Health and Social Care Bill

Earl Howe Excerpts

Tuesday 25th October 2011 Lords Chamber

We are in Committee, and if this amendment has been put forward in the spirit of Committee—not as something to vote upon but to press the Minister on—I think many of us will have some sympathy with that and perhaps something more suitable will come back at a later stage. However, one must agree that it is not suitable to go into the Bill, certainly in this form.

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

My Lords, I begin by thanking the noble Baroness for introducing these first two amendments in our Committee proceedings. I confess that I approach them with a feeling of some nostalgia: a debate about overarching principles has been a feature of our Committee proceedings on a number of health Bills over the past several years, and I therefore understand entirely why the noble Baroness and other noble Lords opposite should have approached this particular Bill with a similar thought in mind.

Amendments 1 and 52, tabled in the names of the noble Lords, Lord Hunt and Lord Beecham, and the noble Baronesses, Lady Thornton and Lady Wheeler, seek to set out the key principles of the NHS. I am grateful to the noble Baroness, Lady Thornton, for explaining them so clearly. As regards their broad intent, I am sure she will be pleased to hear that the Government support most of these principles very warmly.

However, despite having confessed to a feeling of nostalgia on the Opposition’s general approach, unfortunately I have to let them down gently by saying that the amendments as they stand will not do. I suggest to the Committee that the various principles listed can be categorised into two groups: the unimpeachable and the unworkable. Unfortunately, even the unimpeachable parts are completely superfluous in legal terms. As we are in the business of creating statute—which, the noble Lords will understand, needs to be devoid of unnecessary verbiage—that does actually matter.

Let me start with what might be termed unimpeachable but unnecessary. I hope that I do not need to say again what I have already said on a number of occasions—that the Government strongly support the NHS Constitution. All organisations, including private bodies, already have a legal duty to have regard to the constitution when performing NHS functions or providing NHS services. Included in these principles is that:

“NHS services must reflect the needs and preferences of patients, their families and their carers”.

This enshrines the principle that the NHS is there for patients. Under the Health Act 2009, the Government cannot change the principles in the constitution except through regulations.

We have already made provision in the Bill for the NHS Commissioning Board and clinical commissioning groups to have regard to the NHS Constitution. Commissioners, therefore, are covered by the Bill. NHS providers, including foundation trusts, are already subject to this duty under the 2009 Act. We are not changing this. I am sure that it is unwitting on the part of the noble Baroness, but this subsection set out in Amendment 1 would actually do something undesirable; which is to restrict the group of people who must have regard to the constitution. At the moment, the duty applies not only to NHS bodies, and others performing statutory functions under the Act, but also to those providing services to the NHS under contract, including private providers. The amendment would appear to have the effect of removing these people from the constitution’s sphere of application. I cannot believe that the noble Lords opposite want this; and I certainly do not.

The amendment is also restrictive—again, no doubt, unwittingly—in referring just to the principles and values contained in the NHS Constitution. My noble friend Lord Alderdice was right to point out that it fails to refer to the rights and responsibilities laid out in the constitution, which many might say should not be seen as being of lesser importance. The amendment sends out conflicting, and therefore confusing, signals about the constitution.

Subsection (4) states that:

“There must be transparency and openness wherever taxpayers’ money is being spent, and all accountable individuals and bodies should abide by the Nolan principles”.

We do, of course, agree that transparency, openness and accountability must be general principles applicable to the NHS. This is why, under the new system, every NHS organisation will have its duties transparently conferred by Parliament, with the Secretary of State retaining ultimate accountability for the NHS. It is why we are providing for the boards of foundation trusts and clinical commissioning groups to meet in public, and it is why we have said that all NHS contracts will be published. As we will discuss over the coming weeks, I genuinely believe that this Bill will provide a far greater degree of transparency than current legislation about what the Government require of the NHS, and what is delivered in return. It is, I suggest, unnecessary to augment these tangible provisions with a generalised statement of principle—and unwise as well, because expressed as an absolute duty, it does not make allowance for those things which should certainly not be open to transparency and openness, such as patient confidentiality.

While I fully welcome the due regard paid by noble Lords to the noble Lord, Lord Nolan’s fine seven principles of public life, the suggestion that these must be set out as principles of the NHS for all bodies to abide by is unnecessary because there is already an expectation that all public bodies, including those of the NHS, should abide by the Nolan principles. My noble and learned friend Lord Mackay was right to remind us of something else. To put the Nolan principles into statute would, I am afraid, represent a fast route to a lawyers’ charter, something that the previous Government wanted to avoid when they set up the NHS Constitution. We have already made specific pledges that NHS bodies must abide by the Nolan principles. The Government said in the July document, Developing the NHS Commissioning Board:

“Subject to the passage of the Bill, the Board will be required to have a Chair and at least five non-executive members. Their key purpose will be to ensure effective governance, consistent with Nolan Principles, to hold the Board’s executives to account, and to contribute to the success of the Board’s key external relationships”.

