Health and Social Care Bill

Debate between Lord Owen and Lord Harris of Haringey

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.

Health and Social Care Bill

Debate between Lord Owen and Lord Harris of Haringey

Tuesday 25th October 2011 Lords Chamber

[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.