Health and Social Care Bill

Baroness Thornton Excerpts

Wednesday 8th February 2012 Lords Chamber

[Baroness Thornton]

My Lords, I think the noble Earl has answered the question as far as it goes, but he raises several points. First, this Bill did not need to be in front of us at all because many of the changes that are taking place do not need primary legislation. Secondly, his colleagues in another place have constantly said that the Bill cannot be dropped because it has gone too far. We are not in the same place now as we were at the end of Committee; millions of people in the health service have now expressed their view that this Bill should not happen at all. Given that, do the Government have a plan B in case they need to withdraw the Bill? Do they have people working on that in case the Bill has to be dropped?

[Lord Warner]

My Lords, before the Minister responds to that question, will he consider later—if he cannot answer now—the budgets for clinical commissioning groups? I understand from a meeting of the national Commissioning Board, which was held in open session on 2 February, that Sir David Nicholson is reported as having said that clinical commissioning governance is, in effect, moving on apace, and that more than 95 per cent of clinical commissioning groups have now agreed their constituent practices and geographies and are already seeing benefits in their services from the work that they have been doing. At the high level, around 50 per cent of the commissioning spend is already delegated to clinical commissioning groups from PCTs under various delegation schemes. That seems fair enough, but there is a final point on which I would welcome the noble Earl’s clarification. It says that the ambition is for all this to be so delegated to clinical commissioning groups by 1 April 2012. Will that delegation still be part of the present powers, or is it in anticipation of the legislation being passed in time?

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[Lord Eden of Winton]

My Lords, we have listened to many powerful and persuasive speeches. I am tempted to go all the way with those who have advocated the inclusion of this amendment in the Bill, but I take up the words of the noble Baroness, Lady Finlay, who referred to the need for a cultural change. I think all noble Lords would agree that there is the need for a cultural change. I only question whether it is right to try to achieve that change through legislation. Surely what we are seeking to do is to change attitudes and get people to understand that there is no difference between physical and mental illness. For that reason, I think we need to hesitate before including words in legislation. What we need to do is to make people throughout the health service and everyone associated with the administration aware of the fact that there is no difference between physical and mental illness, and that those with mental illness need to be treated on an absolutely level footing with those with physical illness.

[Baroness Thornton]

My Lords, we on these Benches liked this amendment the first time round and we have not changed our minds. It may be symbolic in its effect—in fact, we think it all the better for that. Legislation should be the expression of policy and this amendment flows from important policy commitments by successive Governments about the parity of policy-making at all levels of the system to consider mental health alongside physical health. We give our very full support to the mover of this amendment and we urge the Minister to accept it.

I have two other remarks to make. First, I always listen extremely carefully to the noble and learned Lord, Lord Mackay of Clashfern. Frankly, if he says it is good enough for this Bill, that is good enough for me. Secondly, I agree with the noble Lord, Lord Newton, that it is a no-brainer. To the noble Lords, Lord Ribeiro and Lord Alderdice, and the noble Baroness, Lady Williams, I say that we are on Report. This is not the time for probing amendments. This is the time for taking decisions about what we want in the Bill. The Minister had the opportunity to take this away and consider it after Committee, when the House was as united in its view about this matter as it is today. Today I urge the Minister to accept this amendment but, if he will not, the House needs to express its view about this matter if at all possible.

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Moved by

[Baroness Thornton]

3: Clause 1, page 2, leave out lines 7 to 9 and insert—
“(2) The Secretary of State must for that purpose provide or secure the provision of services according to this Act.”

[Baroness Thornton]

My Lords, we originally put down Amendments 3 and 4 in Committee back in the autumn. It has to be said from the outset that this is actually still a very bad Bill. Since Committee, the context in which we are discussing this Bill has without doubt changed. It seems that it has no support from anywhere except in the Department of Health—and possibly not even from everybody there. It still has no mandate.

Going back on previous commitments to,

“no more top-down reorganisation of the NHS”,

the Prime Minister and his Health Ministers, including the noble Earl, have adopted what we on these Benches would like to term the “Attlee defence”, in deference to the noble Earl, Lord Attlee—and I mean the Government’s Earl Attlee, not ours, as it were. Last March, during a debate on the Building Regulations (Review) Bill, in trying to explain the Government’s position, the noble Earl came up with:

“I gently remind the Committee that I answer for Her Majesty's Government, not for the previous Opposition”.—[Official Report, 4/3/11; col. 1352.]

