Health and Social Care Bill

Baroness Williams of Crosby Excerpts

Tuesday 25th October 2011 Lords Chamber

[Baroness Williams of Crosby]

My Lords, may I briefly address the proposal put forward by the noble Baroness, Lady Thornton? She has made a considerable contribution to the discussion in this House about the health services; not least by organising an impressive series of seminars that were attended by many Members of this House, from all parties and also from the Cross Benches. We are extremely grateful for this.

I am moved very little by the preamble, in the sense that the central issue behind it, which I fully share—that is to say, the clear responsibility of the Secretary of State for a comprehensive health service free at time of need—is primarily, in fact, already embodied in the debate we are about to have on the first group of amendments after the amendments on education and training. The way that this has been addressed by the noble Baroness, Lady Thornton, herself but also by other members of this House, not least the noble and learned Lord, Lord Mackay of Clashfern, provides the basis for a very satisfactory, detailed and careful consideration of what the role of the Secretary of the State is.

We know that there are still fears about ambiguity. On this I agree with what the noble Baroness, Lady Thornton, has indicated. These fears have been very strongly outlined: first, by the Future Forum which said in its report that it had concerns about the accountability of the Secretary of State and, secondly, in the brilliant and concise report of the Constitution Committee, an all-party committee of this House. The committee pointed to its concerns about whether the responsibility and accountability of the Secretary of State emerged sufficiently clearly, and it gave a very impressive argument to the effect that some doubts remain about the position.

Since that time, of course, there have been concerns—rightly so—about some of the knock-on effects of removing accountability of a clear kind from the Secretary of State. All through this Bill, there are situations where the Secretary of State might be or might not be involved. I shall give two examples. The first is about the possibility of conflict between Monitor and the NHS Commissioning Board and how that is to be resolved, where one might suppose that the Secretary of State would be the ultimate decider. The second is on the question of what happens if there is a major emergency in the country of a health nature and whether the public would not, in fact, expect the Secretary of State to be the ultimate source of accountability.

My feeling is that it is better to address these issues very clearly as each one comes up, and to set out in detail, therefore, what the precise responsibilities of the Secretary of State are. Certainly, if one wants simply to assert—which many of us obviously fully understand—a concern and a liking for the NHS, the Secretary of State’s responsibility was reiterated and reaffirmed some time ago after intervention by my right honourable friend in another place, Mr Nicholas Clegg, and others.

This is not an issue for which we should hold up the whole of the Committee proceedings but, in assessing once again the commitment of many of this House to the NHS, it is certainly not objectionable. For the reasons I have given, however, it is perhaps not wise to detain ourselves on this issue at the moment.

I would add two other problems. The wording of the preamble before Clause 1 is mostly fine, but frankly I am a bit worried about subsection (3). One thing we must not do is, as it were, encompass the NHS in a form of unchangeability when all of us know that major changes have to be made within its structure. Therefore, subsection (3) could be a rigidification of the situation. Having said that, however, I believe that we should now move on from this issue to look at the most clear, legally expressed considerations of what should be the clear and accountable responsibilities of the Secretary of State.

[Lord Hennessy of Nympsfield]

My Lords, having suggested during the Second Reading debate that your Lordships might consider the value of a preamble to the Bill which captures the ethos and purpose of the National Health Service, I was grateful to the noble Earl, Lord Howe, in his letter of 20 October to noble Lords, for describing it as “an interesting idea”. The Minister went on to say that,

“preambles have fallen out of use in modern-day legislation, partly because there is a risk that they could lead to unintended consequences, and also because it is considered bad legislative practice to include words in a Bill that have no clear legislative purpose or effect”.

I note and accept that preambles have fallen into disuse, but I continue to see the value of capturing the NHS ethos and purposes firmly right at the top of the legislation, which is why I welcome the proposed amendment in the name of the noble Baroness, Lady Thornton, as a surrogate for a preamble.

I am especially pleased by the NHS constitution occupying a prime position in the amendment’s attempt to capture the principles of the health service in England. The first two principles expressed in the NHS constitution must continue to suffuse the whole enterprise and its legislative underpinnings. The first principle declares:

“The NHS provides a comprehensive service, available to all irrespective of gender, race, disability, age, sexual orientation, religion or belief. It has a duty to each and every individual that it serves and must respect their human rights. At the same time, it has a wider social duty to promote equality through the services it provides and to pay particular attention to groups or sections of society where improvements in health and life expectancy are not keeping pace with the rest of the population”.