In our response to the Future Forum, we said that:

“The authorisation process for clinical commissioning groups will ensure that they have robust governance requirements consistent with Nolan principles and are accountable and transparent. This will not be a one-off test: the NHS Commissioning Board will hold commissioning groups to account for this on an ongoing basis”.

It is not necessary to enshrine the Nolan principles in statute. They already have force and will continue to do so.

Subsection (2) of the new clause says that NHS services should,

“promote quality, equity, integration and accountability”,

which roughly paraphrases some of the principles in the constitution. It also overlaps or duplicates some of the general duties we have set out in the Bill, such as those relating to quality and integration. However, it adds the words “not the market” which is not a phrase that one might describe as being of luminous clarity. “The market” is a phrase which could mean all sorts of things. I take it that the noble Baroness does not mean that the NHS should never purchase anything at all from a private body or organisation in the marketplace or benefit from improvements in quality which derive from such providers. If she means the market for healthcare provision, as I think she does, that too would bring to a complete halt the process begun in earnest by the last Government which has led to patient choice in elective services. I know that the noble Baroness is not against patient choice, so it would be a pity if an amendment were to put that policy in doubt. The Government are absolutely clear, however, that an American-type free market in health services should not and will not happen in this country. I would simply point to the amendments made in another place which put this beyond doubt. The Bill now explicitly provides that Monitor’s role is to protect the interests of patients and the public, not to promote competition as if it were an end in itself. It also contains a range of safeguards against the use of price competition or any policy that might favour a particular sector of providers.

The market has a part to play in the NHS. It can enhance choice and drive up quality. As the noble Lord, Lord Darzi, said at Second Reading:

“The right competition for the right reasons can drive us to achieve more, work harder, strive higher, and stretch our hands and reach for excellence. It can spark creativity and light the fire of innovation”.—[Official Report, 11/10/11; col. 1492.]

Subsection (3) in the amendment refers to the primacy of patient care. We can all agree with the sentiment that underlies this: patients come first. I take the point made by the noble Earl, Lord Listowel, that change has been unsettling for NHS staff in the past. However, as worded, the amendment may have the effect of creating a presumption against any reconfiguration of NHS services, for the simple reason that all reconfiguration brings with it a certain element of inconvenience for patients, however temporary. If the NHS were prevented by concerns over whether it had complied with this duty from reorganising itself financially, it would not be able to extend the scope of the tariff, for example, in response to the creation of a new integrated pathway of care. Improved outcomes for patients were at the heart of our NHS White Paper and at the heart of this Bill: greater choice and patient involvement, continuous improvements in quality, reduced inequalities, and better integration around the needs of individuals are the objectives set out in the Bill with force and clarity. We cannot have a provision that acts as a block on all future change.

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[Baroness Thornton]

My Lords, I thank all noble Lords who have taken part in this debate. It is a very useful start to the Committee stage and consideration of this Bill. I want to say to noble Lords who began their remarks by suggesting that somehow or other this was not an appropriate amendment to put down that this is the Committee stage. It is entirely appropriate to look at a preamble and principles that should inform the rest of the Bill. I want to thank noble Lords for all their remarks—particularly the noble Lord, Lord Hennessey, my noble friend Lady Donaghy, my noble friend Lord Rea and the noble Baroness, Lady Morgan, for their very wise words.

The noble Baroness, Lady Jolly, said the constitution is a good constitution. If that is so, why should it not be in the Bill? Indeed, at 80 minutes into this discussion, the noble Baroness also said that we might be wasting the time of the House; that it was not sensible to prolong the debate. I think the debate has shown the noble Baroness, Lady Jolly, that it was a discussion worth having. I hope that when the Liberal Democrats do not feel comfortable about things we propose from these Benches they will not suggest we are prolonging the debate.

The noble Earl, Lord Listowel, made very important points about the principles of trust and the principles that should underpin this Bill. I take comfort from the questions the noble Earl raised. I thank the noble Lord, Lord Mawhinney, for his good sense until he reached his conclusion, of course. There is nothing wrong with repeating good things in a Bill. In fact this House spends a lot of its time putting things into Bills that are repetition of what has gone before.

The noble Baroness, Lady Finlay, made a very wise speech. She said our NHS is the envy of the world and that is indeed true. She also made a very good point about the importance of the statement of principles and what it might achieve. We think that this is a good statement of principles, drawing on a variety of sources, and I shall probably test the opinion of the House on it. However, if we fail on this occasion, I should be very happy to work with the noble Baroness and any other noble Lord to find another form of words which we might bring back at a later stage of the Bill—indeed, the noble and learned Lord, Lord Mackay, might have given us the drafting.

The noble Lord, Lord Ribeiro, said that it was motherhood and apple pie. There is a mixture of messages here, but I actually think that motherhood and apple pie are really rather good. The noble Lord spoke about entering the market. As I made clear in my opening remarks, the part of the amendment which refers to the market addresses the priorities and principles that should be used to underpin the future of the NHS. If those priorities and principles are applied clearly, they are not the market in those terms.

