Health and Care Bill

Lord Warner Excerpts

Lords Hansard - Part 2 & Committee stage
Wednesday 26th January 2022 Lords Chamber

[Lord Lansley (Con)]

My Lords, I shall intervene relatively briefly. The noble Lord, Lord Hunt, quite rightly said that this is a significant departure from the intentions of the 2012 legislation. The 2021 Act, among other things, created the body that is now NHS England and gave it independence. None of that independence was intended to mean, nor has proven to, that it was not responsive to even the day-to-day wishes of a Secretary of State, as I am sure the noble Lord, Lord Stevens, would verify. What it did put in statute was that, if the Secretary of State wants to set something as an objective of NHS England, they put it in the mandate. If the Secretary of State requires a change to those objectives, they publish a revision to the mandate.

Going beyond it is, I think, the product of circumstances where we had a Secretary of State who was encountering an emergency and thought he could press lots of buttons and things would happen, but pressed some and they did not. I think, even in his experience, that was more outside NHS England than inside it— I may be wrong, but that was certainly my impression. The point is that the Secretary of State did not even realise what powers he had in an emergency; they are all there and he was not required to change the mandate, because it was an emergency. In a public health emergency, none of this, strictly speaking, is within the same bounds.

Ministers have quite rightly said that this is the Bill the NHS asked for. But Clause 39 is not the clause that the NHS asked for; it is the opposite of what it is asking for. There are many practical issues. The noble Lord, Lord Hunt, is right; if it appears, including to the senior people and bright youngsters, that power is going to shift from NHS England back to the Department of Health and Social Care, they will go and work in the department. One of the things I was most pleased about was that some of the brightest and best, including civil servants in the department who I knew well, went to work in NHS England, because they thought, “This is a great future.” That is terrific, because one of the problems was that NHS managers were being imported into the Department of Health, rather than bright policymakers going to the NHS. The NHS is too important an institution for it not to have the best possible policymakers under its own purview.

The noble Lord, Lord Hunt, and the noble Baronesses, Lady Thornton and Lady Walmsley, have done a sterling job in trying to mitigate a general power of direction for the Secretary of State. Frankly, I have not heard a case for it, it is contrary to where we are and where we need to go, and the simplest thing is to simply take Clause 39 out of the Bill.

[Lord Warner (CB)]

My Lords, it is a delight to follow the noble Lords, Lord Lansley and Lord Hunt, on this set of amendments, with which I totally agree. I want to dilate for a few moments on the realpolitik of being a Minister in the great, august organisation called the Department of Health and Social Care. I can say some things that the noble Lord, Lord Lansley, as a former elected Minister, possibly cannot.

When I ceased to be a Parliamentary Secretary and was promoted to work with the big boys and girls as a Minister of State, and had to deal with issues such as reconfiguration, poor performance and so forth, I became used to regularly meeting elected MPs who wanted to tell me about the errors of their ways in decisions that had been taken in the public interest. There was a steady flow of them, which, if I may say, tended to get bigger the nearer you got to an election. If people wanted to go through the archives, I would refer them to the history of Lewisham Hospital and of Chase Farm Hospital, to name but two.

Very often in these situations, it is not about closing a whole hospital but about re-engineering—we will come to some of this in the next group. I give the example of stroke services in London. It is re-engineering a particular set of services, which the local MP is then put up for trying to ensure that change does not happen. That is where you need to help Ministers do the right thing, when it is in the public interest to make changes. The amendments from the noble Lord, Lord Hunt, help Ministers do the right thing.

The point the noble Lord, Lord Lansley, made is absolutely valid. In many of these circumstances, it becomes very difficult if you are an elected Minister—as distinct from an appointed Minister, who does not have to face the electorate—to resist some of the local pressures to avoid change which would be disadvantageous to a local hospital. For those realpolitik reasons, I think the noble Lord, Lord Hunt, is on the right track and we should support the amendments.

[Baroness Walmsley (LD)]

My Lords, I support the noble Lord, Lord Lansley. Clauses 39 and 64 give the widest possible powers of intervention to the Secretary of State and even the power to delegate that power to someone else. The noble Lord, Lord Hunt, and other noble Lords clearly believe that the Government are going too far, hence the large number of amendments in this and the next group.

I believe that the Clause 39 powers could justifiably be used only in the case of some cataclysmic failure of the NHS. There are four questions to ask. Is it possible that the Secretary of State would ever need these powers of intervention at an operational level, given that he already has the mandate? Does the Secretary of State have any other powers which could be used prior to this atomic bomb of a power? Has the NHS survived well enough over the last 10 years without the Secretary of State having such powers? Does Clause 39 upset the balance between the Secretary of State and the autonomy of NHS England? I think the answers are no, yes, yes and yes—your Lordships can work it out.

The Health and Social Care Act 2012 removed the Secretary of State from this sort of meddling. I thought at the time that it might also avoid him or her taking the blame for failure, but that was just me being cynical and there has actually been no failure of political accountability over the last 10 years. The ninth report of the House of Lords Constitution Committee refers to this issue. It notes that, in 2011, it

“raised concerns that that Bill could erode ministerial responsibility due to the proposed duty on the Secretary of State to promote autonomy for persons exercising functions in relation to the health service. What is now section 5 of the Health and Social Care Act 2012 was amended, such that the Secretary of State instead must have regard to the desirability of securing autonomy. This helps ensure a balance between enabling those providing health care services to deliver services in a manner that they consider appropriate, whilst ensuring ministerial responsibility.”

The Constitution Committee believes that, in combination with Clause 64, the powers taken for the Secretary of State by Clause 39 would undermine that autonomy and upset the balance. They also risk

“undermining accountability by making it more difficult to understand which body is responsible for a particular function of the NHS.”

The fact is that the Secretary of State already has the power to change the mandate of NHS England—as the noble Lord, Lord Lansley, pointed out—to adjust its funding or to bring political pressure upon it to behave in certain ways, without the need for the powers in this clause. Indeed, I think it would be very unwise to use these powers, and he or she will certainly get the blame if it all goes pear-shaped. The Bill, as has already been pointed out in some detail by noble Lords, the DPRRC and the Constitution Committee, gives the Government considerable regulatory and guidance powers, about half of which allow no parliamentary scrutiny at all. Does that not give the Secretary of State enough ability to ensure things are done in the way the Government wish? The Secretary of State already wants to be Henry VIII; does he also want to be King Herod?

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[Lord Lansley (Con)]

Let me give my noble friend one simple example of how this could shift decision-making from NHS bodies to the Secretary of State. We discussed previously, in an earlier group, the availability of in vitro fertilisation services. There will be pressure on the Secretary of State to issue a direction that the NICE recommended availability of in vitro fertilisation services should be provided. By what means is the Secretary of State going to say, “No, I can’t issue such a direction”? It is entirely within his power to do so. The pressures will all be on the Secretary of State to issue directions to do things that the NHS locally may choose or choose not to do. The power will shift. Is he aware of what he is wishing for?

[Lord Warner (CB)]

Before the Minister answers that question, could I add another? We have had 10 years’ experience of NHS England under three chief executives and a number of different chairmen. Can the Minister give any examples of where the powers the noble Lord, Lord Lansley, gave the Secretary of State have been inadequate for them to give direction to NHS England?

[Lord Kamall (Con)]

The Secretary of State cannot issue a direction to CCGs or ICBs on any of this using this power. We have been clear that direction cannot be given in relation to drugs, medicines or on treatments that NICE has recommended or issued guidance on. I gave the example of where we want this guidance—with the draft guidelines published for ICBs. The Secretary of State would be able to intervene and ask to see that guidance—