass that responsibility on the Floor of the House to, in this case, the commission. This is what concerns many people: there will be a change in procedure in how questions are answered in the House of Commons. The Minister has still not answered the question. This amendment allows a substantive change in the mandate that would stay for a year to be instituted by Parliament after it knows what is in the Minister’s mind, and he appears to be rejecting that. Is he rejecting that?

[Earl Howe]

I am surprised that the noble Lord, Lord Owen, thinks that the health service should be run in that way; that is, Parliament in effect mandating requirements to the health service whenever it chooses. I do not think that is a helpful idea. I think it is helpful for the Secretary of State, as now, to take responsibility for the health service but in the future to take direct responsibility for what lies in the mandate. Should events during a given year raise questions about the performance of the board, the Secretary of State would be answerable to Parliament for whatever the event was, and he would indeed have to take the necessary advice from the board. What he would not be saying is, “This is not my concern, guv”. He is answerable to Parliament in the ways that I have indicated. There is obviously a need for the board to take responsibility for the day-to-day management of the health service. However, we are seeking to achieve a balance between the Secretary of State taking responsibility in Parliament for what is in the mandate and the outcomes that he has set for the health service.

This is a shift of responsibility, it is not an abdication of responsibility—that is the distinction. Power is a zero sum game. If you shift power from the Secretary of State down to the health service, you cannot at the same time expect the Secretary of State to retain the same degree of power. We are transferring power in two directions; from the Secretary of State downwards, and from the Secretary of State upwards to Parliament. That is the picture that I hope noble Lords will keep in their minds.

--- Later in debate ---

[Lord Warner]

My Lords, I am seeking to set up something that would function in the early years of the national Commissioning Board. It would be independent in the sense that I did not want it to be dominated by NHS finance people. I want it to be a broader group of people than just those who have worked in the NHS. There is a tendency on the part of the NHS to think of itself as unique, special and different from other businesses, whereas it is a business which needs some business systems in it.

I am not someone who wants to keep bodies going in perpetuity. I am certainly open to negotiation on how long this one exists. I feel more strongly about the National Audit Office keeping an eye on this area. The national Commissioning Board needs some outside help to get this started, particularly in asset management, which is a long neglected area in the NHS, as I think the noble Baroness knows.

Some of the problems with PFI which she mentioned arise from the fact that the NHS has not had a track record of looking after its assets. It does not see them in the terms that a more commercial organisation would do. Many of the things that have gone wrong with PFI are not to do with there being anything inherently wrong with it, because it delivered a lot more hospitals more quickly and effectively than previous public procurement systems. What went wrong was the hubris in the NHS in many parts of the country about its ability to build a Taj Mahal district general hospital with some very dodgy income/revenue flows spread over time, most of the contracts being for 30 years. If one looks at the quality of some of the financial management in the NHS, it is not surprising that it could not do a very good job, even with some outside help, of getting a realistic idea of the revenue that it was likely to generate over 25 to 30 years to fund those projects.

[Lord Owen]

My Lords, I had not expected to intervene in this debate, but some of the things that I want to say may fit more naturally under this issue. The idea of having a standardised method of comparison right across the National Health Service is a very good one and it has merit if it comes initially from an independent group.

The Government have a special responsibility here, because, very soon after taking office, they encouraged the noble Lord, Lord Green, to look at all these areas, of which land and asset management was a very important part. We all know that this has not been coherently done in the past and that there are substantial land assets throughout the NHS.

As we go to smaller and more fragmented units, it is even more important that there is some structure which looks at land management across the board; otherwise it will be seen in a very narrow context. There may be a sale of some land asset which might quite appropriately have been offered to a neighbouring organisation, whether it is a commissioning group or a foundation hospital. The proposed body would cover all aspects, not just commissioning groups but foundation hospitals as well, and so I am very attracted to it.

The report of the noble Lord, Lord Green, said that not only did government not utilise the efficiencies of having an overall look at land management but also that it had no coherent way of achieving its procurement gains. Any large organisation looks across these areas and maximises the advantages that are available. Procurement has not been done very well in the National Health Service, so there is room for improvement whatever structure is implemented. In the past, regional health authorities had procurement functions and were able to negotiate substantially improved contracts because of the size of the procurement agency. I do not quite know what is going to happen in the procurement field. I therefore put the matter to the Minister so that he can perhaps indicate where he thinks it would be appropriate to raise the issue of procurement in future. Again, I say that the work needs to be done by independent people. That was the advantage of the Green report: he got his people from many different fields and focused on government as a whole. He did not look very closely at the NHS, but there is merit on both these questions of land and procurement in seeing whether we can achieve some economies of scale and in taking a fresh and independent look, which we have not had for some time.

Health and Social Care Bill

Lord Owen Excerpts

Monday 14th November 2011 Lords Chamber

[Lord Ribeiro]

I have listened to the debate with considerable interest, particularly as it brings to our attention the whole concept of Health Education England. I think Health Education England is a work in progress, and the reason I say that is that, as a result of the MMC/MTAS debacle that took place in 2006-07, one of the major recommendations of the inquiry that followed by Sir John Tooke was that a new body should be set up called Medical Education England. That recommendation was accepted by the Government at the time, and by the Opposition. It started work under the chairmanship of Dr Patricia Hamilton, who has come to this House to give her views on the development of education and training.

