Health and Social Care Bill

Baroness Williams of Crosby Excerpts

Wednesday 8th February 2012 Lords Chamber

[Baroness Meacher]

My Lords, I support this amendment very strongly and shall speak extremely briefly. Others have spoken most eloquently and very much made the case. My fear, too, is that the Minister will regard it as unnecessary. I have absolutely no doubt at all about the Minister’s commitment to mental health, but I believe that this is necessary because of the context in which the amendment is being posed—in other words, the Bill itself. What I mean is that the Bill is designed more than anything else to introduce privatisation of the NHS—slowly, slowly. It will not be done overnight, but in 10 years’ time we can be sure that a substantial proportion of our NHS will in fact be in private hands. If we look across the world to the US, Germany and other countries, we find that privatised health services do not support mental health to the degree that we in the NHS have supported it in the past. That is the most fundamental argument in my view. We have to protect our mental health services, albeit that they have been a Cinderella relative to the acute sector, but not to the degree that mental health services are Cinderellas in other countries where private health dominates.

That is my most important point. The only other part of the context is that the Bill will do nothing to make the changes that we need in the NHS, such as closures of redundant acute hospitals and redundant acute departments. I hope that this Government, unlike many previous Governments of whatever hue, will take the leadership role and show that they support mental health. I appeal to the Minister not to say that this is unnecessary. I appeal to him to agree that it is necessary and to give and show the Government’s commitment to equality of parity of mental health and physical health in this country.

[Baroness Williams of Crosby]

My Lords, my noble friend Lord Alderdice made the strong point that in the real world mental health is not regarded as being on all fours with physical health. For the reasons presented by my noble friend Lord Carlile and others, clearly in the real world mental health is often hidden. It is often an issue that people do not freely address and it is vital that we send a clear signal from this House that mental health is absolutely equivalent in significance and importance to physical health, and that we believe that.

I shall briefly say what has already been said. Will the Minister at the very least consider taking this debate back and looking at whether there could be an agreed amendment that would meet his difficulties? There may be drafting difficulties, but it would not in any way resile from the statement that this House believes that mental health is vital and we want it on the face of the Bill. I plead with him to consider doing that.

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[Baroness Williams of Crosby]

My Lords, perhaps I may respond very briefly. The real argument that we should be having is almost certainly on the next group of amendments, and I have no intention of taking away from that debate in which, as we know, the noble Baronesses, Lady Jay and Lady Thornton, and other noble Lords—although unfortunately not my noble and learned friend Lord Mackay today—will take part. It is an important debate that symbolises for me something of crucial significance, and that is that in this House we have moved towards all-party agreement on the constitutional underpinning of the National Health Service; that is a great achievement.

I shall not take further from what the noble Baroness, Lady Jay, will want to say—except that perhaps I shall follow her on this issue—beyond saying that I am deeply saddened that over the past day or two we have seen what I believe to have been a far-reaching and radical attempt in this House to try to present an all-party consensual underpinning for the National Health Service being turned into what one can only describe as the most petty of political rows whose seeming intention is to try to acquire political balance for one side or the other. That is a great shame.

I think that many of us believe that the wording which has been accomplished—although I note the commitment of the noble Baroness, Lady Thornton, to the word “provide”—means that we can be satisfied with the constitutional group. We do not need to change the wording and what is now set out in the Bill after this long exercise is in fact legally watertight. I say that because some of the most distinguished lawyers in this House were part of the drafting process, including on the Labour side the noble and learned Baroness, Lady Scotland. On the Conservative side we had the outstanding figure of the former Lord Chancellor, my noble and learned friend Lord Mackay of Clashfern, and on my side, among others, my noble friends Lord Clement-Jones and Lord Marks of Henley-on-Thames. All these lawyers put their heads together in order to establish a basis on which we could agree, and I would suggest to the noble Baroness, Lady Thornton, for whom I have a great deal of respect, that if the word “provide” did not surface during that exercise, it is because it is to a great extent at odds with the facts at the present time as to who actually provides services for the NHS, and of course that has changed radically in recent years. It has changed radically because of steps taken not only by the present Government but also by the previous Government, when a great deal of provision came from newly established elements in the private sector, including intermediate treatment centres. Efforts were made to bring about an extensive network of hospitals to look at how far private treatment could be accepted and it was done on the basis of trying to bring new providers on the scene, which the noble Lord, Lord Darzi, among others, has talked about. I am probably one of those who are more “old-fashioned” in their view of the privatisation of the NHS, which I certainly would not support. That is not the same as talking about the competitive providers who under the previous Government and the present one have made some contribution to the services of the NHS.