I took some comfort from the remarks of the noble Baroness, Lady Barker, because she knows that we have been round this course on many occasions. The noble Lord, Lord Owen, prayed in aid Bevan and Beveridge, and I thank him for his support. To the noble Lord, Lord Phillips of Sudbury, I say that it is clear my charm offensive is not going to work on his Benches, which I regret. However, if he wishes to raise the issue of the number of pages in this legislation and its supporting documentation, he probably needs to address those remarks to the Minister and not to me.

The noble Lord, Lord Alderdice, misunderstood the point about the constitution. I do not know which light he thinks the amendment seeks to shut off, because we think that it provides us with a broad base of principles.

The Minister provided his usual forensic interpretation of the amendment. I had a great sense of déjà-vu, because all the arguments that he used against it were exactly those that I had heard my noble friends use against having a statement of principles or preamble in a Bill when they were Ministers.

[Earl Howe]

The difference was that in the 2009 Act I gave way to those arguments.

[Baroness Thornton]

The noble Earl set up, and then knocked down, a series of Aunt Sallies about the market, about how the amendment would halt change, and about how it was too big, too small and too detailed. It is actually rather small. I understand the Minister’s position on this. We have a long way to go on this Bill and this is just the beginning of it. We do not see why passing the amendment will inhibit further debate or discussion on the Bill in its entirety. In fact, I know this House too well not to know that nothing will inhibit noble Lords from discussing the Bill in the detail that it merits.

[Earl Howe]

Is the noble Baroness saying that the NHS Constitution needs to change by virtue of her amendments?

[Baroness Thornton]

No, that is not what the amendment says.

[Earl Howe]

It is, my Lords, because Amendment 52 does not repeat the NHS Constitution. Ninety per cent of the principles are missing from it and we therefore move into a new world. The previous Government laid down very clear procedures as to what to do when a Government wished to change the principles of the NHS. That involves public consultation and so on. Does the noble Baroness wish to bypass all that?

[Baroness Thornton]

My Lords, this is Parliament. We can take a decision. It is not about changing the NHS Constitution. We are seeking to put some of the principles of the constitution in the Bill. We think that that is a perfectly proper thing to do. I beg to test the opinion of the House.

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[Lord Cotter]

My Lords, like others, I should declare an interest. My father was a GP and my wife an occupational therapist. I have taken an interest in the NHS for the past 12 years in Parliament, but I feel more intimidated than the noble Lord, Lord Mawhinney, for good reason. However, I see great merit in Amendment 2 and the other amendments in the group. As many colleagues have said in their speeches, there is a big issue here that needs to be addressed in a specific way. To be specific, at Second Reading I raised the issue of healthcare assistants. A concern has been expressed to me by others—and I read in the newspapers—that a voluntary code for healthcare assistants may just not be enough.

This morning I was speaking to a nurse and she made a very clear point. She said: “We are directing healthcare assistants in nursing and we give them the jobs to do but I do have a concern that if they do not have sufficient training they may carry out the job I have given them not particularly well and that is a responsibility which goes back upon my shoulders.”. To quote from the papers,

“It is amazing that healthcare assistants, caring for patients in uniforms indistinguishable from nurses, are completely unregistered”—

That may not be quite correct, I do not know—

“and can start work with as little as an hour’s training”.

I have highlighted this issue for later in the Bill. I hope the Minister will consider this and have time to look at it at a later stage.

[Earl Howe]

My noble friend will be aware that we have had two Oral Questions recently that have covered this point. I want to correct one point he made—our proposals are for a voluntary register, not a voluntary code. He was talking about a voluntary code. If under our proposals a healthcare assistant were to register under the voluntary system there would be a set of standards that went with that registration. The code would not be voluntary in that sense. I look forward to the later stages of our Committee debates to discuss these very important issues. We will have that opportunity.

[Lord Cotter]

I thank the Minister very much. As usual he was addressing the issues. I hope that by highlighting them again we will ensure that training is going to be really adequate for them to meet the requirements.

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That is parliamentary counsel at its very best. But what does it mean? I am worried that it is rather a restrictive definition of the powers of the Secretary of State. I should be grateful if the Minister could respond to that point. In particular, can he assure me that the Secretary of State will have sufficient power in relation to the budget for education and training and the number of training commissions linked to national workforce planning, that there will be structures to underpin a comprehensive approach, that public health doctors will be covered, that standards will be set and monitored, that Health Education England will be properly accountable to the Secretary of State and thence to Parliament, and that the duty on the Secretary of State will embrace all parts of the NHS and other providers? Above all, can he assure me that the ethos that my noble friend Lord Winston mentioned, of a commitment on the part of all those in the health service to education and training, will continue under the new arrangements?

[Earl Howe]

My Lords, I thank the noble Lord, Lord Walton, for introducing his amendment, which began this debate, and other noble Lords for their excellent and powerful contributions.

The Government recognise that we have some of the best health professionals in the world and we believe that they should be supported by a world-class education and training system. I am heartened by Amendments 2, 6, 8A, 8B and 44, because they indicate that many noble Lords here today share the Government’s view on this matter. That has been amply confirmed by the speeches that we have heard.