The reason I mention that is that Medical Education England was designed to deal with medicine. Yet, as the noble Baroness, Lady Emerton, has said, more than 50 per cent of the multiprofessional education budget actually goes on nurses and other non-medical members. Therefore, it is totally inappropriate to be moving on to a Medical Education England model when clearly we have to encompass all the other health providers, and hence we have Health Education England. I understand the desire of the noble Lord, Lord Warner, to get on with this but, to get this to work, it needs to be thought through very carefully. One of the reasons—certainly from the medical point of view—is that, among the questions we asked in 2006 was, “What is the end point of training? What are we training these doctors for?”. One has always assumed that most medical treatments will occur within the hospital sector but we know, because of the ageing population, that more and more is being done in general practice and in the community. We therefore need to think very carefully about how we train doctors for the future and where they are going to work.

It is important, therefore, that we give time for the development of the workforce as well as the training and the education of the workforce. The noble Baroness, Lady Finlay of Llandaff, referred to the Centre for Workforce Intelligence, which is very important, but that is a new agency. I was in America last year, when a representative from it came to brief the American College of Surgeons Health Policy Research Institute on how it was trying to work out where doctors should go within the UK with respect to geography as well as specialty. They were taking advice from the Americans as to how they were trying to map and plan their health workforce.

I think this is work in progress. I welcome that this is a probing amendment, but I do not feel that at present we are in a position to roll out Health Education England without having heard the full report from the Future Forum.

[Lord Owen]

My Lords, I reiterate some of the comments that have already been made by many noble Lords on the sense of urgency about this issue. Above all, I feel rather like the man in the Bateman cartoon who mentions the words “party politics” in the Health and Social Care Bill in the House of Lords. There is here a very deep question. It is frankly inconceivable that there will be legislation in the next Session; I would think it would be almost inconceivable that there would be legislation on this before the next election, which is currently scheduled for 2015. Politicians simply do not usually go in for a repeat hiding, and this Bill has already had one hell of a political controversy. If we have legislation, it may be all on medical education, but it opens up a whole realm of party politics, which I just do not see being done.

Therefore, I want to make a practical suggestion to the Minister. There is a way through this if there could be bipartisan agreement. One only has to think of a situation in which there is no legislation until 2016 to realise that we are facing a real chasm in medical education and continuity. As I understand the legislation, the Secretary of State is empowered to create special health authorities. Whether he does that or removes the ones that are necessary, that power is there. If not, he could easily take it in the Bill.

There is so much cross-party agreement that doing something about health education is pretty urgent. I would have thought that it would be perfectly possible to meet most of the demands. The noble Lord, Lord Ribeiro, is completely right. We are not in a position to legislate now on anything other than a structure. That structure might be a temporary special health authority. It is not worth prejudging the question but, if it was a special health authority, it would need some form of regulation passed. As long as an agreement could be made—first on the clause that would be in the Bill, along the lines more of Amendment 47B than 47A; and, secondly, with the main substantive regulations for the special health authority done through an affirmative resolution—then it would be perfectly possible for us to move on the creation of this training authority, which has to embrace all the health professions and be pretty wide-ranging, some time at the end of 2012 or early 2013. That would meet the wishes of most people in the National Health Service.

It is really not enough to rest on the fact that there will be a Bill in the next Session of Parliament. I have already tried to convince my own college, the Royal College of Physicians, that it is highly unlikely that this will be fulfilled. As practical politicians, we should ask the Minister to take this away with a measure of real good will to see if there is some way through this issue which does not prejudice the long-term future but allows us to fill a very serious gap.

[The Archbishop of York]

My Lords, I too support the amendment of the noble Lord, Lord Warner. Proposed new subsection (2) simply says that:

“In discharging this duty, the Secretary of State must establish a body known as”.

It does not tell us the rest of the details. It puts a duty on him or her to establish a body responsible for,

“the oversight, supervision and management of all current functions relating to NHS multi-disciplinary education and training, including post-graduate deaneries”.

How will it deliver that? What is going to be its content? That is for the Secretary of State in the future. But we fail in our responsibility if we miss the opportunity right now in the Bill to flag that up as part of the duty of the Secretary of State.

Noble Lords may remember from Second Reading that I spoke against supporting the Motion of the noble Lords, Lord Owen and Lord Hennessey, because I wanted to ensure that the constitutional duty of the Secretary of State is to promote a comprehensive health service and improve the quality of that service. I told the House that I have recently spent time in three different NHS hospitals: University College, London; St Thomas’s Hospital; and York Hospital. These are teaching hospitals. I was more than content that whenever the doctors saw me they came with a large range of nurses, doctors and those in training of all kinds. I became a guinea pig. I did not mind because I knew that I was in a training hospital. How are we to ensure that our National Health Service has that responsibility of making sure they are training hospitals? We must not assume that our NHS delivery of clinical care is almost like the assembly line of a motor car where you fix it and it goes out okay. It is not that kind of thing. What distinguishes most of the best clinical practice is the fact that our National Health Service has these training hospitals. I would be unhappy to know that the Secretary of State had not established a body, known as Health Education England, with responsibility,

“for the oversight, supervision and management of all current functions”.

