NHS: Risk Register

Lord Peston Excerpts

Tuesday 15th May 2012 Lords Chamber

[Earl Howe]

My noble friend makes an extremely good point because there are sensitive matters that any Government will inevitably wish to keep confidential if good government is to be maintained.

[Lord Peston]

My Lords, it is trivially obvious that all decision-making—

[Baroness Jolly]

My Lords—

--- Later in debate ---

[Earl Howe]

In answer to that characteristically helpful question from my noble friend, the department will put in place thorough programme-management arrangements as it takes forward the draft care and support Bill and plans for its implementation. That will include monitoring and assessing risks as they arise, to ensure smooth passage through to implementation.

[Lord Peston]

My Lords, I repeat what I said last time: it really is about time that the Liberal Democrats recognised that they are part of the government side. Everyone is getting quite fed up with this demand to be treated separately.

Is it not trivially obvious that all decision-making involves risks and therefore the Government’s refusal to publish this register would cause a reasonable person outside to come to the conclusion, much as the Minister might dislike this, that the Government really are trying to hide something that was damaging to them?

[Earl Howe]

My Lords, I cannot answer for those who see something suspicious in what the Government are doing. All I can say is that we are absolutely clear that the circumstances in this case were exceptional. The FOI request from Mr Healey was made at a particularly sensitive time when the need for a safe space for civil servants and Ministers was especially high. The Freedom of Information Act was drafted specifically to allow for the ministerial veto. It is not just about the specific content of the risk register; it is also about preserving risk registers in general as frank internal working tools in the interests of good government.

Health and Social Care Bill

Lord Peston Excerpts

Monday 19th March 2012 Lords Chamber

[Lord Birt]

I shall come to the risks of publication in a second. What are the means of creating an effective risk register? You need to involve those in governance and delivery and you need absolute candour and trust in the process. The consequence of making any risk register public is that it will be anodyne and the risks would simply cease to be managed, which is not in the public interest. I would hope that Governments of any persuasion would resist the notion of publishing any risk register. It is a matter of regret that one risk register in respect of Heathrow was published. It follows from that that I am unable to support the amendment.

[Lord Peston]

I support the noble Lord, Lord Owen, in what I regard as a special case. I think he, too, is arguing that this is a special case. As background, perhaps I may refer to my experience last week when I spent quite a long time at St Thomas’s Hospital, where I think the noble Lord, Lord Owen, was a most distinguished graduate. I was an NHS patient and my experience was of a service working exceptionally well medically, not wasting resources, and staffed by people devoted to the care of patients. Those to whom I spoke told me that that was why they had entered the medical profession; they wanted to work in hospitals. In other words, my experience was diametrically opposed to the basis on which this whole Bill is put forward by the Secretary of State, who constantly attacks the NHS, constantly argues that it wastes resources and constantly argues that it needs private sector involvement in order to make it work properly.

The reason for wishing to see the risk register, which I regard as fundamental in this case, is to ask the question: was the Secretary of State warned of this? Did anyone place before him the information and the argument that his account of the NHS does not correspond to reality as experienced by those of us who use it? That is why it seems to me that the noble Lord, Lord Owen, is asking to see the documentation. Those of us who have advised Governments are perfectly well aware that Ministers have many different views put before them. We are perfectly well aware that civil servants have their own agendas and there is nothing surprising about that. Equally, those of us who have advised Governments know that all decision-making involves risks, so to try to pretend that there is no risk and that there is a case for keeping it secret seems preposterous.

Last week, we heard the approach of those who are still dyed-in-the-wool opponents of anything appearing in the public domain. I hate to say it but such people were involved with our own Government not that long ago, although I thought that we had abandoned those days and that openness had become our touchstone. Last week, I said to the Minister that when I gave advice, I would have been insulted at the suggestion that I did not say to a Minister what I actually thought and, if I were told that what I had said was in the public domain and asked to tone down my remarks that what they were thinking of was stupid, I would not have done so. Addressing the Minister directly, I add that the 30-year rule has given some of us considerable embarrassment. Some of the things I said in the past turned out to be absolute balderdash but I can live with that because it is what I thought at the time. It turns out that I was wrong.

The path that the noble Lord, Lord Owen, wants to take us down is, as a special case, precisely the correct one. I do not think it will destroy our Civil Service; it will not cause honest men and women suddenly to start telling lies in order to ingratiate themselves with the Minister. I am absolutely certain this is a special case which your Lordships should espouse.