That is a remarkable statement. Perhaps the Minister could gently remind the Prime Minister and the Health Secretary of their coalition agreement.

It is significant that the Prime Minister has had to come to the Bill’s rescue today, not least because a Downing Street source yesterday was reported to threaten the very life of the Secretary of State—I think that the words used were “taken out and shot”—for his failure to communicate the Bill and the Bill’s policy. We in the Opposition have never advocated such a thing. Perhaps the Minister would like to comment on this particular version of the Secretary of State’s ultimate responsibility in his job.

The Prime Minister’s words were also revealing in that the Government intend to push this Bill through. I do not believe that that is a respectful way of referring to the remaining stages in your Lordships’ House. It begs a question that I should like to ask the Minister early in Report stage, which arises from what happened recently as regards the Welfare Reform Bill. Will he give the House notice now as to whether the Government intend to use the financial privilege mechanism to strike down any amendments that this House might agree during the remaining stages of this Bill?

I have searched in vain for a precedent of legislation that is so unwelcomed by those who have to deliver it, so incomprehensible to those on whom its consequences will be wreaked and so difficult to explain in simple terms. But even the Minister, who is acknowledged by the whole House to be an outstanding performer and someone who can normally enlighten us about most matters in clear, plain English, has had to resort on many occasions to seeking to justify points of this Bill in the managerial jargon of his boss, Mr Lansley, which is as dense as the Bill itself. If any noble Lords doubt that, I suggest that they need only to peruse the record of the Committee stage.

We do not work in a sealed bubble in this Chamber and I appreciate that the Government might prefer it if that were the case. But the public’s view of this Bill has shifted and hardened since we completed the Committee stage before Christmas. The views of those who have engaged with this Bill for more than a year have changed and we need to hear their voices throughout Report stage.

As we all know, the discussions around the role of the Secretary of State have been of great significance. What has emerged is that the reasons for changing the role have never been made clear. As has been pointed out, there is a continuity around the role of the Secretary of State which goes way back to the founding of the NHS. I will not rehearse all the arguments that we heard in Committee and at Second Reading, and which some of us have been rehearsing during the months between those stages and up to last week. The reality is and always has been that the legal duty on the Secretary of State is to provide services. Even securing the provision of services has been delegated to organisations which deliver that duty on behalf of the public. Public accountability is and always has been vital to maintaining public confidence in the NHS. Ultimate political accountability exists in the person of the Secretary of State.

In no way can the Secretary of State argue that any failure to provide necessary NHS services is not his or her responsibility. The argument that if there is an issue the Secretary of State must work through failure regimes, regulations and directions to others is not good enough. As the Health Select Committee and many noble Lords, including the noble Lord, Lord Mawhinney, said in Committee, it would not be believed anyway.

We will be moving to the alternative wording in the next debate. We on these Benches have supported the process that has led to that wording. However, I should like the Minister to explain—I would be very happy to hear that explanation when he responds to the next debate—the difference between these words and those that are before the House. I am giving the Minister notice that this remains a bit of a mystery.

As with so much else in this unloved Bill, we are left with the question: why? Why on earth did the original Bill propose a radical change to the role of the Secretary of State? The Minister in the Commons, Simon Burns, was ready to die in a ditch for the wording. It was a liberation ideology for him. Why, throughout the scrutiny in the Commons, was the line rigidly held by coalition Ministers and MPs, and why is the Secretary of State—I really do think the House needs to know the answer to this question, but again I am quite happy to wait—now briefing royal colleges saying, “Actually, the changes that noble Lords have agreed in their Chamber will make no difference to the Bill”?

Our amendment and the others that deal with the role of the Secretary of State are important and we have undoubtedly prised improvement out of, if not a reluctant noble Earl in this Chamber, certainly out of a reluctant Government. Many of these issues are proxy arguments about what kind of NHS we want. During the rest of the Report stage we will focus our energies on the many other things that need to be changed, particularly in Part 3. These are part of the argument about why we do not want a full market, why we do not want regulation along the lines of that for the utilities or for the banks, and why we need to protect and preserve the tradition, well established and well understood, of the role of the Secretary of State.

I will be withdrawing the amendment, as I promised the Minister I would, but I would like some answers to the questions that I have posed in these remarks. I beg to move.