Where will those lie when the Bill has been passed?

Last time, when we debated other amendments, there was a worry about the diagram of the proposed structure of NHS reforms in the Bill. I drew one up for myself. Listen: the Secretary of State is on top, then there are other bodies—Public Health England, HealthWatch England, the Care Quality Commission, Monitor, NICE, clinical senates and networks, the NHS Commissioning Board, local Healthwatches, health and well-being boards, the community voluntary sector, local government social and public health, and multiple clinical commissioning groups. Where is education in all this? When the Minister replies, will he tell us where he thinks education is going to lie? If it does not lie within this Bill, with its already very complicated structure, the next time I am being treated in the NHS I will be crying, “Where are those learning as I am being treated?”.

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.

Health and Social Care Bill

Lord Owen Excerpts

Wednesday 12th October 2011 Lords Chamber

Moved by

[Lord Owen]

As an amendment to the above motion, at end to insert, “and that a Select Committee shall be appointed to examine and make recommendations to the House on the issues raised by the 18th Report of the Constitution Committee, namely the Government’s and Parliament’s constitutional responsibilities with regard to the NHS, in particular to clarify (a) the extent to which the Secretary of State remains responsible and accountable for the comprehensive health service, and (b) individual Ministerial responsibility to Parliament, and to report on the extent to which legal accountability to the courts is fragmented; that this House requests that the services of Parliamentary Counsel be available to the Committee; and that the Committee shall report no later than 19 December 2011.”

[Lord Owen]

I shall try to be as brief as I can, but it is worth reminding the House that the procedure which I am advocating is not without precedent. On 8 March 2004 on the Constitutional Reform Bill, a Motion was moved by the noble and learned Lord, Lord Lloyd of Berwick, to leave out after,

“a Committee of the Whole House”,

and insert “a Select Committee”. I cannot avoid a little teasing by saying that the noble Earl, Lord Howe, voted for the Motion. Indeed, before he starts laughing, so did the Leader of the House, the noble Lord, Lord Strathclyde, and the noble and learned Lord, Lord Mackay of Clashfern, a man I have the utmost respect for and who has given a very compelling speech, voted for it too.

[Lord Mackay of Clashfern]

If I may say so, that was about committing the whole Bill to a Committee of the whole House and it is not, I think, a precedent for what the noble Lord is advocating now. It was quite different.

[Lord Owen]

I do not want the noble Lord, Lord Newton of Braintree, to escape either. Let me deal with that question. If we had moved this amendment regarding the whole Bill, everybody would have said that it was a blocking mechanism. Everybody would have said that we were effectively voting against Second Reading. It will not, I hope, have escaped the notice of noble Lords that I did not vote against Second Reading. Were I ever to vote against a Bill in this House, it would be after we had examined it and it is that examination which is now the question. Can we improve the Bill? So we entered into discussions to find a new way of dealing with it—it was done by my noble friend Lord Hennessy—and, to cut it very short, we reached a basic agreement on Wednesday night. We were asked to let the Government take this into consideration and we waited. In retrospect, we should probably have put the Motion down on Wednesday night.

We met again with the Leader of the House at 3 o’clock on Monday. The Leader of the House said, perfectly reasonably, that he could go along with this as long as he knew that the Bill would not be delayed. My noble friend and I said we thought it was absolutely reasonable that to protect the business of the House they wanted this Bill before the new Session. We had already made it clear that this would have to be reported out from Select Committee by 19 December, and that was acceptable. The clerks tell me they have to report it out. They may say they want more time but there has to be a report. So I think we have dealt with one of the problems.

The other problem was that we were not able to commit the House to the other date, which was when it would come out of the House. The shadow Leader of the House has made it very clear that if this Select Committee procedure went through, this Bill would finish its processes and come out by the middle of January. She was also generous enough to say that she would go along with a timetabling Motion that would not detract from the days given to debate on this. As far as possible, I thought it was understood that it would not detract from the days that were overall given to this House. It is for her to say, of course, because these are not matters that a Cross-Bencher can or should be involved in. However, it is reasonable for this House to explain that it needs a lot of consultation and a lot of time for this Bill. I am not going to get into the timing directly—maybe the shadow Leader would like to.

I would like to explain a little bit more about the thinking of my amendment and deal with the point about it being exceptional. When that Constitutional Reform Bill was referred, parliamentary counsel was made available to it. That is why in this Motion, and again it was discussed, we ask—because we can only make a request, but the noble Earl, Lord Howe, made it pretty clear that he would support it—that the services of parliamentary counsel would be made available.

Let me deal with the question of whether this is a better procedure than just leaving it to the normal procedures of the House, on the Floor. The most reverend Primate was correct when he argued why a Select Committee procedure would be the best way. A number of amendments need to be made to the Secretary of State’s powers and they have to be connected. It is a very complex and very long Bill. It is worth saying that this needs very careful study.

Now, what is this issue? The third leader in the Times today is entitled:

“The Bedpan Problem: Who’s in charge of the NHS?”

