Health and Social Care Bill

Lord Mackay of Clashfern Excerpts

Tuesday 25th October 2011 Lords Chamber

[Baroness Finlay of Llandaff]

My Lords, it has been said that if you do not know where you have come from, you do not know where you are going. It is important for us to remember what we are talking about: a nationalised healthcare provision that arose originally because there were people who could access no healthcare. We have a situation in this country that is the envy of the world: if you are seriously ill, by and large you will get treated well and, most of the time, to standards of international excellence irrespective of who you are, your financial means, your social standing or anything. That does not apply in other parts of the world.

Those of us who have spent any time in the US will have seen what happens to some people who are not covered. I will never forget a young black man I saw with a terrible cardiac condition. All the money had run out and he was dying in a hospital because there was no further treatment. I was a medical student then and it made me resolve never to practise privately, which I never have, and to do all I could to further the principles of the NHS.

I suggest that there is much merit in considering a preamble, as the noble Lord, Lord Mawhinney, has just outlined. This brief debate has shown that the wording of this preamble is not right—I am sure that the noble Baroness, Lady Thornton, will not be moving it today—but that there would be merit in taking it away and coming back to it at a later stage. Perhaps I am wrong and she intends to move it; I did not have that discussion with her beforehand. However, I suggest that there is much here to commend.

We have a country that is very worried about its NHS, which is much beloved because it is the universal insurance policy that everyone needs if things go terribly wrong and they lose their health. The NHS Constitution was universally welcomed because it set out simple principles. There is much merit in enshrining that at the front of the Bill partly because, as it is written now, it concurs with the NHS and the direction of travel, accepting lots of change, that we want to see. There is anxiety that this could be amended in future.

We have had scandals about bad patient care. We have heard about bad staff attitudes, things not being done properly and personal interest overriding the interests of the patient population. There is much to be said for looking at putting in the Bill the vocational role of patient care and the duty to the health of the nation for those who are well to prevent ill health where we can, maximise the potential of those who are ill and restore them as much as possible to quality living. In the delivery of that, everyone, wherever they are coming from, whether they are a state sector employee or a private commercial venture, should adhere to the Nolan principles. That very essence of how we care for each other in our society sets the moral tone for the whole of our society. The Nolan principles are, if you like, the minimum that we should require across the board.

There is the question of transparency and openness. Questions have already been raised during this debate about potential conflicts of interest for those commissioning who may also be providing. There is a need for transparency about financial transactions and other personal career interests that might be there—about family members working in different parts of the service, about where people’s thinking might be biased and distorted, and about where there may be a wish to cover up one thing or another for different motives but where transparency would serve the greater good better. Linked to that, of course, is openness.

There is much merit in stating up-front on the Bill where we want to go. Where the NHS has come from, starting before its foundation and then as it evolved, has served us better than the alternatives. We want to drive up care and we want to change. Much can be changed and made more efficient. Nobody is advocating fossilising the services we have, but the principles about what we are trying to do need to be in the Bill.

[Lord Mackay of Clashfern]

My Lords, in 1946, the then Government promoted the National Health Service. They did so in the National Health Service Act 1946. Section 1 of that Act states:

“It shall be the duty of the Minister of Health (hereafter in this Act referred to as ‘the Minister’) to promote the establishment in England and Wales of a comprehensive health service designed to secure improvement in the physical and mental health of the people of England and Wales and the prevention, diagnosis and treatment of illness, and for that purpose to provide or secure the effective provision of services in accordance with the following provisions of this Act”.

Section 1(2) states:

“The services so provided shall be free of charge, except where any provision of this Act expressly provides for the making and recovery of charges”.

These are plain, clear, concise words which completely incorporate the fundamental principles of the National Health Service, as they have done since 1946. What is more, these provisions are enforceable at law, as the decision quoted by the Constitution Committee shows. They are enforceable in law, clearly, easily, without difficulty.

The previous Labour Administration had many skilled Ministers in the Department of Health to my certain knowledge and I pay my warmest tribute to them. One of them was the noble Lord, Lord Darzi, and during his watch in this House the National Health Service constitution was promoted. As some of my noble friends have said, that was agreed by all parties. The noble Lord, on behalf of the Government, declined to put that in a statute. I questioned that, because if we are dealing with the constitution of the service, one would think that it should go into the statute that is the fundamental part of setting up the service.

