Cities and Local Government Devolution Bill [HL]

Lord Hunt of Kings Heath Excerpts

Wednesday 15th July 2015 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, this has been a very useful short debate. I think that the Minister will know that those of us who take an interest in NHS matters have no problem at all with the aims of the Bill, particularly in Greater Manchester; we all see the advantage and the potential of pulling together the NHS, local government, the university sector and the hugely important life sciences sector within Greater Manchester. We are also very grateful to the Minister, both for the meeting that she arranged and for agreeing that we can come back to my Amendment 31 at Third Reading in order to ensure that regulatory and supervisory functions cannot be included in a transfer of responsibility.

I also say to her that I take it this will also involve the funding of local Healthwatch being taken away from constituent local authorities. I do not expect her to respond to this; I merely make the point that their job is to provide an independent assessment of local health services. If health is transferred to local government in the way provided, there is no way that local authorities should continue to have the money routed through them to fund local Healthwatch. Clearly, it should be allocated by national Healthwatch directly to local Healthwatch. We will certainly come back to this at Third Reading; it is a very important matter that I wanted to give her notice of.

Then there is the issue that a piecemeal approach by order could inadvertently undermine the national nature of the NHS. We are looking for a response at Third Reading that recognises that there has to be some statement about the integrity of the NHS as a national service. Those are the two issues that I put to the Minister. Perhaps people in local government do not understand that a lot of what is done in the NHS is done not through statute but by what has been described as soft power. In other words, at the end of the day the Secretary of State for Health can ring up any chairman or chief exec of any NHS body and, in the end, they will do what they are asked to do because they all recognise that they are part of the national NHS family. It is very important that we do not lose that sense of belonging if you are transferring functions to local authorities. The DCLG relationship with local authorities is very different from the relationship between the Department of Health and NHS bodies.

Many of the actions that are taken are not done through statute. For instance, none of the fantastic reconfiguration of stroke services in London, a reduction from about 20 to nine services that has led to hugely improved outcomes, was done through statute; it was done because people recognised that there was a lead from the centre and they responded to it. My concern is that once we move in the direction of the Bill, we will lose a lot of that sense of national cohesion. That is why some statement in the Bill rather than through individual orders would be so important and, in supporting where we are going with the Bill, would give some measure of comfort to people in the NHS.

[Lord Mackay of Clashfern (Con)]

Having listened to this debate, and with a certain interest in these matters, it occurs to me that the devolution proposed in the Bill is a devolution from one subsidiary authority to a local authority. There is no devolution of the responsibility of the Secretary of State, which is guaranteed under the 2012 Act. The Secretary of State remains responsible, in the same way as he is in relation to the existing health services. In a way, therefore, that is the theoretical guarantee for the National Health Service, except of course that the practical implications in which these things are worked out may be affected by this. The relationship between the Secretary of State and a local health authority may be a bit different from his relationship with the Greater Manchester authority. There is a possible problem in that area, but I think that we should emphasise that the Secretary of State is not by the Bill being empowered to devolve his responsibility as Secretary of State for the National Health Service.

[Lord Hunt of Kings Heath]

My Lords, I always hesitate to respond to the noble and learned Lord, because he always comes back at me, but I am sure that he is right about the statute. It is more about the symbolism of that leadership. I know that one should avoid unnecessary legislation, but this is crucial. This is a very thin Bill in terms of pages; in terms of its significance, it is hugely important. Some of us are looking for some reassurance in statute that the essential point of what the noble and learned Lord said will continue in future.

[Baroness Williams of Trafford]

My Lords, I start by thanking my noble and learned friend for putting everything so succinctly and eloquently in summing up what is the case in the NHS in relation to devolution, and the noble Lord, Lord Warner, for again eloquently outlining his amendment.

Amendment 66 puts certain limitations and conditions on the conferral of health powers on a combined authority or another body working with a combined authority. In particular, it requires the Secretary of State to consider that various conditions are met; that the other body must be a body corporate with a chief accounting officer; and that a memorandum of understanding is produced and reported against. It also prevents the Secretary of State intervening except in certain circumstances.

As we have discussed, Amendment 28, which was passed, and others in its group would enable any limitations or conditions to be specified in an order transferring health functions and were intended to provide assurance that any future devolution arrangements will continue to uphold existing accountabilities and national standards for the NHS.

Most of the limitations and conditions that the noble Lord, Lord Warner, outlines could be specified in an order using those provisions if doing so were considered appropriate in the context of a bespoke devolution deal. For example, we could enable the conferral of health powers to a combined authority to be accompanied by a condition that it must also meet current statutory duties held variously by the Secretary of State for Health, NHS England and clinical commissioning groups, thereby ensuring continuation of current NHS accountabilities and standards.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, I just want to raise a specific point about that which the intervention by the noble and learned Lord has raised. Notwithstanding what the Minister said about current accountabilities, my reading of new subsection (4) in Clause 6 is that because the Secretary of State may by order transfer a function and that the new subsection defines the public authority as being a Minister of the Crown or a government department, in some circumstances, the Secretary of State’s power is indeed transferred to the combined authority. That modifies the noble and learned Lord’s position, and that is why it is so important.

[Lord Warner]

Before the Minister responds to that, perhaps I may add to it. I read from her statement on Monday evening, where she makes it absolutely clear that, under Amendment 28, we would be conferring on the combined authority many of the duties, such as,

“the duty to seek continuous improvement in the quality of services, reduce health inequalities, promote the NHS constitution”,

and to,

“seek to achieve the objectives in the NHS mandate”.—[Official Report, 13/7/15; col. 439.]

As I understand it, what she is saying openly and transparently is that those duties get transferred to the combined authority through the order. If someone then says to the Secretary of State, “I don’t like the way health inequalities are going on in Cornwall”, or wherever, presumably, the Secretary of State can say, “Tough. I passed an order through Parliament which enabled me to offload that duty to this group of people for a period of time”.

Is the Minister saying that she did not mean what she said on Monday, or have we got this wrong?

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, I am sorry to intervene again but surely the whole problem is that the Secretary of State may in fact devolve that to a combined authority under the Bill? That safeguard ultimately may not apply. That is the problem. Look at Clause 6(4). The very fact that by an order-making power a government department or a Minister of the Crown can be abolished takes away that essential safeguard. This is a local government Bill, essentially written for local government duties. I can see how it fits, but once the NHS is taken in, we are talking about a very different order. No one is objecting to what is happening in Greater Manchester—I applaud what is happening there. At this stage, all we are asking is for the Minister to allow us to consider what she has said and bring it back at Third Reading. She is, I know, trying to be very helpful.

[Baroness Williams of Trafford]

My Lords, I am trying to be helpful, although I am not sure that I am being very helpful. I indicated to the House on Monday that we are considering with a view, as appropriate, to returning at Third Reading to the question of whether to exclude from functions that can be transferred those regulatory and supervisory functions of national regulators responsible for regulating public authority functions. However, I would add that our consideration is not about how to exclude them on an order-by-order basis but whether to take these regulatory functions out of the scope of the Bill. This would put beyond doubt—whatever devolution deals, including health, were agreed—that the position of the regulators, such as Monitor and the Care Quality Commission, would be untouched, as indeed would the NHS constitution and mandate and all the NHS standards of care and access, as my noble and learned friend Lord Mackay pointed out.

With these perhaps not entirely satisfactory explanations, I hope the noble Lord will agree to withdraw his amendment.