Health and Care Bill

Baroness Brinton Excerpts

Lords Hansard - Part 2 & Committee stage
Tuesday 18th January 2022 Lords Chamber

[The Deputy Chairman of Committees (Baroness Henig) (Lab)]

My Lords, the noble Baroness, Lady Brinton, is taking part remotely, and I invite her to speak.

[Baroness Brinton (LD) [V]]

My Lords, I am speaking in support of the amendments in the name of the noble Baroness, Lady Bennett, starting with Amendment 46. After many helpful discussions both today and earlier on in Committee looking at membership, structures and representations of ICBs, these amendments take us back to the first principles and ask your Lordships’ House to look at what should be in scope for the provision of NHS services. This is a really valid question.

The noble Baroness, Lady Bennett, referred to maternity services, but if I were to pick one of the services listed in Amendment 169, it would be dental services. There are millions of people in the country who cannot access an NHS dentist. The result is a worsening of dental health, which is especially worrying for children and young people. I am sorry to say that, over the years, Ministers have ignored the wider needs of the public regarding dental services. I think the point about specifying the provision of services such as this puts a very particular duty on the Secretary of State to force Ministers to make sure that they are also holding other parts of the health service to account.

The amendments turn our focus on to whether we still have an NHS that is a public health system or one that perhaps is paid for mainly by the public but run by a disparate number of bodies, including unaccountable private companies increasingly not based in the UK. They are particularly important in light of the report today in the press that the Secretary of State is planning to create the equivalent of school academies for failing hospitals and says that there will be a White Paper in due course. Just as an aside, do we need yet more reforms? Surely it would have been better to have a full range of Green Papers with an overarching vision of what the NHS in the 21st century should look like and how the structures should work. We are now waiting for two White Papers, while the passage of this Bill is irrevocably changing the structures of our NHS system.

Today’s announcement rings a number of alarm bells because there is an analogy with the education sector that is quite helpful. I remember that, in the 1990s, academies were going to be free from local authority control and that that, on its own, would inevitably make them improve—but that has not been the case. Various reports over the last 20 years have shown that a number of failing schools taken into multi-academy trusts and free schools have remained low performing. Structures on their own do not necessarily resolve this. Indeed, some multi-academy trusts have failed in their entirety, and one of their issues is the lack of public accountability—because Ministers have direct responsibility in the public realm for academies, and I worry that the Secretary of State may be proposing the same. If I was a senior leader in NHS England, I would be very concerned about that.

I am grateful for the earlier comments of the noble Earl, Lord Howe, on the need for Ministers to have the ability to appoint and, presumably, remove senior personnel on ICBs. But would the Secretary of State have responsibility for these academy equivalents and give them the right to access separate funding for capital expenditure and special projects? I raise this because part of the problem that we have at the moment is a diversity of funding mechanisms, structures and strands, which often take the eye of a leader—whether a Minister or one in the NHS—away from the provision of services.

The foundation of a public system was essentially removed by the 2012 Act, and, as the noble Baroness, Lady Bennett, said, the Constitution Committee suggested that there needed to be an interim remedy. It is important that we have reassurance that this Bill will not weaken it any further at all. I hope that the Minister can reassure your Lordships’ House that the Government want to protect the provision of NHS services, as part of a truly public health service.

[Baroness Wheeler (Lab)]

My Lords, I thank the noble Baroness, Lady Bennett, for moving her amendment and other noble Lords for their contributions, particularly on the specific points about particular services, such as dentistry. All three amendments look back to the Health and Social Care Act 2012 and the National Health Service Act 2006 on the powers and duties of the Secretary of State in relation to the NHS and the services that it provides, restoring certain provisions in the 2006 Act.

Under the Bill, the ICBs and NHS England will have the duties to secure the provision of the services that make up the comprehensive NHS. There are probably noble Lords here today who were Members of your Lordships’ House in 2006. I came in in 2010, just as the equally marathon Health and Social Care Act from the coalition Government got under way, when the whole issue of the Secretary of State’s powers and duties came to the fore. As explained at the time, the aim was to separate the political from the operational responsibility and to better align the language to the reality of the purpose of the NHS, in “securing the provision of services”.

The arguments in 2010 and 2011 were fierce and passionate, centred around the subtle changes in the way that the duties were defined, as compared to the words in Sections 1 and 3 of the 2006 Act. They caused suspicion, confusion and fears that the NHS would be changed forever. These arguments remain a bit of a blur in my memory, but I recall the overwhelming view among leading experts on NHS law that the changes were technical and did not involve any substantial change in practice. We know that, in respect of this role, no change has happened.

I also recall the 2012 consideration of the issue by our Constitution Committee and the compromise recommendation subsequently adopted in the 2012 Bill of what became Section 1(3) of the 2006 Act, as amended:

“The Secretary of State retains ministerial responsibility to Parliament for the provision of the health service in England.”


No matter what is in any Act, this is and will always be the political reality.

Currently, the law places the duty on the Secretary of State to

“continue the promotion in England of a comprehensive health service designed to secure improvement … in the physical and mental health of the people of England, and … in the prevention, diagnosis and treatment of physical and mental illness”—

very much in the spirit of the NHS’s founding 1946 Act.

Amendments 46 and 168 seek to continue the 2006/2012 debate. It was claimed about the 2012 Act, and now about this Bill, that the change in wording implies that people will be denied access to treatment from the NHS because, for example, a particular ICB decides to exclude a service and because there is no duty on the Secretary of State to prevent this happening. However, there is no evidence that anyone has ever been denied access to an NHS service or that any service has been refused in general simply because of the change in the wording of the responsibilities of the Secretary of State. Amendment 169 returns to the same point, seeking to place a duty on the Secretary of State to “provide” a list of services, with some general headings such as ambulance services. But the reality is that this is not how the NHS functions or indeed ever has.

I endorse many of the comments made by the noble Baroness, Lady Brinton, about today’s announcement of yet another restructuring on the academy front, but, again, that is a debate for another day.

We could go back on the Secretary of State issue to the 2012 arguments and spend a lot of time on it. While we fully understand the concerns and fears that the current wording could engender among those who suspect a deeper reason for the changes in language, continuing to argue over this issue would not be very productive or get us anywhere. We need to get on with scrutinising the sweeping delegated and Henry VIII powers later in the Bill that our current Constitution Committee and Delegated Powers Committees have expressed such deep concern about.