Principle 2 explains quite briefly that:

“Access to NHS services is based on clinical need, not an individual’s ability to pay. NHS services are free of charge, except in limited circumstances sanctioned by Parliament”.

Faith in those principles runs deep in our country, powerfully and, very largely I think, consensually. They deserve to be emblazoned at the top of this Bill through a clear reference to the NHS constitution. In fact, apart from the words “not the market”, the amendment before us could, I suggest, represent a common bonding for our deliberations, however fiercely contested will be many of the clauses to come, just as the sustenance of a comprehensive National Health Service free at the point of delivery is one of, or perhaps the most, tenacious common bondings of our people and our country.

--- Later in debate ---

Moved by

[Baroness Williams of Crosby]

3: Clause 1, page 2, leave out lines 2 to 4 and insert—
“(2) The Secretary of State must for that purpose provide or secure the provision of services according to this Act.”

[Baroness Williams of Crosby]

My Lords, this amendment is tabled in my name and those of the noble Baronesses, Lady Jay and Lady Thornton, and the noble Lord, Lord Patel. It is an absolutely central and crucial amendment. I say right away that I am consumed with envy by the success of the noble Lords, Lord Walton of Detchant and Lord Patel, in getting the Government to table an amendment restoring the duties of the Secretary of State in the area about which they were concerned. I only wish that the same thing might happen as regards my amendment.

It is interesting that even in the course of a long debate about education and training we kept coming back to a consistent ambiguity about exactly what the powers and duties of the Secretary of State are, particularly with regard to the possibility of failure. I am afraid that this set of amendments covers some of the same ground. I will do my very best not to repeat what has already been said. The whole point of Amendment 3 is to restore the wording that occurred in the original 2006 Act to indicate clearly what are the duties and accountability of the Secretary of State. There are two reasons for that. First, many of us wish to ensure that what was beautifully described by the noble Lord, Lord Hennessy, as institutionalised altruism—his description of the National Health Service—should survive and continue. In order to retain the trust of the public who care so much about it we have to make absolutely clear that the Secretary of State’s ultimate responsibility is not impaired. There is another reason for that, not just the fact that so many members of the public believe in the NHS; that is, we need to retain their trust while the huge changes that are envisaged to make the National Health Service successful for the future are carried out. We need to do that by indicating that there is no reduction in the ultimate powers of the Secretary of State.

There is also a key constitutional issue. I am sure that the noble Baroness, Lady Jay, will speak to this so there is no point in my going into detail now, but the constitutional issue concerns—to put it in a sentence—exactly who is accountable and responsible for £120 billion of taxpayers’ money which is spent on the National Health Service and on health more generally. The remarkable thing about the NHS, which has been mentioned by many Peers, is that it is taxpayer funded, and because it is taxpayer funded it is in many ways much more efficient and effective than many of its competitors in other parts of the world. Therefore, it is incumbent on Members of both Chambers of Parliament to retain accountability to the people of England for this huge sum of money through Parliament and the Cabinet. That means we have to make it clear that that channel passes through the Secretary of State.

The brilliant and concise report of the Constitution Committee chaired by the noble Baroness, Lady Jay, traced its concerns about ambiguities and uncertainties with regard to the duties and powers of the Secretary of State. The noble Baroness will express this matter better than I can, but I simply want to draw the House’s attention to the concluding remarks not of the Constitution Committee but of the Government themselves in responding to the Future Forum’s concerns about accountability. The Government state:

“As the Future Forum’s report highlights, some people are concerned that the Bill could weaken the Government’s accountability for the health service”.

They go on to say:

“There have even been some fears that the core principles of the NHS could be weakened”.

Then, encouragingly, the Government went on to say that,

“the Forum is right to point out that the current drafting of the Bill is not clear enough, and we will amend it”.

I am responding to that promise by the Government in the hope that we can as a Committee ensure that that amendment takes place in ways that we regard as satisfactory.