We all know the famous remark made by Aneurin Bevan that if a bedpan is dropped in a hospital corridor the reverberations should echo around Whitehall. We all know that this is an issue that has long faced the NHS, since 1948, and we all know that increasingly, with its complexity, size and the changes in medicine, the Secretary of State for Health could never manage the health service. I have made it clear that I think this problem has to be dealt with and some adjustment of what is said, even in the 2006 Act, might not be unreasonable, but it would have to be coherent; it would have to be put together by parliamentary draftsmen who know the Bill. I think that would cut down the amount of time we might wish to spend on the Floor of the House on this particular issue. Goodness knows, there are a number of other issues that will need a lot of time to give this full coverage.

Those noble Lords who genuinely think that they will get more out of a procedure on the Floor of the House should look at what happened to the amendments that were moved in Committee in the House of Commons on this question. Not a single one was accepted in the initial stages; it was only when the pause took place. That is already unprecedented. I agree there should not be delay but a matter of a week or two is a little rich coming from a Government who are responsible for taking it out of Committee in the House and having a long consultation. I praise the work of the forum.

The medical profession has had a good go at this Bill and I am not complaining about that. I do not want to be on the Select Committee myself. The work should be carried out by people with a legal frame of mind and a constitutional frame of mind who are used to looking at a Bill as a whole and trying to bring some coherence to it. That is what lay behind the thinking of myself and my noble friend Lord Hennessy.

This is not a delaying measure. If I was opposing the amendment, I would be saying that it was a delaying measure but it is clearly not. Two dates have been agreed. If it goes to a Select Committee, it has to report back by 19 December and if it goes to the Floor of the House simultaneously that will not cause delay. The shadow Leader of the House has given her word that in those circumstances—she stressed “in those circumstances”—the Bill would come out by the middle of January. There is no delay so let us not have that argument. It is a perfectly fair argument for people who wish to spend time on the Bill purely on the Floor of the House. I believe that this proposal would supplement the scrutiny of this Bill.

There is another issue I wish to draw attention to, particularly for those who have not been in the debate. We need to remember that an all-party Select Committee of this House unanimously reported to this House its concerns about this Bill. Those words and its concerns are reflected in my amendment. They are not my words—they come directly from the Constitution Committee. We also had on the morning of the debate a letter from the noble Earl, Lord Howe, which should be read by those who think that by using normal procedures changes will be made on this issue. He said about the Bill,

“the Government does not believe that this in any way diminishes ultimate ministerial accountability or responsibility for the NHS. Indeed we believe the measures set out in it strengthen and make accountability and responsibility clearer than it has ever been. We do not consider any amendments necessary to put this matter ‘beyond legal doubt’”.

You have to be a super-optimist if you think that you are going to get great changes. Only the weight of an all-party and probably unanimous Select Committee will give the weight to make this change.

[Lord Ashdown of Norton-sub-Hamdon]

I apologise to the noble Lord and the House for not being here yesterday to listen to the debate. A member of my family spent yesterday in the care of the National Health Service and I felt it was more appropriate that I was with her than here.

The case by the noble Lord that lies behind this amendment is that a Select Committee is better than the Floor of the House in dealing with a Bill that comes to us which is defective in certain ways. He draws a comparison with the House of Commons but surely that does not take into account that the House of Commons is not constructed as we are constructed and does not have the same role as we have. Our role is as a revising Chamber. I say to the honourable Gentleman—forgive me, I mean the noble Lord—that I find it difficult to understand why a Select Committee of which few of us can be members will be better at holding this Bill to account than dealing with it in the circumstances of this House where all of us can be involved.

Here is the question. If it is the noble Lord’s case that a serious and complex Bill brought to us in a defective manner from the House of Commons is not able to be dealt with on the Floor of this House but must go to a Select Committee, what on earth is our function?

[Lord Owen]

It would have been easier if the honourable Gentleman—I mean the noble Lord; I am used to thinking of him in another place—had been able to spend the time here and heard the debate. I do not want to delay the House. I gave way to him because, as a former Leader of the Liberal Democrats, it is important that his voice should be heard but this is a question for the House as a whole and I do not wish to delay any longer. I leave this for the judgment of the House.

[Baroness Royall of Blaisdon]

My Lords, I crave the indulgence of the House to confirm one point that was clarified by the noble Lord. I do not advocate any timetabling Motion: that would not be appropriate for the House. I give the assurance that, were the noble Lord’s amendment to be agreed, my Benches would wish the Bill to be out of Committee by mid-January. However, if the amendment is not accepted, it will be right and proper for the usual channels to discuss the appropriate number of days needed in the light of this excellent Second Reading debate. I cite the excellent speeches made by many noble Lords, including the wise words of the noble Lord, Lord Walton of Detchant, who spoke before me last night and who said that enough time must be given. He is absolutely right. I have no intention of delaying the Bill. My intention is to ensure that there is proper agreement between the usual channels on the appropriate amount of time that the Bill needs in Committee.

Health and Social Care Bill

Lord Owen Excerpts

Tuesday 11th October 2011 Lords Chamber

[Lord Owen]

My Lords, I speak, obviously, in favour of the Motion in my name but also to explain how it has come about. My noble friend Lord Hennessy and I have been involved with the Government, and particularly the noble Earl, Lord Howe, for over two hours of very serious negotiations on two occasions. He treated us at all times with great consideration, as we would expect, and we explored the concept of a different form of Select Committee than had been earlier envisaged. We changed our position and I think it would not be unfair to say that he changed his position. As he said, we came very close to agreement. The only reason we have not been able to come to an agreement is, as he said, that we were not able, Lord Hennessy the noble Lord, and I,

“to agree to a strict timetable on how to proceed”.