Amendment 6, tabled by the noble Lord, Lord Hunt, and the noble Baronesses, Lady Thornton and Lady Finlay, and Amendment 2, tabled by the noble Lords, Lord Walton and Lord Patel, would both insert in Clause 1 a duty on the Secretary of State to maintain a system of education and training in the health service.

Amendment 44, tabled by the noble Baroness, Lady Thornton, and the noble Lord, Lord Hunt, would insert after Clause 5 a new clause that would give the Secretary of State a new duty to maintain a comprehensive, multi-professional education and training system for health professionals, as well as to ensure the continued professional development of all staff delivering NHS services.

Amendments 8A and 8B, tabled by the noble Baroness, Lady Finlay, would both insert in Clause 1 a duty on the Secretary of State to maintain a “nationally co-ordinated” system for professional education and training as part of the comprehensive health service.

In its report earlier this year, the Future Forum emphasised the critical role that education and training will play in the continued improvement of healthcare services. In our response to its report, we not only made it clear that we agreed with this point but also, in recognition of this fact, committed to introduce an explicit duty for the Secretary of State to maintain a system for professional education and training as part of the comprehensive health service.

Government Amendment 43 fulfils the commitment that we made in June in response to the Future Forum’s report. Indeed, it goes further than our original commitment. First, the Secretary of State’s duty goes beyond just health professionals—I say to my noble friend Lord Cotter that healthcare assistants would be included, as well as other health professionals. Secondly, the Secretary of State will be under a duty to maintain an “effective system” of education and training rather than just a “system”. I was not quite clear, listening to the noble Lord, Lord Walton, whether the Government’s amendment has found favour with him. It has been very carefully drafted and I hope that he will support it. I say to the noble Lord, Lord Hunt, that the amendment is not restrictive of the Secretary of State’s accountability. I hope that he can see from the wording that the duty is clear. Subsection (2) is drafted so as to cover all potentially relevant powers. These are not necessarily powers in the 2006 Act. We are satisfied that he has sufficient powers.

I take this opportunity to reassure the noble Baroness, Lady Finlay, and the noble Lords, Lord Warner and Lord Hunt, that our amendment provides for co-ordination of education and training at a national level. We agree that that is essential; it has never been in question. The Secretary of State will be under a duty to secure “an effective system” of education and training. No system of education and training could be considered effective were it not co-ordinated at a national level. The noble Lord, Lord Warner, was right to mention some of the wider issues that need to be factored into that process. In addition, a new body, Health Education England, will be set up to provide oversight and national leadership for education and training. In its leadership role, HEE’s task will be to bring together all the relevant parties to oversee and shape the development of the healthcare workforce, including the royal colleges and the professional regulators. Finally, the department will own the strategic design of the new education and training system and develop an education and training outcomes framework to set out the outcomes against which the system, and HEE, will be held to account. That is a first.

We believe that the amendment that we have tabled most accurately reflects our policy intention and the Secretary of State’s legal functions in relation to education and training in the new system. Indeed, we have already seen a positive response from the BMA to our amendment.

[Lord Maclennan of Rogart]

My noble friend was a little cursory in dealing with Amendment 44 and the criticisms made by the noble Lord, Lord Hunt. Why he has not simply accepted the amendment of the noble Lords, Lord Walton of Detchant and Lord Patel, which seems to be all-embracing and to cover the entire spectrum of healthcare issues, in the light of the requirement, which is in the Bill, that the Secretary of State must continue the promotion in England of a comprehensive service designed to secure improvement? My noble friend spoke not of improvement, but of supporting existing services. That does not go far enough in the present circumstances.

[Earl Howe]

My Lords, I cannot speak for Amendment 44, which is not the government amendment; but I can speak for Amendment 43, which is. My advice is that the amendment delivers everything that my noble friend has just said. I have not given a critique of the amendment of the noble Lord, Lord Walton, but as I have been invited to do so, I will now offer one. It does not cover non-clinical staff or trainees; it covers the healthcare workforce. So, in actual fact, I think it is deficient; and I urge the Committee to accept the government amendment on that basis.

[Lord Warner]

I am sorry to interrupt the Minister’s flow, but he has been interrupted, so I thought I would ask my question now. The Minister has given us quite a lot of assurances about what the government amendment would cover, but I put to him a particular issue that came up—not that long ago, in 2006—when there was a major national row about the number of specialist training places. A large number of doctors and would-be doctors marched on London to complain about that system. It was absolutely clear that the only person who could deal with that issue in any satisfactory way, for both the professions and the public, was the Secretary of State. Is the Minister absolutely confident that the government amendment would enable the Secretary of State to act in such circumstances?

[Earl Howe]

The Secretary of State could act if Health Education England was failing in its functions. Our vision is that we will be giving functions to Health Education England to oversee a national system. If it does its job properly, then the situation the noble Lord describes would, one hopes, be handled in a satisfactory way. If it fails in its functions, then, yes, of course it would be the duty of the Secretary of State to step in and oversee the process.