Health and Social Care Bill

Lord Peston Excerpts

Monday 12th March 2012 Lords Chamber

[Earl Howe]

My Lords, I am the first to acknowledge the concern among noble Lords to be fully and properly informed about the risks associated with the Health and Social Care Bill. As I say, we have done as much as we can to implement that intent without transgressing what we still see as a point of principle regarding risk registers. My answer to the noble Lord is that I do not believe it is necessary to postpone Third Reading but we clearly have to debate the Motion in the name of the noble Lord, Lord Owen. At that point, the House will decide whether it is content to give the Bill further consideration.

[Lord Peston]

Can we go back to first principles, which the noble Earl raised? I speak as someone who has been an adviser. Is he saying that officials would not give their honest view of the risks that policies might incur if their advice was made public? If you believe in open government—certainly, if you believe as an official that your duty is to advise Ministers as best you can and, therefore, you will outline the risks—is that not altogether a good thing? It is not a principle that the Government ought to espouse, rather than say that they do not want to go down that path?

[Earl Howe]

My Lords, civil servants may not wish to put in jeopardy a policy that they are working on by using language that could be—indeed, is certain to be—misinterpreted or sensationalised, or that could cause embarrassment if exposed to the public gaze. Without full candour, risk registers across government would become bland and anodyne. Effectively, they would cease to be of practical value. That is the fear that has been expressed across government.

Health and Social Care Bill

Lord Peston Excerpts

Tuesday 25th October 2011 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, in 1946, the then Government promoted the National Health Service. They did so in the National Health Service Act 1946. Section 1 of that Act states:

“It shall be the duty of the Minister of Health (hereafter in this Act referred to as ‘the Minister’) to promote the establishment in England and Wales of a comprehensive health service designed to secure improvement in the physical and mental health of the people of England and Wales and the prevention, diagnosis and treatment of illness, and for that purpose to provide or secure the effective provision of services in accordance with the following provisions of this Act”.

Section 1(2) states:

“The services so provided shall be free of charge, except where any provision of this Act expressly provides for the making and recovery of charges”.

These are plain, clear, concise words which completely incorporate the fundamental principles of the National Health Service, as they have done since 1946. What is more, these provisions are enforceable at law, as the decision quoted by the Constitution Committee shows. They are enforceable in law, clearly, easily, without difficulty.

The previous Labour Administration had many skilled Ministers in the Department of Health to my certain knowledge and I pay my warmest tribute to them. One of them was the noble Lord, Lord Darzi, and during his watch in this House the National Health Service constitution was promoted. As some of my noble friends have said, that was agreed by all parties. The noble Lord, on behalf of the Government, declined to put that in a statute. I questioned that, because if we are dealing with the constitution of the service, one would think that it should go into the statute that is the fundamental part of setting up the service.

The Act of Parliament incorporated a duty such as referred to in the first part of this amendment, to have regard to the constitution. Everyone in the health service had to have regard to the constitution. The Government declined to put that into legislation. When I asked the noble Lord, Lord Darzi, why that was, he explained that he did not wish the constitution of the NHS to become a plaything for lawyers.

Noble Lords will understand that that reason was not particularly attractive to me. On the other hand, the sense of what he was saying certainly was, and I accept that it was wise and is still wise. The obligation to have regard to the constitution is fundamental and remains. However, I do not believe that it is possible for us to provide a simpler, clearer and more effective preamble to the National Health Service Act at any time than that which was thought of by the founding fathers of the National Health Service in 1946.

I should point out that this is not strictly a preamble at all; it is a first clause in the Bill. However appropriate some of these sentiments may have been for a resolution at a party conference, they are not suitable for an Act of Parliament, in my respectful submission, because the provisions in an Act of Parliament should be enforceable. When we have such a clear constitution of the NHS and such a fine example in what was provided by the founding fathers, which is enforceable, I respectfully suggest that it is unwise to muddy the waters now. I embrace all the sentiments expressed in this draft amendment and hope that we will have them in mind as we go through our later deliberations. All the sentiments are very acceptable, with the exception of the one about the market, which I find a little difficult. However, I will not elaborate on that now.