The Act of Parliament incorporated a duty such as referred to in the first part of this amendment, to have regard to the constitution. Everyone in the health service had to have regard to the constitution. The Government declined to put that into legislation. When I asked the noble Lord, Lord Darzi, why that was, he explained that he did not wish the constitution of the NHS to become a plaything for lawyers.

Noble Lords will understand that that reason was not particularly attractive to me. On the other hand, the sense of what he was saying certainly was, and I accept that it was wise and is still wise. The obligation to have regard to the constitution is fundamental and remains. However, I do not believe that it is possible for us to provide a simpler, clearer and more effective preamble to the National Health Service Act at any time than that which was thought of by the founding fathers of the National Health Service in 1946.

I should point out that this is not strictly a preamble at all; it is a first clause in the Bill. However appropriate some of these sentiments may have been for a resolution at a party conference, they are not suitable for an Act of Parliament, in my respectful submission, because the provisions in an Act of Parliament should be enforceable. When we have such a clear constitution of the NHS and such a fine example in what was provided by the founding fathers, which is enforceable, I respectfully suggest that it is unwise to muddy the waters now. I embrace all the sentiments expressed in this draft amendment and hope that we will have them in mind as we go through our later deliberations. All the sentiments are very acceptable, with the exception of the one about the market, which I find a little difficult. However, I will not elaborate on that now.

I am extremely grateful to the noble Baroness, Lady Thornton, and the noble Lords, Lord Hennessy and Lord Owen, for discussing this matter with me yesterday. I greatly profited from that discussion. It took me back to the beginning of 1946 when I was a second-year student at university. I remember that one of the difficulties envisaged in the founding of the health service was the fact that family doctors—GPs—did not wish to be employed by the Government. Therefore, the constitution provided that the Secretary of State had to provide the service—he did that from time to time at the beginning in hospitals and so on—or secure the provision of the service. “Secure the provision” was, of course, the one operative for GPs. That has served us well. As far as I am concerned, the proposed constitution, however one appreciates the principles that it expresses, is neither as clear or precise nor as readily enforceable as what we have. I respectfully suggest to the noble Baroness that she might wish to consider that aspect.

[Lord Peston]

My Lords, I, too, support my noble friend Lady Thornton. I suffer from the disadvantage that it seems to me the amendments are totally clear and it is perfectly obvious what they are saying. I totally agree with them for one specific reason which noble Lords opposite will find extremely disagreeable; namely, that I believe that this Bill paves the way for the end of the National Health Service as it was founded and as we know it and have experienced it. The whole purpose of our deliberations in Committee is to try to save the National Health Service. I am not optimistic that we can do it, because the Government do not seem to be in listening mode on this Bill.

The noble Lord, Lord Hennessy, puts his finger on the main question here, which is the ethos of the National Health Service. If someone does not understand the difference between a market ethos and, if you like, a public service ethos, they ought not to be taking part in these debates, as the two are completely different. The purpose of a market ethos is to make money and perhaps then do good as a result. I refer to the famous Adam Smith quotation regarding the baker and the butcher and why they provide their services. However, that is not the nature of the health service. Noble Lords opposite cannot wriggle out of that.

Noble Lords may also find it disagreeable that the only reason I am alive today and addressing them is because I have had marvellous service from the NHS over the past few years in my time of need. That service was as good as any that one could pay for. I, of course, paid for it though my taxes, but you cannot buy a better service. That is the fundamental point, and noble Lords opposite cannot wriggle out. If they support the Bill and do not like these amendments, they are paving the way for the end of the service as we know it.

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[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.

[Lord Mackay of Clashfern]

My Lords, I support the view that this is an extremely important issue. It is also extremely difficult and there is a lot to be done to get this right. I am an honorary fellow of two Scottish medical colleges. The contribution of Scotland to the training of doctors and nurses has to be kept in mind, and many other parts of the world also contribute to our NHS training, particularly at the graduate stage. It makes it extremely difficult to know how to cater for all the possibilities and I wish my noble friend every success in coping with this problem.

[Lord Hunt of Kings Heath]

My Lords, as this is the first day of a new stage of the Bill, I am required to start by declaring my interests. I am chair of the Heart of England NHS Foundation Trust, president of the Royal Society of Public Health, the Fluoridation Society and the Health Care Supply Association, consultant trainer with Cumberlege Connections and member of the advisory council of Easy Care.