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[Earl Howe]

I am grateful to the noble Baroness, who is of course quite right.

I have been handed a note which says that when I said that there would be no legally enforceable duties on quality improvement, I should have clarified that that would have a follow-on. I should have said, “across the NHS system”.

The noble Baroness, Lady Thornton, referred to potential privilege responses from the Commons. My noble friend the Leader of the House made a Written Statement last Thursday about the financial privilege of the House of Commons in which he drew attention to a paper by the Clerk of the Parliaments, available in the Library. I think that questions about procedure may be best directed to my noble friend, but I shall do my best to assist. The Clerk of the Parliaments makes it clear in his paper that,

“until the Commons asserts its privilege, the Lords is fully entitled to debate and agree to amendments with privilege implications”.

That is what we should do. I would much regret it if the House thought that I was trying to restrict its role of revision. The Marshalled List sets out more than 100 amendments in my name, tabled in response to debate in Committee, and if the House agrees to those amendments I can assure noble Lords that the Government will encourage the other place to accept them.

The essence of the noble Baroness’s question is about privilege reasons for the Commons rejecting amendments proposed by this House, and on that I can say two things. First, any amendment with implications for public expenditure might involve privilege, but that is a matter for the Commons alone. Decisions on financial privilege are for the Speaker of the Commons on advice from the Clerks of that House. If the Commons reject a Lords amendment in which the Speaker has determined that privilege is engaged, the only reason that it can send this House is a privilege reason. There is no discretion.

Secondly, this debate is by its nature premature. I hope that our debate and dialogue will lead to this Bill being sent to the Commons in a form that that House will accept. Until we see how Report unfolds, it is too early to speculate on the reaction from the Commons. One cannot have a reply to a question until the question has been asked.

[Baroness Thornton]

My question was actually about the Government’s intentions. That was a very enlightening and helpful remark about privilege. The Speaker of the Commons will not presumably, by and large, take a view on privilege unless the Government ask him to. So my question was about the Government’s intention on this matter.

[Earl Howe]

I have taken advice on this, and I believe that what I am about to say will not mislead the House as I have been given this advice on authority. It is not for the Government to do anything; it is not within our power to do anything. The noble Lord, Lord Martin, who spoke last week on this matter, is par excellence an authority on this. A view is taken by the Clerks in another place on the amendments passed in this House as to whether privilege is engaged. The Speaker is then advised. The Government have no role in that process at all; it is a Commons privilege, not the Government’s privilege.

I hope that what I have said will persuade your Lordships that the course down which the Opposition would wish to take us is the wrong one. The Bill, once amended—if that is your Lordships’ wish—through the amendments that have been jointly agreed on a cross-party basis, will therefore be fit for purpose in clarifying beyond peradventure the Secretary of State’s accountability for the health service and the exercise of his powers. With that, I hope that the noble Baroness, Lady Thornton, will feel able to withdraw her amendment.

[Baroness Thornton]

I thank the Minister for that response. I made it clear in my opening remarks that I would not seek to push the amendments to a Division, although the remarks of the noble Baroness, Lady Williams, and the Minister made me wonder whether I ought to do so, because certain things that were said were not justified.

First, the noble Earl took us through a list of things that without the Bill would not be happening. On almost every single one, I thought that without the Bill you could do all those things. You do not actually need this Bill to do most of the things that the noble Earl listed as being desirable objectives. I am sure that we would agree about most of them being desirable objectives.

The noble Earl mentioned the listening exercise as being proof that this is not the unloved Bill that I would suggest it is. Only yesterday, a former special adviser to Downing Street said that the listening exercise was a tactic as part of managing the Bill. Frankly, I was horrified by that. If I had been Professor Steve Field or one of the 40-odd people who, with every good intention of doing a public service unpaid, gave their time to take part in that listening exercise, I would think that it was really shocking. So I think that the noble Earl should be careful about praying the listening exercise in aid in explaining how loved or unloved this Bill is.

It is time that we moved on. I intend to reserve my praise for the next debate and leave my criticisms in this debate. I intend to withdraw my amendment, even if the noble Earl will not withdraw the Bill.

Amendment 3 withdrawn.

