Health and Social Care Bill

Debate between Lord Warner and Lord Williamson of Horton

Tuesday 25th October 2011 Lords Chamber

[Lord Williamson of Horton]

I thought it would be nice to hear another voice, having been here since 3 pm or earlier. I should like to come back to these points and follow on directly from the intervention by the noble Baroness, Lady Jay. The word “provide” has not been used by the Secretary of State in the past; none the less it is there in the long history of this way of handling the operation of the National Health Service. We have continually heard here how in the past it has not been used, and I understand that. However, we are not legislating for the past here; we are legislating for the future. I feel that the retention of the word still has some value if we are looking ahead to the future. In this Bill we are not making special arrangements so that the Secretary of State can provide, but what will be the consequences of unexpected events which could hit us in the future when it might be sensible for the Secretary of State to provide? I do not think that that should be ruled out and, for that reason, I am attracted to the amendment of the noble Baroness, Lady Williams. It also has the advantage that in law it is highly intelligible to an ordinary person, which I always appreciate.

I now come to the amendment of the noble and learned Lord, Lord Mackay. I fully understand why he has put it forward and why he thinks that it is better to avoid putting something into the law which has not been operational, replacing it with something which is a more accurate description of what the future situation might be. However, I have one question, which I shall put to the Minister and indirectly to the noble and learned Lord, Lord Mackay.

In paragraph (b) in his amendment there is a cross-reference to Amendment 8, which lists the various intervention functions of the Secretary of State. Basically, all these interventions will be necessary because we will have been struck by some terrible problem—a failure by the Care Quality Commission or NICE. There are all sorts of terrible failures in which the Secretary of State has to intervene. However, I am still anxious about whether, under this formulation, the Secretary of State can intervene proactively—that is, without having to wait until disaster has struck in the various forms listed in Amendment 8. I make that point because I think it is of interest and importance to the people who have raised all the questions in relation to what we are now discussing and what was discussed at Second Reading and in relation to the previous amendment, which was not carried but was in fact discussed very widely in the press. Therefore, I am interested to know whether there is a possibility of proactive intervention by the Secretary of State.

[Lord Warner]

My Lords, I am a bit confused as to whether we are making speeches or asking questions of the noble and learned Lord, Lord Mackay, who seems to have volunteered to conduct seminars for us on many of these issues. In making some points I shall, in a way, be trying to be helpful to the noble and learned Lord. In a sense, the criticism he is receiving is unfair because his amendments bring the legislation up to date in terms of provision, which has been a fiction for many years. However, his proposal has to be read in conjunction with all the other provisions in the Bill, which continue to puzzle me. The Government have sworn that they want to be extremely hands-off, and they have their beautifully drafted Clause 4, which I think has incurred the wrath of the noble Baroness, Lady Williams, and others. Nevertheless, the Bill as a whole gives the Secretary of State quite a lot of powers to intervene, and I shall go through just a few of them.

Clause 12 confers a power to control services commissioned by the Commissioning Board or clinical commissioning groups; Clause 13, the ability to give direction on secure psychiatric services; Clause 14, the power to make arrangements for the supply of blood and human tissue; and Clause 16, regulations to require clinical commissioning groups to exercise EU health functions. Under Clause 17—even better—the Secretary of State can make regulations that impose standing rules on the Commissioning Board and clinical commissioning groups to arrange for specified treatments and a raft of other things. Clause 20 is the mandation clause, where the Secretary of State can mandate the board before the start of each financial year to specify objectives and the requirements for achieving those objections.

That set of measures looks very un-hands-offish to simple souls such as me. I think that we are getting ourselves into a bit of a state about this, because the Secretary of State seems to have very extensive powers. I admit that some of the public discourse may have been a bit confused by the explanation that the Government’s candidate for the chairmanship of the NHS Commissioning Board gave in his interview. He seemed to have a very hands-off picture of what the Secretary of State should do, and I suspect that he may not have read the Bill quite as carefully as your Lordships will have done. We have to look at the amendment of the noble and learned Lord, Lord Mackay, in the context of making the legislation honest but with the Secretary of State retaining huge powers in the Bill to intervene and direct operations.