The noble Lord, Lord Cotter, put his finger on it when he spoke of concerns about the quality of nursing care in some parts of the NHS. This has led in the past few months to considerable debate about the quality of education and training of nurses and indeed healthcare assistants. We will, of course, be coming back to that issue later in Committee. However, it has served to illustrate the critical importance of education and training of the healthcare workforce, be they doctors, nurses, AHPs or indeed even psychotherapists.

My Amendments 6 and 44 seek to ensure that the Secretary of State exercises leadership and responsibility in this area. This is very important in the context of the Government’s intention to create a much more diverse and disparate healthcare system in the future. It is essential that we protect the integrity of a national approach to professional education and training.

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[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 Mackay of Clashfern]

I did not intend to intervene; I was hoping that the noble Lord might have finished.

[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.

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[Lord Mackay of Clashfern]

My Lords, your Lordships’ Constitution Committee, under the distinguished chairmanship of the noble Baroness, Lady Jay, has raised in a very succinct and clear manner a doubt that has arisen in relation to the constitutional position of the Secretary of State. The word “provide”, that was in the original duty as an alternative to “securing the provision of”, has been deleted by the provisions of this Bill. The reason for that is that the Secretary of State has never had an obligation to provide services: he has had an obligation to provide the services or secure their provision. We mentioned earlier, for example, in the very early days of the Secretary of State’s initiation of the health service, the position of general practitioners who, on the whole, did not wish to be employed by the Secretary of State, but were willing to provide services. The arrangement was that the Secretary of State, under the statute, had an option.

At times during the existence of the health service, the Secretary of State exercised that option by providing, but in recent years, as I understand it, the only services have been provided by others and the Secretary of State’s operative duty has been to secure the provision of the services. I read out earlier, for those of your Lordships who were here then, the original wording in the 1946 Act. The first part of that has been completely retained in the present Bill. That is the provision that has been operated by the courts to control the activities of the Secretary of State in relation to the health service.

The reason that the word “provide” has been left out on this occasion is that the Secretary of State no longer in fact provides. I think that it is wise, if we are trying to modify the statutory structure, to do so in such a way that it conforms, to some extent anyway, with what is actually being done. Therefore, it is right to proceed on the basis that the Secretary of State will secure the provision of the services, as he has been under a duty to do as an alternative to provision from 1946 onwards.

The Constitution Committee studied this, and raised the question of whether that alteration damaged or altered the constitutional position of the Secretary of State. As your Lordships know, the noble Lords, Lord Owen and Lord Hennessy, proposed that that was a matter that should go to a Select Committee. I opposed that, as your Lordships may or may not remember, and ultimately your Lordships decided that we would go along with the ordinary method of dealing with these matters. However, having made that suggestion to your Lordships in the debate, I felt I should do my best to try to solve the problem that the Constitution Committee had raised.

I had a very full consultation with the government advisers—the policy-makers and the lawyers—and I concluded that there was a possible way of solving that ambiguity by making it clear, as it has been, that the Secretary of State’s duty is to secure the provision of services. However, the nature of the health service and what has been the position in the past in relation to the responsibility of the Secretary of State have not depended on matters being provided, but it has been understood that the Secretary of State would be answerable in Parliament. Indeed, he is responsible for providing the budget for the health service. I thought that the way to resolve this ambiguity was to make it absolutely plain in English that all of us can understand that the ultimate responsibility to Parliament would rest with the Secretary of State. This resolves the ambiguity that the Constitution Committee raised.

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[Lord Greaves]

This is the first time that I have spoken in this Committee and I repeat my interest in this Bill as a member of a local authority. The noble and learned Lord’s Amendment 4 refers to the “ultimate responsibility” of the Secretary of State and, thereby, accountability to Parliament. At the moment, Members of Parliament and noble Lords can raised detailed issues relating to the NHS—for example, hospitals in MPs’ constituencies that might be under threat of closure or change. Would the noble and learned Lord’s amendment allow that practice to continue?

