Health and Social Care Bill

Baroness Scotland of Asthal Excerpts

Wednesday 2nd November 2011 Lords Chamber

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, this has been an excellent debate. It has proved one thing in my mind: an issue of this importance for the Bill—the overarching duty of the Secretary of State for the NHS—has benefited enormously from having a Committee of the Whole House to consider it. Without unnecessarily detaining the Committee, I hope it will be helpful if I say something on the record about each amendment.

I begin with Amendment 3, tabled by my noble friend Lady Williams, the noble Lord, Lord Patel, and the noble Baroness, Lady Thornton, and Amendment 5, tabled by the noble Baroness, Lady Thornton, and the noble Lord, Lord Hunt. Both amendments would have the effect of restoring the Secretary of State's current duty to provide services in Section 1 of the National Health Service Act. There has been extensive discussion of this both today and at Second Reading, so I shall not recap all the arguments. The core argument is that the duty to provide no longer reflects the practical reality of how NHS services are delivered or our proposals for the Secretary of State's functions in the new system.

Before I explain further, I should make clear that we are now discussing the Secretary of State's relationship with NHS services rather than his duties in relation to public health, where his direct responsibilities for provision remain firmly in place. In that context, I refer noble Lords to Clause 8 of the Bill. While I understand that many people are attached to wording that dates back to the founding Act of 1946, it is now more than 20 years since the Secretary of State had any direct responsibility for the provision of services. Only a tiny minority of NHS services—those still provided by PCTs —are carried out under the Secretary of State's delegated function of providing services. In future, all NHS services will be provided by NHS trusts or foundation trusts, both of which have their own self-standing powers to provide services and do not rely on the Secretary of State's duty to provide under Section 1(2), or by independent providers. The Secretary of State will have no powers to provide NHS services. That is the reality.

I am grateful to the noble Lord, Lord Warner, and to my noble friends Lord Newton and Lady Cumberlege for their persuasive arguments articulating the need to reflect this reality in legislation. As my noble and learned friend Lord Mackay helpfully explained, the Secretary of State has never had an unqualified duty to provide services; he has had a duty to provide or secure the provision of services. In recent years he has relied on the latter part of that duty to fulfil his functions, while the former part has ceased to have any practical relevance. I hope that that answers the question posed by the noble Baroness, Lady Jay.

There is another reason why it would be wrong to reinstate the duty on the Secretary of State to provide. Under the legal framework of the Bill, the Secretary of State no longer possesses powers to direct others to provide services. Therefore, unless we were to re-impose a system of regulations or directions by which the Secretary of State could delegate his duty to provide and control its exercise, which would risk replicating the micromanagement of the status quo, it is hard to see how this legal obligation to provide services could be fulfilled. For obvious reasons, it would be undesirable to create a situation in which the Secretary of State provided services himself. Also, in practice he would lack the capacity to do so, for example in terms of staff and facilities.

Instead, the duty we propose in the Bill is a more accurate reflection of what Ministers do. In line with policy that has evolved over two decades, the Secretary of State will not provide services or directly manage providers; nor will he have the powers to do these things. Instead, providers will be regulated independently. Rather than intervening in day-to-day decisions by local providers, the Secretary of State will have powers to hold to account the regulators, Monitor and CQC, for the way that they are performing their functions, and powers to hold the NHS Commissioning Board to account for the way that services are commissioned. In other words, the Secretary of State—

[Baroness Scotland of Asthal]

My Lords, I hesitate to intervene on the noble Earl, who knows I hold him in the highest possible esteem, but I think he is now treading on some contentious legal issues. Bearing in mind the wonderful consensus that we have now reached, I would just ask him to consider whether, at this stage, some of those issues are really helpful because the noble Earl will know that the Secretary of State does, by his servants, agents or otherwise, provide services and, indeed, there have been times when there has been a pandemic when the Secretary of State has had to make such provision. These are contentious issues which I am sure could intrigue us for many hours, but since we have happily come to the conclusion that we have had a surfeit of such happiness and wish to go forward, I gently say to the noble Earl that this might be a moment when we could swiftly do that.

[Lord Lester of Herne Hill]

My Lords, I would not have intervened otherwise, but I respectfully disagree with what the noble and learned Baroness, Lady Scotland, has just said. I am finding it very helpful to listen carefully for this reason: it seems to me that the Secretary of State must have a duty to secure the provision, as has been said by the Minister, for the purposes of giving effect to our international treaties, including those on human rights. Therefore, what he is saying at the moment is very important to me in trying to see how one can get wording that will include that as well.