Health and Social Care Bill

Lord Mackay of Clashfern Excerpts

Monday 19th March 2012 Lords Chamber

[Lord Fowler]

My Lords, I intervene briefly. I listened carefully to what the noble Lord said, but I am not sure that this is just a matter of practice, as he said at the beginning—although by the end he was coming very firmly round to the view that he was an all-out opponent of the legislation itself. I think that there are questions of principle here as well, and not just the principles that he enunciated.

I am not a member of the “keep everything secret” brigade—rather the opposite. If we had taken more notice of the Information Commissioner’s report in 2006 on the unlawful trade in professional information, we might not have had to wait until 2012 for the inquiry into phone hacking, and the rest. I also argued against the 30-year rule for the disclosure of Cabinet papers as wrong and unnecessary and remain critical of the previous Government’s response to that, which was to reduce it to 20 rather than 15 years, as recommended. I think that had more to do with disclosure on Iraq than it did a matter of principle.

I also believe that when it comes to the publication of risk registers, other issues need to be taken into account, not least the relationship between Ministers and civil servants. I suggest that this is why no Government in the past has agreed to a policy of publication. In my view, Ministers are responsible for the decisions taken, and it is for civil servants to advise. That is their skill and their role, and anyone who has ever put a Bill through Parliament knows well enough that if they are any good, civil servants do not simply sit there saying, “Yes, Minister”. They debate and argue with the Minister and warn of the risks as they see them. It is one of the very good features of the relationship between Ministers and the Civil Service in this country.

The problem with publishing all the risks, from the possible to the highly improbable, is that the relationship itself seems to be brought into some doubt. Civil servants, whether they liked it or not, would be dragged into the debate. We all know exactly what would happen: the risk register would be used to undermine the measure being proposed. The aim would be to show that Ministers were in conflict with their own staff. The opponents of a Bill such as the one before us today could say that not only was the BMA against the Bill—it is not exactly news that the BMA is against any new measure put forward since 1947—but also, by selective quotation, that the Civil Service itself had profound doubts. Whether one liked it or not, the Civil Service would be brought into controversy and people would try to portray conflict. I do not see, frankly, how that is in the public interest.

The party opposite has not shown any interest or inclination in the past to go down this road as a general policy line. This would simply place new obstacles in the way of legislation and change. I wonder how a risk register could have been used at the inception of the health service in the 1940s. Doubtless it would have pointed to the problems implicit in such a massive reorganisation and to the risks that costs could escalate. Not every civil servant would have shared ministerial confidence that a better health service would mean improved health and therefore a reduction in costs.

It comes down to the fact that in these cases there is a matter of judgment on the part of Ministers, having listened to the arguments and the advice of the Civil Service, in putting their proposals before Parliament. I entirely understand the later amendment of the noble Baroness, Lady Thornton, which seeks to deny a Third Reading to this Bill. That is perfectly straightforward: she sets out the reasons for it. I do not happen to agree with her, as she knows, but I do not have any doubt about her right to do this. Frankly, however, I cannot see the value of this amendment seeking delay on grounds that I do not believe to be in the public interest.

[Lord Mackay of Clashfern]

My Lords, since Second Reading in this Chamber, this House has carried out a very thorough public scrutiny of this Bill. In doing so, it has had the advantage of the expertise of practitioners and former practitioners with great experience from across the medical, surgical, nursing and social work professions, and also those with experience of administration of those services. Further, it has had the advantage of former health service Ministers and of the skilled, eloquent probing of the Bill’s provisions by the opposition Front Bench: the noble Baroness, Lady Thornton, the noble Lords, Lord Hunt of Kings Heath and Lord Beecham, and the noble Baroness, Baroness Wheeler. We have also had the expertise of the noble Lord, Lord Owen, himself not only a former Health Minister and writer on health matters, but also a director of a large American pharmaceutical company for quite a number of years. In addition, as the Bill has proceeded, we have received detailed briefing from many people currently working in the health and social work services.

The scrutiny was completed last week. In that situation, we would grossly underestimate the breadth and depth of that scrutiny if we accepted that a register, prepared 15 months ago by civil servants in the privacy of the Department of Health before the Bill was introduced and before the very large number of amendments were made to it, could add substantially to our understanding of the Bill. Therefore, in my submission, at this stage this amendment to the Motion is inappropriate. At the very best, it refers only to the tribunal’s decision; it does not refer, except indirectly, to the register. In my submission to your Lordships, the register prepared so long ago in privacy by civil servants cannot be expected to add substantially to what we know already.

[Baroness Jay of Paddington]

My Lords, as the House knows, I chair your Lordships’ Constitution Committee, which has produced two reports on the Bill. As everyone has said, the Bill is enormously complicated and very detailed, and we have been very detailed in our consideration of it.

I support the amendment of the noble Lord, Lord Owen, because the noble Earl the Minister has, as we all know—and we have all paid due respect to him on this—been enormously helpful to the House’s consideration and the production of amendments. The Constitution Committee itself produced very important amendments on the Secretary of State’s role on this. All this has demonstrated the very sound, elaborate and good processes by which this House and its Select Committees, as well as the many experts, as the noble and learned Lord, Lord Mackay of Clashfern, has just mentioned, have contributed to the debate. We have proceeded on this in an extremely sensible, measured and considered way.

The Government have been very generous and the Minister has been particularly generous in accepting amendments and entering into discussion. Having listened to the noble Lord, Lord Owen, I think he is saying that the House should continue to follow the very good process that we have had in formulating our opinions on the Bill. We have taken time and have deliberated very carefully. The House has listened to many views, including those of its Select Committees and of its many expert Members. As the noble Lord, Lord Owen, said, we have also listened to many people outside.

Over the weekend, I have been particularly amazed at the last-minute contributions from, for example, the Royal College of Physicians. The noble Lord, Lord Owen, mentioned one online petition, and I have received another from the organisation Avaaz, signed by 110,000 people. The cumulative figures suggest that in the past few days more than 500,000 people have signed online petitions specifically relating to the amendment of the noble Lord, Lord Owen, not to the more general point.

I say to the House that we have followed the processes very well indeed in relation to this Bill. We have agreed to disagree on some things, and the Government have accepted amendments where they have accepted the arguments. In following the processes, which this House has created very successfully over the years, we have used our best efforts with regard to the Bill, and we can lose nothing by continuing to follow those processes and, finally, by taking note of the tribunal’s report, as the noble Lord, Lord Owen, has suggested.