[Lord Mackay of Clashfern]

In my clear opinion, yes. The idea of ultimate responsibility being with the Secretary of State is that his is not the first line of action under the statute, assuming it all goes through. Indeed, such statutory bodies already exist in the health service. They have responsibilities, but the ultimate responsibility, and that which brings the Secretary of State to account to Parliament, is the one that we want to fix on. It certainly means that he and his Minister in this House must account for the provision. I use that word; although he does not have a legal responsibility to provide, he has a legal responsibility of accountability to Parliament.

[Baroness Jay of Paddington]

My Lords, I am grateful to the noble Baroness, Lady Williams, and the noble and learned Lord, Lord Mackay of Clashfern, who adequately and precisely précised much of the important part of the Select Committee on the Constitution’s report on this part of the Bill, to which other noble Lords have referred.

I still have some difficulty, although I realise that the amendment of the noble and learned Lord, Lord Mackay, is helpful in addressing the problem that we have all been concerned with about ultimate responsibility to Parliament—the accountability and political responsibility, particularly for the enormous budget of the health service. I take all the noble and learned Lord’s points about the fact that in real life the Secretary of State is not running clinics or bandaging people in road accidents. However, my concern remains over why, as the Constitution Committee said, the provision clause cannot simply be maintained in the Bill. Such a clause was included in the 2006 Act and in all previous legislation—as were the Secretary of State’s responsibilities. I understand that in real life the current words do not necessarily confront the true situation, but his constitutional and legal responsibility are derived through those words.

I apologise to the Committee for not being here for the debate on the previous amendment; I was unavoidably involved at another engagement in the Palace. However, the noble and learned Lord, Lord Mackay of Clashfern, spoke eloquently on Amendment 1 and repeated to the Committee the effective and powerful words in the 1946 Act. They were widely accepted all around the House as being a forceful example of how the principles behind the Act should be invoked. There was discussion on that amendment as to whether the words should be revisited if we were considering some clause of principles in the preamble to the Bill. I took note of the words that the noble and learned Lord referred to from the 1946 Act, including the words embraced by the amendment of the noble Baroness, Lady Williams, because they have been placed in every Act relating to the health service since 1946. That is why I still find it difficult to understand why the Government resist retaining these words—although the noble and learned Lord produced an eloquent argument about real life and maintaining responsibilities to Parliament.

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[Lord Mackay of Clashfern]

Of course the words could be retained, but the question is whether it is right to retain them when, in fact, part of the option has not been in use—it was only ever an option. You should take account of what is actually happening. The passage that I was quoting as indicating what the health service is for was the general passage preceding that. These powers were given to the Secretary of State in order to implement the grand idea that was so well expressed in Section 1 of the 1946 Act. When these powers were given, they were given as options. The Secretary of State did not have to provide, he could do so by securing the provision. That option has always been there. Therefore, there has never been a legal obligation to provide, apart from such an option. When the option that has been chosen in recent years is the second one, it seems only right that the law should proceed on the basis of what actually happens. People in my profession are not unknown for continuing to use expressions from years past, which no longer have real substance to them. I do not think that it is a very good idea for Parliament to do that. However, Parliament may have understood the provision to have been the one whereby the Secretary of State was responsible. Therefore, that is the basis on which I have put forward the Secretary of State’s accountability to Parliament.

[Baroness Jay of Paddington]

I appreciate the noble and learned Lord’s intervention, which is very powerful. But the fact remains that as he said in relation to Amendment 1, those original words are both legally enforceable and very clear. That is in a sense our point. Although there is political capacity to put the points that he has put in his new Amendment 4, about making it ultimately responsible to Parliament, as he said himself on Amendment 1, the present wording is clear, legally enforceable and very straightforward.

Two things are legally difficult, apart from the political and constitutional relationship of the Secretary of State to Parliament and his accountability for the budget, which, again, the Constitution Committee drew attention to. This is in paragraph 9 of our report, which I may quote deliberately, because I would be very interested in the Minister and the noble and learned Lord’s reaction. Under the existing legislation, the words, which are the words in the amendment of the noble Baroness, Lady Williams, are always read together with the capacity which is in Section 3(1) of the 2006 Act, replaced in this Bill by Clause 10, which enables that provision of services. We can discuss at greater length whether they are adequate in the noble and learned Lord’s Amendment 8, and whether they are read together in the courts. Our paragraph 9 states that,

“the courts have made it clear that the Secretary of State’s duties in these sections are to be read together”.