I say with great respect to the noble Baroness that this pair of amendments is unnecessary. I think that, legally, the existing wording now stands up and has the precious boon of having been supported by all parties in this House and those who sit on the independent Cross Benches. We should therefore move on to the next group of amendments and be able, among other things, to celebrate our achievement, which I hope will enable the National Health Service to flourish and survive into the rest of this century.

[Earl Howe]

My Lords, as my noble friend has correctly reminded us, the next debate will give us the opportunity to discuss the package of amendments designed to clarify the Secretary of State’s accountability for the health service. I recently completed a series of meetings with Peers from across the House to understand their concerns about this and related issues. Thanks to the efforts of so many here today, including the noble Baroness, Lady Thornton, I am pleased to say that we have sufficient consensus to table a series of amendments on this matter. I very much look forward to discussing them when we reach subsequent groups.

Amendments 3 and 4, tabled by the noble Baroness, Lady Thornton, seek to reinstate the duty to provide. I do not wish to dwell too long on what I have said on previous occasions, but the noble Baroness will be aware that we are retaining the wording of the NHS Act 1946, where appropriate. For example, the Secretary of State retains his duty to,

“continue the promotion in England of a comprehensive health service”,

and his duty to,

“secure that services are provided”.

The reason for our removing the 1946 duty on the Secretary of State to provide services himself is that it fails to reflect the reality of the way that NHS services are delivered. In general and for many years, the Secretary of State has not himself exercised functions of providing or commissioning services. The functions are delegated to SHAs and PCTs. Under the Bill, however, this function will be conferred directly on a dedicated NHS Commissioning Board and CCGs.

Indeed, as my noble and learned friend Lord Mackay of Clashfern has pointed out previously, there has never been a straightforward duty to provide services. The requirement was framed as a duty to,

“provide or secure the … provision of”,

services. In practice, Ministers or the NHS bodies responsible for exercising the Secretary of State’s functions have usually exercised the second option, securing the provision, rather than the first, actually providing. The Secretary of State—that is, the Department of Health—has not provided NHS services directly for many years. Our policy is that the Secretary of State should neither provide nor commission NHS services.

It is clear from these amendments that the Opposition are harking back to a centralist, top-down approach. They sometimes say that they want clinical commissioners, but these amendments contradict that. They would not create a system of clear responsibility but instead one where Richmond House was always right. That model has been tried to the point of exhaustion and has been found wanting. In contrast, the Bill establishes a framework in which the Secretary of State no longer has the powers to provide or commission NHS services. Instead, those functions are conferred on other bodies in the system. An amendment to Clause 1 to impose a duty on the Secretary of State to provide services—or a duty to exercise his functions so as to provide them—is simply not consistent with that framework.

When this issue has been debated previously, one of the main arguments against losing the duty to provide was that it would result in reduced accountability to Parliament for provision. Although that has never been our intention, we have, as I said, tabled amendments to put beyond doubt the matter of ministerial accountability. Given that the Secretary of State does not provide services directly, and that the amendments we will debate shortly clarify beyond doubt the Secretary of State’s continued accountability to Parliament, it is not clear what an amendment to reinstate the duty to provide would achieve in practice.

If these amendments are about ensuring that the Secretary of State takes the steps required to secure the proper provision of NHS services, I simply reassure the noble Baroness that the Bill already does this. It requires the Secretary of State to,

“exercise the functions conferred by this Act so as to secure that services are provided”.

That is a strong and onerous duty, sufficient to ensure that the Secretary of State discharges his responsibility for the NHS.