[Lord Owen]

This is a crucial question. The word failure is extreme. A lot of us worry that waiting for failure would be too late. We want to see an intervention capacity when the Secretary of State has anxieties or doubts about what it is doing and that he has a position to represent this Parliament—or any Parliament —on the issue.

[Earl Howe]

I know that is the noble Lord’s concern and of course I understand it. However, it is the policy of the Government to confer functions where they best sit. If the Secretary of State were to intervene at any whiff of trouble, it would run counter to that vision. I believe that there will be ample scope in the next set of amendments to talk about this very subject; but it is very important to understand that we have quite deliberately taken the view that functions, duties and responsibilities should sit with individual bodies and that the Secretary of State should be there to ensure, to the public and Parliament, that those bodies fulfil their duties and functions correctly.

I suggest that we defer the particular issue raised by the noble Lord, Lord Owen—about the degree of system failure that has to occur before the Secretary of State intervenes—to the next set of amendments. The amendment we are dealing with now has to do with the ultimate accountability of the Secretary of State for the education and training system—which I am saying to the Committee is there in our amendment.

[Lord Mawhinney]

I understand why the Minister wants to take this issue in the next set of amendments. A number of us will contribute to that debate, because it is crucial. A moment ago, he said that the Secretary of State would have national co-ordination responsibilities for education and training, which I think was broadly welcomed. My question is simple: is my noble friend willing to put that phrase or convey that aspect in the Bill by amending government Amendment 43?

[Earl Howe]

The trouble with that is that we are straying into the mechanics and the detail of the education and training system, and we are still consulting on how it will work. That is the difficulty I have in answering some of the detailed questions that are being put to me. I can answer many of them, but once we move into particular questions on how the system for education and training will all fit together, it would be imprudent of me to put anything on to the record at this stage.

[Lord Patel]

I go back to the question that the noble Lord, Lord Warner, asked. In the event that the example he gave should happen, ipso facto, it would mean that Health Education England had failed.

[Earl Howe]

It might or it might not. All I can say is that the Department of Health will have designed and co-ordinated the new system and will develop the outcomes framework. Health Education England will be providing oversight and national leadership for education and training. The department and Health Education England, together, would no doubt have a role in sorting out the kind of situation that the noble Lord, Lord Warner, has adumbrated. However, it is a little difficult to discuss this in hypothetical terms. I have tried to set out, broadly, how the system should operate—

[Lord Warner]

My example was not hypothetical—it actually happened.

[Earl Howe]

It did happen, but it did not happen with the system that I have outlined in place. As I have just said, NHS Future Forum is talking to a great many people about where exactly responsibilities should sit for what, and how the system should work, which is why—I confess freely—I am in difficulties. While I would love to be able to answer detailed questions about the system, we have quite consciously deferred these matters to a second Bill.

[Lord Winston]

Perhaps I could ask the Minister a general question. The noble Lord has been specific in picking up some of the details of the amendments. The beauty of the amendment proposed by the noble Lords, Lord Patel and Lord Walton, is its simplicity and ethos. Government Amendment 43, proposed by the Minister, refers to the,

“delivery of education and training to persons who are employed, or who are considering becoming employed”,

in the health service. Considering becoming employed can mean a whole range of things. A lot of people who are considering becoming employed in the health service may not actually apply for a job. How is that possibly enforceable within the context of this amendment?

[Earl Howe]

I am surprised by that criticism because that is designed to capture trainees, who may not have a guaranteed job at the end of the day. If you simply refer to people who are already employed, you surely cut that cohort out of the equation. That is the purpose of those words, and I think they are entirely appropriate.

[Lord Hunt of Kings Heath]

I return to my noble friend Lord Warner’s intervention. In the case that he mentioned, it was I who was summoned before the Health Select Committee to explain what we were going to do about the problem. We intervened and told the SHAs that they jolly well had to sort this out. I do not see, under the arrangement that he is proposing, who on earth is going to be able to intervene.

As the noble Lord, Lord Owen, suggested, I suspect that an intervention against Health Education England will be very rare indeed, in terms of being able to be comprehensively assured that HEE had failed in its duty. Indeed, there is surely a risk that if you have a narrow quango, such as HEE, solely concerned with education and training, it will not be concerned about resource issues or about the duty of the Secretary of State to promote or assure a comprehensive health service; only the Secretary of State himself can come to conclusions about the overall direction of the health service; only the Secretary of State can balance the conflicting demands of education, service provision and resources. There is a great danger of seeking to push all these responsibilities offshore, because when trouble comes—and trouble will come—it will be the Secretary of State whom the public and Parliament will expect to intervene. At the moment, I cannot see how, under this system, if things go wrong, they are to be put right.