Now let me explain. We are individual Cross-Benchers and so do not take part in discussions on the allocation of time. We were ready to go with the Leader of the House as far as we could, in that we said that if this went to a Select Committee and we changed the Select Committee’s remit just to relate to the issues raised by this all-party report of the Constitution Committee, we were ready to take account of all these things. But the one thing we could not do is form a judgment on how much time this House should spend on the whole of this Bill. We went one step further. We said that, since they were thinking in terms of two days on the Floor of the House early in January, after the report of the Select Committee came back to the House on 19 December, then that would be a fair allocation of time. But we could not go that step further. We came back and talked to the Convenor of the Cross-Bench Peers and he went immediately to speak to the Leader of the House, the noble Lord, Lord Strathclyde, to say that this was not the role of Cross-Benchers and that he would not be happy for Cross-Benchers to get involved in this area. So that is the reason.

But let me explain to the House, the Select Committee and, particularly, to the last speaker. I would like to go to the essence of the health service. I got into trouble when I was Minister of Health for using the words “a rationed health service”. I have repeated that on many, many occasions. Health spending is almost unlimited. We ration the health service and yet it remains enormously popular with the public. It is the one institution which no political party up until now has really threatened. Why is this? There are many reasons, but I do believe that a deep reason is that the public think that the rationing process is fair: that it is rooted in democracy, it is rooted in Parliament.

The purists have got at this Bill. I am a reformer. I was the first person to advocate an internal market in the National Health Service, but I never believed that it would lead to an external market—a pure market. Health is not a public utility. Health is different. Sometimes the health professions have talked too much about money to Ministers of Health, as Enoch Powell said, in a classic speech. We must cherish the fact that it is a pool of altruism in our society. It is different. People commit hours of time—surgeons and porters, nurses and physiotherapists—far beyond the call of duty, ignoring the EU directives, time after time. Are we going to foster that; are we going to keep it?

The other purist issue of this Bill is first to go for an external market and secondly to think that you can separate out the running of the health service entirely, in its production, from the Secretary of State. The Secretary of State’s role has never been, for many years, to manage the health service, in the strictest sense. This Bill has, in my view, some good provisions relating to decentralisation of the health service and it is, of course, right that there should be some re-adjustment of the management role of the Secretary of State, making it a bit more explicit about that which is going to be delegated. But you must preserve a role for the Secretary of State.

I am very worried that this Bill does not deal with what would happen in a pandemic. In a pandemic that suddenly grips this country we will not be able to accept that the health service is managed by the chairman of the National Health Service Commissioning Board. We will instinctively come back to the Houses of Parliament. When inflation was running at nearly 28 per cent in the early 1970s, we had to adjust area health budgets not just on a monthly basis but on a weekly one. That dialogue with the Treasury had to take place between Ministers. Barbara Castle was a Minister who was formidable in extracting money almost day after day to deal with the inflationary situation. The Secretary of State cannot stand aside from all these things. I see a former Chancellor of the Exchequer, the noble Lord, Lord Lawson. He knows too that in a rationing process it is not just what you spend by the state, it is also what you spend privately. It is the total budget that health takes. And if it gets too high, as it has undoubtedly done in the United States, it takes away from other private or public sectors. So this rationing process is one in which we are all involved. A Select Committee is the only procedure that can look at the complexity of this new relationship that we are trying to establish. If we get it wrong, we will be in very serious trouble.

The whole process of how we deal with failures must be dealt with. We admit there are going to be failures in some trust hospitals. There are going to be failures in some commissioning groups. If there was widespread failure, I think the public would find it very difficult that the issue was only being dealt with by the chairman of a quango — the largest quango we have ever created in this country.

I therefore beg the House to seriously consider this Motion. It is not a blocking measure, as my noble friend and I have made it absolutely clear. We accept that this is a reforming Chamber. Outside, at this moment, people are assembling a petition to support the idea of a Select Committee looking at the role of the Secretary of State. It is gathering momentum as I speak and I hope the House will listen to that before it goes and rejects this Motion. I am surprised by the tone of the Government’s reply to the Select Committee, which I got just this morning before we started. I stress this is an all-party, unanimous Select Committee. I leave it to the chairman of that committee, who is speaking after me, to deal with these issues.

Cherish the fact that the NHS is one of the most popular public institutions in our country. Look hard at how we can retain that. Do not believe that, in adversarial debates across the floor of this House, you can get the balance right—the new balance that is needed for the Secretary of State for Health.

--- Later in debate ---

[Lord Naseby]

My Lords, all my political life of some 40 years plus, I have been involved in debating the National Health Service. Reflecting on that time, this Bill is probably the most important debate on it over those years. I want to make it clear that I support the Bill. More importantly, I support the need for the Bill. The need is clear because we do not today have an NHS that is the envy of the world, which is something to which all of us in this Chamber would aspire.