In explaining these amendments, the noble Baroness repeated her call for the Bill to be withdrawn on the grounds that nobody supports it. I acknowledge that there are opponents of the Bill but she must also acknowledge that many in the medical community and in the wider public support our reform programme. We know that clearly from the listening exercise last year when many thousands of people contributed their views. Those views about the principles of what we are trying to achieve came through loud and clear. In the main, the concerns revolved around implementation. We believe that we have addressed those concerns in amendments to the Bill and in other announcements that we have made that are non-legislative in nature. We continue to believe that our plans for modernisation are essential if we are to put the NHS on a sustainable long-term footing. I will explain a few ways in which that is true, and will try to do so in clear, layman’s language without resorting to departmental technical speak.

Without the Bill, Ministers would remain free to continue to micromanage the NHS. There would be no legally enforceable duties to tackle health inequalities as the Bill introduces such duties for the first time in this country. There would be no legally enforceable duties on quality improvement because it embeds quality improvement throughout the system. There would be no duties on NHS organisations to involve patients in decisions about their care. Failing organisations would continue to be propped up using taxpayers’ money—the Bill tackles that problem in a creative way. Governments would be able to prioritise the private sector over the NHS—the Bill ensures that such behaviour is prohibited. Patients would continue to lack the means to hold the NHS to account because the Bill gives patients real power by establishing HealthWatch so that the interests of patients and the public can be championed throughout the NHS. Withdrawing the Bill would cause disruption and chaos at a time that the NHS most needs certainty about the future. As has been said today, the NHS is already in a state of change. That cannot be sustained indefinitely because it puts additional strain on management capacity and creates additional cost.

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[Baroness Williams of Crosby]

My Lords, may I, too, say a word or two about this brilliant process? It is important to say that at the moment we are discussing Amendment 5, for which the noble Baroness, Lady Jay, has a large and commendable share of responsibility. However, the constitutional agreement that we have reached goes a great deal further, embracing Amendment 6 and the amendments to Clauses 4 and 12, which we will discuss a little later.

We are discussing much more than even Clause 5. A whole range of substantial constitutional amendments go a long way to sustaining what the noble Lord, Lord Hennessy, expressed wonderfully when he spoke about this constitutional move a long time ago. In particular, the amendments put the concept of the NHS constitution at the centre of the future of the NHS. At Second Reading, the noble Lord, Lord Hennessy, used a phrase about the 1946 Act that I thought was absolutely right. He said that it was as close to institutionalised altruism as we have ever come. “Institutionalised altruism” is a wonderful phrase. It reminded me—my memory goes back this far—of another phrase used by another great warrior for the NHS, Professor Richard Titmuss of the London School of Economics. He gave a book that he wrote about blood donation the wonderful title The Gift Relationship.

It is appropriate to say to those who talk about society that a good society must be underpinned by the concept of mutual altruism within it. Nothing represents that more clearly than the National Health Service has done. I very much hope that all those who share that view will, within their own parties, make it clear that there is a greater responsibility on us than to indulge in party back-slapping and bickering; and that is to make sure, between all of us, that the NHS thrives and looks after the health and care of the people of England, and of Britain more widely.

However, having said that, I want to say two further things. As the follow-up report of the Constitution Committee indicates, there was a distinct gap following the letter that was originally sent by the noble Earl, Lord Howe, about the constitutional changes. Subsequently, on 2 November, when we were in the early stages of Committee, there was a substantial shift by the noble Earl and the department, away from a somewhat small-scale response to this much more generous and widespread response on all the constitutional issues, some of which we have still to debate later this evening. The reason why it was so important—and the reason why the House of Lords should not sell itself short—is that in that gap between 10 October and 2 November, the very imaginative House of Lords moots were held, with all Peers invited, led by the noble Earl, Lord Howe. These shifted the whole situation further towards the concept of a constitutionally shared settlement. That was a contribution by many Members of this House of all parties and, including the Cross-Benchers, of none. It was significant. It expressed the serious attempt to reach a conclusion that was based on consensus in this House. I hope that consensus will last.

In passing, I mention that we need to look at the whole package to see just what an amazingly substantial and imaginative idea it is. Although we will no doubt go on to argue, as we should, about the issues that remain out there—such as competition, conflicts of interest and others on which we have strongly held views—we should, in sitting down this evening, be very pleased to be able to say that we have achieved this much with the great help of the Constitution Committee and others. Those who took part have every reason to feel that they have been part of a substantial experiment that I hope will be followed further in Parliament, not least in this House.