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[Baroness Young of Old Scone]

My Lords, I am afraid that I will be even more discordant. I do not want to denigrate the congratulations that have been offered to the noble Baroness, Lady Jay, and her colleagues and the process that has been gone through to reach agreement on this amendment. However, I share the view of the noble Baroness, Lady Pitkeathley, that we must not forget not only how deeply unpopular the Bill is but that it is flawed.

I had not intended to speak on this amendment but I cannot let the moment pass as I think that the noble Baroness, Lady Jay, referred to a spirit of improvement that she was seeking in moving this amendment. However, we have to remember that the improvement is a bit like trying to paint the face of a harlot; at the end of the day, it is still the face of a harlot, no matter how improved. We are seeing real impacts on healthcare in this country as a result of the Bill, as we speak. I come from a background of having run health services for 20 years. I have also been the regulator for health and social care and am now part of a patients’ organisation. Patients are telling me that we are seeing the fragmentation of responsibility for the commissioning of healthcare and that services are suffering as a result of the financial squeeze; for example, diabetic specialist nurses are disappearing and patient education is being cut. The things that are important for the quality of care are being removed.

I am experiencing a huge loss of momentum in getting any change implemented in the care for people with diabetes. Whenever I speak to the Secretary of State, he tells me that it is no longer his responsibility and that I should talk to the NHS Commissioning Board. However, when I speak to the NHS Commissioning Board, staff say, “We are still working out how we do this”. When you talk to clinical commissioning groups, they are still not clear about the framework in which they are operating. Therefore, we are losing one, two or three years of headway on issues where there needs to be real improvement for patients.

Because of the preoccupation with reform, we are seeing a lack of real focus on the task in hand, which is how we make the health service more efficient. The Minister and the Secretary of State have repeatedly told me that these reforms will deliver that necessary improvement in care and efficiency. However, my experience over 40 years leads me to believe that that is not the case. In saying that, I am not making a political point; I speak from my knowledge of what is happening in healthcare. We will continue to try to improve the Bill because we are good and honest toilers in the House of Lords, but we are trying to improve something that is deeply flawed.

[Baroness Thornton]

My Lords, we must be thankful to my noble friend Lady Jay and the Constitution Committee for their initial work and their second report, which has enabled us to reach the point that we have. I am grateful to my noble friend Lady Pitkeathley and the noble Baroness, Lady Young, for saving us from the gloopy treacle of self-satisfaction into which we were sinking, to which my noble friend Lady Jay referred.

I, too, thank the noble Lord, Lord Laming, the Convenor of the Cross Benches, for chairing the seminars that have been referred to. We all know that chairing seminars attended by opinionated Members of this House and lawyers is not an easy task. He did an excellent job and led us gently towards the consensus that has resulted in the amendments being tabled that we are discussing. I pay tribute to the noble Baroness, Lady Williams, the noble Lords, Lord Hennessy and Lord Owen, whose wisdom brought the great importance of this issue to the attention of the House.

We support this amendment as it is clearly an improvement on what was in the Bill originally. We are still perplexed as to why we could not simply have kept the 2006 wording, but we are where we are. However, I wish to repeat the question that I have already put to the Minister. The Secretary of State has let it be known that he does not think that this measure makes a difference. That shows no respect for the work that we have undertaken and the place in which we find ourselves. Therefore, I should like clarification on that point. We need to know why that is the case. This measure constitutes a significant change because, as I think the noble Baroness, Lady Williams, said, it will have repercussions on other parts of the Bill. I welcome that and hope that it is the case. We need to look at the changes proposed in this and the following amendments as they should make easier our job of testing other parts of the Bill against them.

I say to the noble Lord, Lord Mawhinney, that this is still a very political Bill. The noble Lord’s party and the Liberal Democrats pushed the original drafting on the Secretary of State’s powers through the Commons. I have tried to keep my remarks about the highly politicised nature of the Bill separate from this debate because I thought it was important that we should also recognise the work that has gone on and the consensus that we have reached in this House. That is due to a combination of clarity, wisdom and our consideration of the Constitution Committee’s report. I compliment noble Lords on my own Benches because we were determined not to accept the well meaning and imaginative original proposal of the noble and learned Lord, Lord Mackay of Clashfern. We had very trenchant support from noble Lords such as the noble Lord, Lord Owen. The Minister, in his wisdom, took these clauses off the Floor of the House and we are now where we are. That is a great credit to everybody concerned, including my own party. Therefore, we are very happy to welcome this amendment and hope that it bodes well for our future discussions on Report.