Health and Social Care Bill

Jim Shannon Excerpts

Tuesday 20th March 2012 Commons Chamber

[Grahame M. Morris (Easington) (Lab)]

I want to make a few points on Lords amendment 2, which deals with the Secretary of State’s duties. This has been the subject of one of the most fundamental debates during the course of the Bill. The Lords still have grave concerns about whether the Secretary of State does indeed have a duty to

“provide or secure the effective provision”

of health services in England. In addition, concern remains over exactly what the Secretary of State will remain accountable to the House for.

In Committee, the Lords agreed not to amend clause 1, or clause 4, in regard to the duty to promote a comprehensive health service and the Health Secretary's accountability to Parliament. Instead, they preferred to engage in negotiations with the Minister with a view to bringing back proposals before the Report stage. The Lords Constitution Committee also proposed amendments on ministerial accountability for the NHS. The Committee’s concern was that, even after the months of debate here and in the other place and the amendments that had already been tabled, the Bill still posed an undue risk to maintaining adequate ministerial and legal accountability for the NHS. Given the number of amendments that had been tabled, it was a remarkable achievement still to have such uncertainty.

The wording of amendments remained an issue, and on 2 February 2012, the Government tabled 137 amendments to the Bill covering a range of areas, including changes to clarify the responsibility of the Secretary of State for the health service. There were two key amendments: one sought to ensure that the Secretary of State

“retains ministerial responsibility to Parliament for the provision of the health service in England”.

The other sought to place the duty to promote a comprehensive health service and to exercise functions to secure the provision of services above that of promoting autonomy.

[Jim Shannon (Strangford) (DUP)]

The hon. Member used the term “comprehensive health service”. Does he feel that the changes to the NHS will deliver a comprehensive health service, or does he feel that what we will see is some people being able to access services while others are not? Is that not the sort of health care service that he would be against and to which the people of this country would object?

[Grahame M. Morris]

I am grateful for that intervention and I share the hon. Gentleman’s concern that this amendment, which deals with the Secretary of State’s powers, and, indeed, the whole thrust of the Bill, are likely to lead to a fragmented service, when what we all want to see is co-operation and integration. I am concerned about the direction of travel in that respect.

The point about autonomy is relevant, because Lords amendment 2 reiterates that

“The Secretary of State retains ministerial responsibility to Parliament for the provision of”

health services. Lords amendments 4 and 17 would further amend clauses 4 and 20 in order to downgrade the duty to promote autonomy even more, through the idea that the Secretary of State must only

“have regard to the desirability of securing”

autonomy instead. When it comes to ministerial accountability for the Secretary of State, we have a yearly mandate to the NHS Commissioning Board, which will remove the Secretary of State—and therefore Parliament—from being involved in or interfering in the running of the NHS. In that case, I ask the Minister: what would be the point of Health questions? As private health care interests take over the provision of health services, they will not be subjected to freedom of information requests or other forms of accountability to which NHS providers are subjected.

--- Later in debate ---

[Paul Burstow]

No, I am going to make some progress and then I will be more than happy to give way. [Interruption.] I am sure there will be more opportunities and I will give way in a moment.

On how Monitor exercises its powers, the Government have supported amendments made in the House of Lords, which were tabled by my noble Friend Baroness Williams, providing that the Secretary of State can give Monitor guidance to help ensure it exercises its functions in a manner consistent with the Secretary of State’s duty to promote a comprehensive health service. The amendments also help to ensure that the Secretary of State can discharge effectively his responsibility for the health service in England and to ensure that Monitor carries out its functions to that end. I therefore commend the amendments to the House. Both this House and the Lords have stressed the need for Monitor to use its powers to support integrated services and co-operation between providers. The Government therefore tabled amendments in the other place to provide express powers for Monitor to set and enforce licence conditions that would enable integration and co-operation between providers.

On the detail of Monitor’s specific regulatory powers, Monitor would have powers to intervene proactively to support commissioners in ensuring continued access to NHS services if a provider became unsustainable. Amendments tabled by the Labour peer Lord Warner, which we agreed in the other place, provide that Monitor will have to identify and publish evidence where it identifies risk that it considers arises from unsustainable service configurations. Those amendments would require commissioners to act on that information where necessary. Hence, they make clear the expectation that commissioners will address problems proactively and ensure that patients continue to have sustainable access to the services they need. These are sensible provisions that had support from all parts of the House of Lords and I hope that this House will also agree to them.

I want to say a bit more about the powers and responsibilities of Monitor, which relate to further amendments made in the other place. The extent of the various matters that Monitor would have to take into account was the subject of considerable debate in this House and the other place. I want to be absolutely clear about where we are regarding the overarching duty that Monitor has to take into account. Monitor will have a single, unequivocal duty—to protect and promote the interests of patients by promoting provision of NHS services that is economic, efficient and effective and that maintains or improves the quality of services. Beyond that overarching duty there is no hierarchy. No preference is given to competition or integration because integration is clearly a responsibility that sits with commissioners and Monitor’s role is to support it.

Peers also raised concerns about proposals for the Competition Commission to undertake seven-yearly reviews of competition in the provision of NHS services. The Government were sympathetic to the arguments and were concerned that it might be taken to suggest that competition was being given a higher status than the interests of patients. In order to avoid that, we accepted an amendment tabled by my noble Friend Lord Clement-Jones that removed the provision in the Bill for Competition Commission reviews. We also supported other amendments tabled by my noble Friend Lord Clement-Jones requiring the Office of Fair Trading to seek advice from Monitor whenever it considers mergers or potential mergers involving foundation trusts. The amendments will help to ensure that benefits to patients are evaluated on an informed basis by a sector-specific regulator giving its expert advice to the OFT in the discharge of its responsibilities and as a paramount consideration.