Numerous problems need to be tackled, many of which were not tackled by the previous Government. Unless they are tackled in the near future, the outcomes for NHS patients will deteriorate. I compliment the previous Government on what they did as regards funding; namely, to increase the NHS budget, bringing it up as a percentage of GDP that is fairly comparable to France and Germany. But, sadly, whatever the noble Lord, Lord Rea, may think, read or say, we do not have a health service comparable to either of those countries.

However, the crying shame and legacy of that increased expenditure is that it was not achieved with productivity at the same time. The result is that the service is not able today to handle the demand, nor is it able to properly control its budgets and expenditure. We know therefore that, as a result, there is the problem of £20 million of efficiency savings left by the previous Government for the coalition to deal with.

The first challenge is how to get a real grip on expenditure to ensure that money is spent on patient care and not on bureaucracy. That is at the heart of the strategy of why my ministerial friends have produced this Bill. I personally welcome the end of PCTs, the removal of the other layers of bureaucracy and their replacement by GP commissioning. After all, we previously had GP fundholding, which worked really well for those who took part, particularly for patients as waiting times were driven down and minor surgery blossomed. But the problem was that it was not compulsory.

I recognise that this is a Second Reading debate. Therefore, we need to look at all the many representations that I and others in your Lordships’ House have had in Committee, but not today. But I want to highlight some of the key issues that are sitting there writ large. Nursing standards in the NHS have fallen. The evidence is there for all to see. Somehow, the NHS and the Royal College of Nursing have to get a grip on this issue and have a total review of the training, the responsibilities, the supply for general nursing and for specialists, and, above all, the attitude of those nursing patients.

On the speaking of English, for too long the NHS has gone out and recruited doctors and nurses in huge numbers overseas and, allegedly, someone has checked their English. But we all know that that has not happened properly. There now needs to be a rigorous system of the checking of qualifications and the ability to speak English, particularly the ability to understand English in a medical context.

Perhaps more controversially, we need to have a long look at medical students. There is a clear need to review the number in training of doctors, nurses, physios et cetera. I have to say that, for one reason or another, today’s medical school intake—the majority of whom are now women—is not working. I do not know why women do not stay in medicine but the majority of them do not. Medical schools need to look at this. The net result is that we have too few senior doctors because the female medical students have not stayed for too long in the service.

Why do we still have mixed wards in this country? We must be the only leading country in the world that still has mixed wards. I say to my noble friend on the Front Bench that I hope he will have a mission—for as long as he is on the Front Bench—to get rid of all mixed wards.

I have spoken previously on medicine, which I know something about in detail. GPs are one of the key gatekeepers and they are assisted by modern medicines, thus reducing the problems for hospital care. It is interesting that the money spent on medicines as a percentage of total healthcare spending has not changed very much over the decades. The NHS has to resist buying always at the cheapest level. It also needs to stop making its own medicines, as it does in certain hospitals. I am very sorry to say that an increasing problem is one of false and counterfeit medicines, to which somehow we need to find an answer.

There needs to be a better understanding of the appropriate relationship between the pharmaceutical industry and the NHS. There needs to be an understanding that incremental improvements in drugs are to be valued and not rejected. If we are not careful and do not get that relationship right, we shall end up with more problems similar to Pfizer’s withdrawal from Sandwich.

Frankly, I think that there is something wrong with NICE. Why does it take longer than any other comparable body? Why does it refuse medicines that are accepted in Europe and even accepted in Scotland? I will not comment on community care, other than to say that it is a key issue in the Bill, which we all know needs to be looked at in huge depth.

Finally, competition is good for any industry. It makes it possible for new innovations, for better value for money and for solutions to be found. Competition gives people pride and responsibility. Even within the NHS there are numerous examples. To highlight eye care, what a transformation there has been from 20 or 30 years ago. The state does not have to undertake everything. It has to be a demanding purchaser, an experienced demanding purchaser, and vigorously assess outcomes.

I welcome this Bill and the Government’s attempt to carry out change in a single, coherent programme, rather than a series of piecemeal initiatives, which is what we have had recently. The idea of having a Select Committee is totally inappropriate. I hope that the noble Lord, Lord Owen, will recognise what the noble Lord, Lord Darzi, said. We need to move forward. The NHS needs to know where it is going. Yes, the issue is important but it does not need a separate Select Committee to find an answer.

[Lord Owen]

The noble Lord must accept that this will not delay the Bill in any stages. The recommendations will be made by 19 December and the House will be considering this Bill into January at the very least.

[Lord Naseby]

I am sure that the House will be debating the Bill but the noble Lord cannot guarantee exactly when he will come back. He has already said that he could not. I am very sorry, but that would be a further delay, which would stir things up and provide some means of making it more difficult for the Bill to go through. This Bill needs to make progress to improve patient care and it does not need to be thwarted by delay. It is a unique opportunity, which we should grab with both hands, to give the NHS some real leadership. Above all, we should remember that the patient has to come first.

NHS: Standards of Care and Commissioning

Lord Owen Excerpts

Thursday 31st March 2011 Lords Chamber

[Lord Owen]

The NHS is dear to us all, and the care and health professions have made a difference to pretty well every family in this country. However, the 353 pages of the Health and Social Care Bill are a massive reform, and we should not underrate the basic fatal flaws in this legislation, although of course there is much that we can all recommend and be pleased to see.