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[Baroness Finlay of Llandaff]

Before the Minister resumes his speech—I am sorry to do this, but I would like clarification. From what he has said, I understood that under this amendment the Secretary of State will not have a comprehensive duty, so that if Health Education England finds that the National Commissioning Board and the clinical commissioning groups are not making provision for education within the commissioning process that they set in place, the appeal would not go to the Secretary of State. I am not sure who the educational providers would appeal to if Health Education England found that it could not function because the commissioning process was not allowing for education.

[Earl Howe]

Perhaps I may just clarify some of this. The wording of the government amendment could not be clearer:

“The Secretary of State must exercise the functions … so as to secure that there is an effective system for the planning and delivery of education and training”.

That means that he is ultimately accountable. Of course, he will be answering questions in front of the Select Committee or Parliament: that is a given in relation to education and training, as it is for anything else. The role of Ministers in Parliament will not change. Ministers will still answer letters, Written Questions and so on. Whatever system we put in place, the government amendment makes the Secretary of State’s ultimate accountability and responsibility for ensuring an effective system absolutely clear. However, many of the questions that have been asked—I was very grateful to the noble Earl, Lord Listowel, for what he said—are about how the system will work, and that is a matter on which we are still listening to stakeholders.

[Lord Mawhinney]

I want to go back to what my noble friend said about the Government committing themselves to a national co-ordinating role for education and training. He specified that it was something that the noble Lords, Lord Walton and Lord Patel, and the noble Baroness, Lady Finlay, would welcome, because they had been asking for it. He said that and we are all pleased that he said it. When I asked him if he would put that in Amendment 43, he said that he could not do it because they were still consulting and thinking and that that was a commitment that he did not feel able to make at the moment. But he has already made the commitment. It is on record that the Government will have a national co-ordinating role. I am not trying to put words in my noble friend’s mouth; those are the words that came out of his mouth. My question was simply, what is there to stop the Government putting those words, that commitment, in Amendment 43?

[Earl Howe]

I am grateful to my noble friend and, naturally, I will give full consideration to his suggestion. The government amendment represents the fulfilment of our undertaking, made in another place and more publicly, to put clearly in the Bill the Secretary of State’s accountability for an education and training system. That is what we have done. It may be that we can go further in the Bill; I will certainly consider that. Our intentions, as I have enunciated them, are clear, but I come back to saying that we do not want to pre-empt the findings of the Future Forum and the wider consultation that we are engaged in.

[Lord Winston]

I am sorry to interrupt the Minister again, but I find it incredible that we are now in Committee in the second Chamber on this large Bill and the Government are still apparently in the middle of their listening exercise. Does this not argue that the Bill is extraordinarily badly prepared and that these things should have been thrashed out well in advance? Is that not what the noble Baroness, Lady Tonge, was talking about? It is something that will shock people who are listening to this debate.

[Earl Howe]

No, my Lords, that is not the case. I completely reject not only that remark but also the remark of the noble Lord, Lord Davies of Stamford. Our plans for education and training have been moving forward ever since the election. The White Paper in July 2010 set out the broad principles underpinning education and training reforms. A consultation paper was then published in December last year, with the consultation finishing in March of this year. The Future Forum then listened to further views. It recommended the new duty which we are discussing today in the form of Amendment 43, and we accepted that recommendation. Meanwhile, the Future Forum continues to listen to the views of the wide range of stakeholders and its report will feed into future legislation on this topic. We have consciously deferred the meat of this issue to a future Bill, because we have to get it right. We have committed to publishing further proposals on education and training once the Future Forum has concluded its report and there will be a chance for noble Lords and others to feed in at that point if they so wish.

[Lord Davies of Stamford]

I am afraid that I must stress this point a little further. This debate has revealed a fundamental contradiction in the Government’s position. The Minister argues that Amendment 43 adequately defines the responsibilities that the Secretary of State will have for ensuring that there is an adequate system of medical training and education in this country. It may or may not be the case that the formulation in Amendment 43 is adequate, and we must decide on that matter today.

At the same time, though, the Minister is confessing that the powers that will be given to the Secretary of State in order to fulfil those responsibilities have not yet been defined. We do not know what they are. They have not been decided yet. Surely it is a fatal mistake in life to give anyone responsibility without being clear that they have the powers to undertake it. That is precisely the position in which the Government are placing the Secretary of State.

[Lord Walton of Detchant]

My Lords, before the debate on these amendments concludes, it had not been the intention of my noble friend Lord Patel and me, on coming to the Committee today, to divide on our Amendment 2. However, our view has been changed a little in the sense that the support that that amendment has had from all sides of the House has been very powerful. I shall read again what the actual Bill says. Under the heading,

“Secretary of State’s duty to promote comprehensive health service”,

it says:

“The Secretary of State must 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 illness”.

All that we have suggested in Amendment 2 is the addition of a paragraph (c) to secure improvement,

“in the provision of education and training of the health care workforce”.

I find it difficult to suggest that any Government could refuse that amendment. It could be complementary to government Amendment 43. Will the Minister, who everyone in this House feels great respect for, take the amendment away, talk to the Government about it and see whether they might accept it as a government amendment on Report?