[Jim Shannon]

Many hon. Members will probably have received correspondence from the Nuffield Trust saying that

“much of the behaviour of providers will in practice be shaped by detailed guidance and the work on pricing conducted by both Monitor and the NHS Commissioning Board. The two organisations have a major task ahead of them to ensure there is the necessary information, data exchange, contracting and payment tools to support patient choice, integrated care, efficiency and quality.”

How would the Minister respond to the Nuffield Trust on that question?

[Paul Burstow]

What I heard the hon. Gentleman set out was a rehearsal of the interrelationship that exists between the NHS Commissioning Board and Monitor, particularly in the area of setting NHS tariffs and prices. For the first time, as a result of this legislation, there will be greater transparency and requirements about consultation in the design of those tariffs. At the moment, that process is obscured within the bowels of the Department of Health without accountability or public scrutiny. For the first time, this Bill puts that on a footing that ensures that transparency. As a result, it will produce much better tariff design for the future.

On Monitor’s role as the regulator of foundation trusts, it is important to be clear about this important part of the legislation. Foundation trusts will remain the principal providers of NHS services. The Government do not expect that to change. Monitor must therefore be able to continue operating a compliance regime transparently to assess and manage the risks, intervening proactively to address problems where necessary. The Bill is designed to reflect this and for Monitor to protect patients’ interests by regulating foundation trusts so that they continue to be able to provide NHS services in line with their principal purpose. Where Monitor identifies significant risk to a foundation trust’s continued ability to provide NHS services, the Bill provides Monitor with powers to intervene proactively to ensure that the risk is addressed. The Government agreed amendments in the House of Lords to clarify that further. In particular, the amendments clarify that Monitor’s powers to direct foundation trusts to do, or not to do, things to maintain essential standards of governance, or to ensure their continued ability to provide NHS services, will not be transitional powers. We accept that that previously was not as clear as it needed to be and we have made it clear.

We think that the Bill has been improved as a result of the amendments that were made in the House of Lords in that regard. Under clause 94 in the latest version of the Bill, Monitor’s enduring powers will include the power to set and enforce requirements specifically on foundation trusts to ensure that they are well governed. Monitor does that now and those requirements will need to be differentiated for foundation trusts to reflect their unique role and legal status as public benefit corporations financed by the taxpayer with a principal purpose defined in statute as being

“to provide goods and services for the purposes”

of the NHS. Monitor will also have enduring powers to set and enforce requirements on foundation trusts to ensure that they remain financially viable and to protect NHS assets. These measures deal with one of the concerns that has often been rehearsed about the privatisation of the NHS. The Bill does not provide that opportunity, but it provides for the protection of NHS assets. Those are necessary conditions of a foundation trust’s continuing ability to provide NHS services; they are not transitional issues.

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[Stephen Pound]

I yield to no one in my admiration for my hon. Friend and her knowledge of the slightly occult religious practices of south Spain—and possibly of parts of St Helens for all I know.

But we did not expect the Spanish inquisition. We expected a valid, proper, sensible voice to enable the people to engage with their national health service. The NHS must not be an isolated ivory tower dominated by the old consultant gods who used to run it. It must not be a matter of non-responsible bureaucrats in quangos sending letters of suggestion. The NHS must contain a proper mechanism for the people’s voice to be heard and, above all, for the involvement of the wider community. The NHS cannot be a stand-alone organisation; it has to be involved with local councils and local communities, but everything in the proposals for this mealy-mouthed, milquetoast healthwatch nonsense dilutes and destroys that.

All the proposal does is create a false illusion—a falsity; the suggestion that somehow the voice of the people will be heard through this mere sub-committee of the Care Quality Commission, a committee whose mighty weapons arrayed against the forces of reaction and conservatism consist of the ability to write a letter. Such a letter would have to be vast, powerful and extremely effective, and would have to do what no letter has ever done in the history of epistolatory warfare. It would somehow have to persuade people on this gentle nudge—I appreciate that there are those on the Government Benches much given to the modern, modish philosophy of the nudge, but there is nudging and there is fudging, and what we have heard tonight is a fudge-nudge.

Above all, however, there is a crucially significant and important point here.

[Jim Shannon]

Do the hon. Gentleman’s exhortations mean that the pen is not mightier than the sword?

[Stephen Pound]

I am not entirely sure, Mr Speaker, whether you would allow the debate to go down that line, but were anyone in Northern Ireland to suggest a model such as that being proposed tonight, they would get a very dusty answer—it might not be replied to with sword or pen alone, but it would certainly be responded to.

The NHS is not something that we choose to buy into or out of. It is something that we all subscribe to. For many people—I should think everyone in this Chamber except me—it is a part of their birthright. People have been born under the NHS, have lived with the NHS, have funded the NHS and have supported it, and their voices must be heard. What we have tonight does not represent a valid mechanism for people to engage with the NHS. That is the key point. It is simply not good enough to set up a sub-committee of a quango and imagine that it has any force. We must realise that, yes, people may have different political opinions and there might be different priorities, but we do not have differential rates of national insurance. We pay national insurance because it is our national health service, and we have a right to have our voices heard.