The health service is a rationed service. A lot of the acceptance of and satisfaction with that rationing has come from its democratic basis and the feeling that it is done in a democratic and acceptable way. That is challenged by the Bill and by a massive change in the responsibilities of the Secretary of State. The fatal flaw is to move on from the internal market—a reform introduced by successive political parties that was initially quite controversial but, I believe, has done a lot to encourage cost-effectiveness and efficiency in the health service—and to cross that threshold to an external market.

This Bill needs to be substantially amended, not just at Report stage in the other place—it has not yet been amended in Committee—but when it comes to this House. In my view, it is not in the interests of anyone to include “any willing provider”, which would inevitably involve EU competition law and legal cases about commissioning decisions. Nor is it in anyone’s interest that we should make costs and pricing the basic decision on where a patient is allocated. That would have profound effects on the relationships between patients and the general practitioners, consultants and managers who have to make these rationing choices.

Deep and fundamental problems underlie this Bill. I hope that when it comes to this House we will use the unusual but nevertheless precedented position of giving it a Second Reading but only on condition that it is referred to a Select Committee of this House in order to give it far deeper and more fundamental attention. This Bill should have had a full pre-legislative committee. It has not got it. Listening to this debate, it seems to me that we are not reflecting the anger, disillusionment and despair of many people outside this House about this legislation. Were the Bill to pass in its present form, it would do horrendous damage to the health service—not immediately, but slowly and imperceptibly. It would also damage the professionalism, care and intimacy of the one-on-one patient-nurse and doctor-patient relationships, which I believe are so essential.

Health is not just a commodity to be bought and sold in the market. It is not a utility in which everyone should be treated as if they are commodity managers. We must understand that and the fundamental issues which are being challenged by this Bill. Perhaps they are being challenged inadvertently but, nevertheless, that is happening. Extensive amendments have already been talked about. Why was the Bill in that condition? I urge this House at Second Reading to refer it to a Select Committee—perhaps for six months until after the Summer Recess. Then we could come back to the normal amendments and, if necessary, the ping-pong between both Houses. Ultimately, I would not hesitate to delay this Bill for the statutory period if the House of Commons does not accept amendment procedure in this House. Fundamental amendments are needed. This is not a minor piece of legislation or a part of the evolutionary change we have had since 1948; it is a revolutionary change and, in some parts, a very bad change.

--- Later in debate ---

[Earl Howe]

Yes, my Lords. However, if the noble Lord will forgive me, I do not propose to take many interventions as the time is limited. As I say, the answer to his question is yes.

Those who question the effectiveness of these arrangements should focus on the new framework of accountability that we are proposing as it is central. The new NHS will be more directly accountable than it is now. Because of that our reforms introduce a stronger national framework for driving quality improvement than ever before. How will this accountability work? The Secretary of State will hold the NHS Commissioning Board to account for delivery against the NHS outcomes framework, published in December. The NHS Commissioning Board will then hold individual consortia to account for their performance against the indicators set out in the more locally focused commissioning outcomes framework. There was widespread and strong support for such a framework during our consultation.

The NHS Commissioning Board will decide on the shape and content of the commissioning outcomes framework over the next two years, working closely with emerging consortia and with professional and patient groups. To help maintain momentum, the department will shortly publish a discussion document, seeking more detailed views on possible features of the framework. The Health and Social Care Bill contains a new duty of quality. The NHS Commissioning Board and GP consortia will be required continually to improve the quality of NHS services. Underpinning that, the Care Quality Commission will regulate providers on safety and quality, with wide-ranging enforcement powers to protect patients should providers fail to meet requirements. Accountability works in its fullest sense only if there is transparency. We will publish clear, easy to understand information on the quality of healthcare services and the progress being made to reduce health inequalities. We also propose, subject to the passage of the Bill, that the NHS Commissioning Board be able to make payments to consortia in recognition of the outcomes they achieve collaboratively through commissioning and the effectiveness with which they manage their financial resources.

How will quality be driven through the commissioning system? Quality standards, prepared by NICE, will be at the centre of it. Quality standards bring clarity to quality, providing definitive and authoritative statements of high-quality care, based on evidence of what works best. Quality of care does not cover just the effectiveness of that care but also includes patient safety and patient experience. The three domains of quality are interconnected: they cannot exist in isolation. The Royal College of Physicians reflected on this point in its response to the consultation on the NHS outcomes framework and acknowledged that healthcare that is not safe could not be described as efficient, effective or sustainable.

Our reforms will allow a re-established NICE to produce a broad library of quality standards that will cover the majority of NHS services. NICE will also develop quality standards for social care and public health. The Secretary of State and the NHS Commissioning Board will be able to commission quality standards jointly, which will open up the opportunity for standards to cover the whole care pathway, from public health interventions in primary care through to rehabilitation and long-term support in social care, and will support the integration of health and social care services. It is important to understand that quality standards will do more than just bring clarity to quality: they will have real traction within the system, underpinning the duty of quality and linking with the new best practice tariffs that will see providers paid more for better care.

