Health and Social Care Bill

Lord Lester of Herne Hill Excerpts

Wednesday 8th February 2012 Lords Chamber

[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.

[Lord Lester of Herne Hill]

Does my noble friend agree that one of the vices in the amendment is that it would encourage judicial review proceedings and legal uncertainty? I say that as somebody who has taken advantage of the old wording to bring successful judicial review proceedings in Northern Ireland. The advantage of what we now have in the Bill is that it will not place judges in the position of seeking to run the health service, instead of Parliament, Ministers and the health authorities themselves.

[Earl Howe]

I defer completely to my noble friend, who is right to point out that one thing that we wish to avoid is a charter for a legal action and judicial review. I believe that we have avoided that because of the way in which accountability is now described in the Bill—or will shortly be described, when the amendments are passed. It is accountability primarily through the Secretary of State to Parliament. I thank the noble Lord for his observations.