I am extremely grateful to the noble Baroness, Lady Thornton, and the noble Lords, Lord Hennessy and Lord Owen, for discussing this matter with me yesterday. I greatly profited from that discussion. It took me back to the beginning of 1946 when I was a second-year student at university. I remember that one of the difficulties envisaged in the founding of the health service was the fact that family doctors—GPs—did not wish to be employed by the Government. Therefore, the constitution provided that the Secretary of State had to provide the service—he did that from time to time at the beginning in hospitals and so on—or secure the provision of the service. “Secure the provision” was, of course, the one operative for GPs. That has served us well. As far as I am concerned, the proposed constitution, however one appreciates the principles that it expresses, is neither as clear or precise nor as readily enforceable as what we have. I respectfully suggest to the noble Baroness that she might wish to consider that aspect.

[Lord Peston]

My Lords, I, too, support my noble friend Lady Thornton. I suffer from the disadvantage that it seems to me the amendments are totally clear and it is perfectly obvious what they are saying. I totally agree with them for one specific reason which noble Lords opposite will find extremely disagreeable; namely, that I believe that this Bill paves the way for the end of the National Health Service as it was founded and as we know it and have experienced it. The whole purpose of our deliberations in Committee is to try to save the National Health Service. I am not optimistic that we can do it, because the Government do not seem to be in listening mode on this Bill.

The noble Lord, Lord Hennessy, puts his finger on the main question here, which is the ethos of the National Health Service. If someone does not understand the difference between a market ethos and, if you like, a public service ethos, they ought not to be taking part in these debates, as the two are completely different. The purpose of a market ethos is to make money and perhaps then do good as a result. I refer to the famous Adam Smith quotation regarding the baker and the butcher and why they provide their services. However, that is not the nature of the health service. Noble Lords opposite cannot wriggle out of that.

Noble Lords may also find it disagreeable that the only reason I am alive today and addressing them is because I have had marvellous service from the NHS over the past few years in my time of need. That service was as good as any that one could pay for. I, of course, paid for it though my taxes, but you cannot buy a better service. That is the fundamental point, and noble Lords opposite cannot wriggle out. If they support the Bill and do not like these amendments, they are paving the way for the end of the service as we know it.

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[Lord Ribeiro]

My Lords, I am grateful to my noble friend Lord Mawhinney for referring to the words, “motherhood and apple pie”, because when I first saw this amendment, that is the way it looked. When one reads proposed subsections (1), (2)—or parts of it— (4), (5) and (6), they seem pretty innocuous. However, in proposed subsection (2), we are talking about high principles, which none of us would disagree with—principles which crop up time and again throughout the Bill. Quality—something that the noble Lord, Lord Darzi, referred to in a speech a few weeks ago —equity, integration, accountability are all points that we will address in the coming weeks, and are fundamental aspects of this Bill. However, the phrase “not the market” is not a principle—it is a mechanism for delivering what one wants.

The noble Lord, Lord Peston, said that any form of market would turn the NHS into a privatised industry. May I remind him that during the time of the previous Administration, we had independent sector treatment centres? What were they if not an example of a market-driven industry? They were introduced—

[Lord Peston]

I was not a Minister in that Government, so I do not have to defend them.

[Lord Ribeiro]

At least the noble Lord recognises that it was something that happened, and that it was a market. It was deliberately introduced by the previous Government. Were it not for the fact that NHS consultants were excluded from working in that area, it achieved the objective it was designed to do, which was to reduce waiting list numbers. However, it was a market, so if we were to accept proposed subsection (2), we would effectively say that we must call an end to all forms of privatised healthcare provision that currently exist in the NHS. I think that noble Lords would agree that this would not be acceptable.

Proposed subsection (3) talks about restructuring and reorganisation. The noble Baroness, Lady Williams, addressed this very effectively when she said that we do not want to encapsulate the NHS in aspic, creating rigidity rather than flexibility. The previous time the House debated the health service, I made reference to the decision that had been made on Chase Farm. It had taken 17 years for it to be made. If we were to accept proposed new subsection (3), effectively every constituent of Chase Farm would have a very good legal reason to challenge why that reorganisation had taken place. While I am fully supportive of the idea in Amendment 52 of having the NHS constitution clearly laid out—we all agree with, understand and support it—I am not in agreement that the five principles as set out in Amendment 1 should be accepted in their present form. If it came to a vote, I would certainly oppose the amendment.

Health and Social Care Bill

Lord Peston Excerpts

Wednesday 12th October 2011 Lords Chamber

[Lord Peston]

Is the Minister certain that there is no way that the amendment to which he refers can be made to work so that the job gets done in time? That bears no resemblance to my knowledge of how this House works. The House can end things at any time it wants to.

[Earl Howe]

My Lords, that is the firm advice that I have received.