GP consortia will have a duty to support the NHS Commissioning Board in continuously improving the quality of primary medical care services. That does not alter the board's overarching responsibility for commissioning GP services and holding GP contracts. But it does mean that consortia will play a systematic role in helping to monitor, benchmark and improve the quality of GP services, including through clinical governance and clinical audit. It means also that consortia will have a core role in improving patient care across the system. That will include both the quality and accessibility of the care that GP practices provide and the wider services that consortia commission on behalf of patients.

Where does the Secretary of State sit in all this? The Health and Social Care Bill strengthens the accountability of the Secretary of State to Parliament for the provision of the comprehensive health service. For the first time, the Secretary of State will have to report each year on the performance of the health service, consult on the annual objectives set for the NHS through a mandate, and lay both documents before Parliament. The NHS Commissioning Board will be accountable to the Secretary of State for delivering against that mandate.

Nursing has been a strong theme in the debate. The noble Baroness, Lady Emerton, asked when the Government's response to the report of the commission on nursing will be published. I can assure her that the Government will respond soon to the commission's report and I apologise for not having given her an undertaking to that effect sooner. The noble Lord, Lord Turnberg, and the noble Lord, Lord Winston, raised concerns about nursing standards in hospitals. As they know, we now have matrons in post. They have a specific remit for quality of patient experience and should be accessible to patients and carers. Matrons are directly accountable to directors of nursing, who should present ward-to-board reports. We launched the Principles of Nursing Practice in November last year. This sets out an agreed set of standards and behaviours that were developed by the Royal College of Nursing in association with patient groups. These principles reinforce the NHS constitution.

The noble Lord, Lord Turnberg, asked about the duty of consortia to improve the quality of care for older people. There is no specific duty in the Bill relating to consortia and older people. However, we propose a new duty for consortia to seek continuous improvements in the quality of services for patients and in outcomes, with particular regard to clinical effectiveness, safety and patient experience. That extends to all aspects of care.

The noble Baroness, Lady Sherlock, spoke about the recent King's Fund report. The report highlights particular variation in relation to patient involvement in decision-making, and in co-ordination and continuity of care. It also highlights the need for changes in leadership and culture. We have a strong system of general practice in this country, but we agree absolutely with the report that there is too much variation in quality. This reinforces the case for GP decommissioning, because one of the key aims behind the development of GP commissioning is for consortia to play a central role in helping to reduce variation and drive up the quality of general practice. There will be strong incentives for GP consortia to want to tackle these variations, because with lower-quality primary care one achieves poorer outcomes for patients and one has greater pressure on more expensive secondary care services.

The noble Baroness, Lady Sherlock, questioned whether the Government were allowing enough time to see whether the changes would work. With the introduction of shadow bodies and early implementers, we are allowing almost three years to consult, to dry-run and to put our reforms into practice on the ground, so that by 2013 the new organisations will have had time to secure capability collectively. Therefore, it is wrong to say that the house is being demolished; in many senses, we are refashioning some parts of the existing edifice.

On that theme, the noble Baroness, Lady Pitkeathley, asked how consortia will be authorised, given their different states of readiness. The pathfinder programme is, I think, central to sharing learning across emerging consortia, and it is a crucial part of their development to take on full commissioning responsibilities. Consortia will not have statutory responsibility for commissioning until April 2013, so the intervening period will allow all consortia to be ready by that time.

We listened to an impassioned speech from the noble Lord, Lord Owen, who criticised the Health and Social Care Bill on a number of fronts. Time prevents me setting out a detailed set of counterarguments but perhaps I may just say to him that we have tabled amendments to the Bill that will put beyond doubt that competition will be on the basis of quality and not price. Far from challenging the principles of the NHS, we have consistently made it clear that we are absolutely committed to a comprehensive National Health Service which is free at the point of use and is based on need rather than ability to pay. Nothing in our plans changes that.

The noble Lord criticised the policy of “any willing provider”, or “any qualified provider” as we are now calling it, because we think that that is a better description of the policy. The noble Baroness, Lady Thornton, did the same. “Any qualified provider” is about empowering patients and carers, improving their outcomes and experience, enabling innovation, and freeing up clinicians to drive change and improve practice. Introducing a choice of any qualified provider will give patients more control. That is what all the research evidence tells us they want and increasingly expect from the NHS. Why should not someone with MS be able to choose the physiotherapist they want and be treated at the time and in the setting that best suits their need? Why should not a patient, at the end of their life, choose their hospice provider? Patients are already able to choose from any provider that meets NHS standards and prices when they are referred for a first out-patient appointment to a consultant-led team. That was an innovation brought in by the previous Government. “Any qualified provider” will extend that principle to more providers and more services, including social enterprises and charities, particularly in community care. For the life of me, I cannot see what is wrong with that. Money will follow the patient and the choices they make about where and by whom they are treated.

The noble Lord, Lord Owen, indicated his belief that the policies that the Government are advancing will damage clinical professionalism and remove the intimacy inherent in the doctor/patient relationship. I say to the noble Lord gently and with huge respect that I do not believe he has any basis whatever for suggesting that. I would argue, on the contrary, that clinically-led commissioning brings the design of services closer to patients.

[Lord Owen]

Will the Minister ensure that the phrase “any qualified provider” will not involve EU competition policy and the possibility of legal action being taken in a commissioning decision?