In the leading case, which was R v North and East Devon Health Authority, colloquially known as the Coughlan case, the noble and learned Lord, Lord Woolf, when he was Master of the Rolls, appeared in the Court of Appeal. He ruled that, for example, the Secretary of State in Section 1,

“has the duty to continue to promote a comprehensive free health service and he must never, in making a decision under section 3, disregard that duty”.

The two are to be read together. You cannot dissociate the responsibility which has been in all of the Acts since 1946 from that duty to provide. In that sense, there is a question to both the Minister and the noble and learned Lord how they would resolve that problem, even if the wording in the noble and learned Lord’s Amendment 4 does cover some of the questions about responsibility to Parliament.

[Lord Mackay of Clashfern]

The answer to the noble Baroness’s question is this. The quotation of the noble and learned Lord, Lord Woolf, is from the first part—the duty is to promote a comprehensive health service for the reasons given. He does not—and could not, in the nature of things—refer to provision in the last part of that as a foundation for his judgment in Coughlan, because the provision was made by others. The question was whether it should be charged. So it is only the first part, not the second part. That is why I regard the first part as extremely important as the introduction to the statute—it is enforceable, and we have an example of it actually being enforced in Coughlan.

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[Baroness Hollins]

My Lords, I seek clarification. I am very sympathetic to the amendment tabled by the noble Baroness, Lady Williams. To remove a key word without good reason causes anxiety and I am not convinced by the reason given for removing it. Perhaps I could ask the noble and learned Lord, Lord Mackay, to clarify whether his amendment would ensure that the obligations required as a result of the Coughlan case would still be protected.

[Lord Mackay of Clashfern]

Yes, precisely; I tried to say that when I referred to the 2006 Act. The passage in the 1946 Act on which my noble and learned friend Lord Woolf relied as Master of the Rolls in Coughlan was the first part—that is, the duty to promote a comprehensive health service, free at the point of need. That was its function. It was in the nature of a preamble: the first part of the first provision of the Act. That was what my noble and learned friend Lord Woolf regarded as enforceable. In relation to Amendment 1, I said that that section had been demonstrated to be enforceable in law, which one could not say for sure about the amendment that the noble Baroness, Lady Thornton, promoted as the first clause of this Bill. Of course, the provision referred to by my noble and learned friend Lord Woolf is maintained in the Bill.

[Lord Hennessy of Nympsfield]

My Lords, at Second Reading, the noble Earl, Lord Howe, indicated that he wished to put the constitutional position and accountability to Parliament of the Secretary of State beyond doubt. In his letter to your Lordships of 20 October, he repeated his commitment, writing that:

“We are willing to listen and to consider the concerns that have been raised, and make any necessary amendment to put it beyond doubt that the Secretary of State remains responsible and accountable for a comprehensive health service, which we all want to see”.

Perhaps the simplest way of achieving this is to sustain the requirements of the National Health Service Act 2006, as the amendment in the name of the noble Baroness, Lady Williams of Crosby, seeks to do.

If successful, this amendment would certainly extend the legislative DNA captured in the pioneering National Health Service Act 1946. However, it can be argued—as it has been by the noble and learned Lord, Lord Mackay of Clashfern, the noble Lord, Lord Warner, and others—that the reality of the Secretary of State’s position since the late 1980s requires a reworking of the accountability of the Secretary of State that reflects the fact that successive incumbents have not been direct providers of services for over 20 years. For that reason, a differently crafted amendment, such as the one in the name of the noble and learned Lord, Lord Mackay of Clashfern, would be more fitting.

As the Minister has said, the test is the need for this Bill to be unambiguous in capturing the Secretary of State’s core constitutional position and accountabilities at the very apex of the NHS, where policy, administration and money meet. I have great sympathy with the impulses behind the amendment tabled by the noble Baroness, Lady Williams, but I also think that subsections (2)(a) and (2)(b) of the amendment tabled by the noble and learned Lord, Lord Mackay of Clashfern, make the Secretary of State’s accountabilities unambiguous. Therefore, I profoundly hope that the Minister will be able to accept the amendment tabled by the noble and learned Lord, Lord Mackay of Clashfern, as Parliament’s instrument for genuinely putting the matter beyond doubt.