[Earl Howe]

I will happily consider that between now and Report, as indeed I will consider all the points that have been powerfully made in this debate. I have quite a lot more to say in answer to various questions that have been raised, and I hope that I will be given the opportunity to do so.

The Government’s amendment, quite consciously, does not confer any new powers on the Secretary of State. It requires him to exercise his existing powers to provide an existing system. The duty means that he would have to intervene if the system was failing and ineffective. He has a range of powers, including the powers to provide or commission training under Section 63 of the 1968 Act, as referred to in subsection (2) of the Government’s amendment. However, the point is that future legislation may add further powers to those that the Secretary of State already has, and that is what I cannot pre-empt in my reply today.

[Lord Willis of Knaresborough]

My Lords, I am sorry to interrupt. I have listened carefully to the whole debate today and it seems that we are hampered by the fact that we do not know what is going to go into this new Bill or indeed when it is going to appear. The Minister has been consulting on this issue for nearly 18 months. Will he give the House a clear understanding that in the next Queen’s Speech there will be two Bills, one of which will deal with education and training while the other deals with research? Could he give the House that assurance so that we know what the timetable is for the delivery of these elements?

[Earl Howe]

I would like nothing more than to give that assurance but unfortunately I cannot, as I am not in a position to know what the Government’s programme in the next Session is going to be. I know that it is the hope and wish of many noble Lords that we will have a social care and health Bill.

[Lord Willis of Knaresborough]

This is important. I understand what the Minister is saying but at least he could have given us guidance that such Bills would have been in the next Queen’s Speech. If we are talking about another period of two years or more, we are looking at total confusion for that period of time in terms of the delivery of education, training and, later on, research. That cannot be what the Government want; it certainly cannot be what the Minister wants.

[Earl Howe]

My noble friend knows—very well, I hope—how important research is to Ministers in my department, how important education and training are and how important it is that we have a system for the provision of social care that commands the support of all parties. A Bill of that kind is something that we dearly wish to see coming to Parliament as soon as possible. However, he will understand that I am not in a position to give any undertaking about the next Session, much as I would love to be able to wave a wand and do so.

Perhaps I could be allowed to answer some of the questions that have been asked of me.

[Noble Lords]

Hear, hear.

[Earl Howe]

The noble Lords, Lord Walton and Lord Turnberg, asked me about postgraduate deaneries. Postgraduate deans carry out a crucial function of quality assurance and oversight of medical education, and we value those functions. The Government were clear in our response to the NHS Future Forum that we intend to retain the deans. In future they will become part of the new provider-led bodies that will be responsible for education and training locally. We have extended the timetable for the abolition of the strategic health authorities to April 2013 to allow for greater time to manage a smooth transition. We propose that Health Education England will be established next year as a special health authority in order to support the transition.

The noble Lord, Lord Turnberg, made the telling point that the time available for teaching is steadily being shaved away so that clinical commissioning groups, as he put it, should have the budget to fund teaching sessions. Funding for clinical placements and the associated costs already comes via the multiprofessional education and training budget, which at the moment is £4.9 billion, a not insignificant figure. This budget will be allocated by Health Education England in future to healthcare and education providers.

The noble Lord also asked me about the training of public health doctors and whether such doctors employed by Public Health England and seconded to local authorities would be caught by this. Health Education England will work with Public Health England to oversee education and training for public health staff. I suggest that there will be ample time on later clauses to discuss the role of public health doctors more generally; that is perhaps where we can come back to this, and I look forward to that.

The noble Lord, Lord Patel, asked how Health Education England would hold providers to account and how local skills networks will be governed. HEE will have contracts with healthcare providers for education and training, and this will be underpinned by an education outcomes framework. We envisage that skills networks will need to have an independent chair and meet rigorous authorisation criteria set by HEE to demonstrate that they have appropriate capability, financial controls and the necessary partnerships with the education sector.

I was also asked by the noble Lord, Lord Walton, and the noble Baroness, Lady Finlay, how we will ensure that the policy of “any qualified provider” does not harm education and training and, indeed, how private providers will be contributing to education. The noble Lord, Lord Hunt, asked me a similar question. By giving healthcare providers more responsibility for workforce development, we will place a greater emphasis on their working in a co-operative way to ensure a workforce supply of health professionals. This will be reinforced by duties on healthcare providers—I apologise to him for the phrase, but it is an all-embracing one —to consult on workforce plans and co-operate on the planning and commissioning of education. Proposals are being considered for a levy on all healthcare providers to contribute to the costs of education. However, this is a very complex matter and it needs more detailed consideration before being looked at for future legislation.

With regard to the responsibilities of the board and clinical commissioning groups, an issue raised by the noble Lord, Lord Walton, paragraph 130 of Schedule 4 to the Bill amends Section 258 of the NHS Act 2006 so that the Secretary of State, the NHS Commissioning Board and clinical commissioning groups must all exercise their functions to secure that facilities are made available for university clinical teaching.

--- Later in debate ---

[Baroness Masham of Ilton]

My Lords, could I ask the Minister about something that I do not understand? Why in my noble friend’s amendment does it not include the training of healthcare assistants?

[Earl Howe]

I have already made clear, my Lords, that the amendment could include healthcare assistants. We have been careful to make it all-embracing so that it includes not only all health professionals, but health support workers who are not health professionals.

[Baroness Masham of Ilton]

That is the Government’s amendment. The Minister said that my noble friend’s amendment did not include them.

[Earl Howe]

As I read it, it is the noble Lord’s amendment and it is for him to speak to it, but it refers to the education and training of “the health care workforce”. That will include a lot of people, but not those who are not healthcare workers.

[Lord Patel]

That depends on the interpretation of the word “care”.

--- Later in debate ---

[Lord Davies of Stamford]

My Lords, I congratulate the noble Baroness, Lady Williams, as she could not possibly have come forward with an amendment that is more pertinent, necessary and urgent in the light of the discussion that we have had already this afternoon on medical training and education. It was clear from that discussion that some extraordinary things are happening as a result of this Bill. One extraordinary thing is that duties are being placed on the Secretary of State without any consideration having been given, or certainly no decision having been made, as to what powers he will need in order to carry out those responsibilities. That is a very serious matter and I will come back to it in a moment.

The second serious matter is becoming clearer and clearer. One of the agendas of this very curious Bill—and one asks oneself what its real meaning and hidden agenda are—is obviously to decouple the Secretary of State steadily from political responsibility for the management of the NHS by creating an insulating barrier and a series of quangos. The Minister said this afternoon, in answer to the case put to him by the noble Lord, Lord Warner, about a repetition of the crisis in jobs for junior doctors that occurred a few years ago, that the Secretary of State would not be able to intervene, or to do anything at all, until he had determined that there was a failure by Health Education England. That means that, if he had Questions in the House, he would simply say, “It’s not my fault, Guv. Go and talk to the quango. I don’t know anything about it. I haven’t yet determined that there is a crisis”. That is an extremely unsatisfactory situation.

[Earl Howe]

My Lords, the noble Lord is caricaturing the position. The Secretary of State, in the case of education and training, would continuously hold Health Education England to account against a set of pre-agreed outcome measures. That is not standing at a distance from what Health Education England does. It is being intimately concerned with what it is doing. I do not want the noble Lord to caricature the Government’s position. I understand that he is not happy with the separation of functions, but that is a matter of policy; his policy differs from that of the Government. I do not want him to go away thinking that this is a totally hands-off affair. The Secretary of State will have legal responsibility and accountability for what Health Education England does and that will be manifested through the outcomes framework.

[Lord Davies of Stamford]

I am very grateful to the Minister. I will just respond to him before giving way to the noble and learned Lord, Lord Mackay. Indeed, I must not caricature the Government’s position; believe it or not, I do not want to do so. I want to reveal the Government’s position. I am trying to draw out the Government. We succeeded in doing that this afternoon; perhaps the latest intervention from the Minister is part of that. It was extremely useful, but I think it is clear that the Bill imposes certain duties on the Secretary of State and we have often heard, when it comes to the powers that he has, that it is not quite clear what the position is.

What I am particularly concerned about in the area of health education and training, but also in other areas, is, first, that the Secretary of State will be in a position to answer parliamentary Questions about anything to do, in this case, with health education and training. It might be on planning for numbers, public health or whatever, but there should be no sense in which he will simply say, “That is the responsibility of somebody else. I cannot answer that”.

Secondly, I am concerned about the actual powers that the Secretary of State will have to intervene—the ability he will have simply to give directions to one of these quangos, to override it in certain circumstances. The circumstances in which he would be able to override it need to be clearly defined. They should, of course, be defined already so we can look at them at the same time as we look at the new duties. However, they are not defined and we need to know that they will be. I will give way to the noble and learned Lord, Lord Mackay.

[Lord Davies of Stamford]

That is a very tactful way of putting it. I do not intend to speak for very much longer, but I want to complete my remarks. I simply want to say that any self-respecting person—and I am sure that the Secretary of State is one—would not accept being given duties and responsibilities without being clear about the powers that he or she had to fulfil them. I would not do so. This is a very anomalous position, where we are told that future consideration will be given to what exactly the powers will be, that future Bills will define them. I do not think that is a satisfactory situation at all, if that is the position.

[Earl Howe]

I made that point in connection with education and training where, as I have said repeatedly, we are still in consultation. As regards the Secretary of State’s powers and duties in this Bill, they are very clear; there is no ambiguity about them. We are going to be debating an amendment in the name of my noble and learned friend Lord Mackay, and I do not want to pre-empt that, but that amendment seems to set out very satisfactorily what the Secretary of State’s powers are. It draws them together very well.

[Lord Davies of Stamford]

It seems to me that the text of the amendment put forward by the noble Baroness, Lady Williams, differs from the Government’s position in the Bill in that it makes it absolutely clear that the Secretary of State has the duty to intervene. That is stronger wording, and I just wonder why the Government cannot accept it.