Health and Social Care Bill

Lord Marks of Henley-on-Thames Excerpts

Wednesday 29th February 2012 Lords Chamber

Moved by

[Lord Marks of Henley-on-Thames]

71: Clause 22, page 24, line 27, at end insert—
“( ) For the purposes of this section a failure to discharge a function properly includes a failure to discharge it consistently with what the Secretary of State considers to be the interests of the health service.”

[Lord Marks of Henley-on-Thames]

My Lords, all the amendments in this group have a single theme, although Amendments 294 and 295, to which I shall turn later, are in a slightly different category from the rest, and except for those two amendments all these amendments are supported by my noble friend the Minister. These amendments are intended to put in place a robust failure regime to permit the Secretary of State, or the board where it is the intervening body, to intervene in the operations of bodies within the NHS in the event of a significant failure by such bodies properly to exercise their functions. The purpose of the amendments is to ensure that it is for the Secretary of State to decide whether a body is failing or has failed to discharge its functions in a way that he considers is consistent with the interests of the health service. If he so decides, his intervention powers will be triggered and an intervention will be justified.

However, there is a proviso. The failure must be significant so that the Secretary of State cannot intervene in the case of an insignificant failure, but in practice he will be the judge of significance. Although strictly speaking his view of the significance of a failure could be challenged, in my view such a challenge would be hard to maintain in normal circumstances. I would add that in cases in which it is for the board to intervene in the functions of a clinical commissioning group, it is correspondingly the view of the board that will count.

Without wishing to go into detail about these amendments, perhaps I may canter quickly through the intervention powers with which they are concerned. Amendment 71 is the Secretary of State’s power under new Section 13Z1 of the 2006 Act to intervene in the event of failure by the board. The Secretary of State may then step in to give a direction to the board as to the discharge of its functions, and if the board fails to comply with such a direction he may step in and exercise them himself or delegate them to another. Amendment 113 is concerned with the power of the board to require information and documents from clinical commissioning groups or to require an explanation from clinical commissioning groups under new Sections 14Z15 and 14Z16 in the event of failure by those groups to discharge their functions. Amendment 114 concerns the board’s very wide powers of intervention to give directions to clinical commissioning groups, to change their accountable officer, to vary their constitution, to dissolve a group or to take over its functions if a direction is not complied with.

Amendment 176 concerns the Secretary of State’s power under Clause 69 to intervene by giving directions to perform functions or to perform them in a specified manner in the event of a failure by Monitor. Amendment 258 concerns the Secretary of State’s power under Clause 244 to intervene by giving similar directions in the event of failure by NICE. Amendment 291 concerns his power under Clause 268 to intervene by giving similar directions in the event of failure by the Information Centre, and Amendment 296 concerns his power, amended by Clause 290, to intervene by giving directions in the event of failure by the Care Quality Commission under Section 82 of the Health and Social Care Act 2008.

When debating and then discussing the Secretary of State’s role and overarching duties under Clause 1, coupled with his duty to promote autonomy under Clause 4, your Lordships will remember how quickly it became clear that the new structure brought with it a considerable difficulty. Gone will be the Secretary of State’s direct duty to provide. In its place, the provision of services will now be the responsibility of clinical commissioning groups under Clause 12. It follows that the new substitute duty on the Secretary of State could be a duty to exercise his functions only so as to ensure that services are provided in accordance with the Act.

To achieve that in a way that was consistent with the Secretary of State retaining ministerial responsibility effectively for the health service, it was essential to ensure that the functions accorded to him by the legislation were up to the task, and that really is the point of these amendments. It means that the Secretary of State has to be given effective powers to intervene. Such powers to intervene would not be effective if he could intervene only in the event of a body’s failure to discharge its functions altogether. A power to intervene in the event of a failure to discharge them “properly” would not be up to the task either if it was going to be open to the body concerned to argue that it was discharging its functions properly whatever the Secretary of State might think, even if he took a contrary view.

Such a body might then have been able to say to the Secretary of State, “You may disagree with the way we choose to exercise our functions, but we disagree and it is up to us”. The Secretary of State might in those circumstances have been left to return to Parliament with the lame and ineffectual excuse that there was nothing he could do because he could not show clearly that the body was not exercising its functions properly, whatever he thought of its conduct.

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[Lord Hunt of Kings Heath]

My Lords, as this is a government-supported amendment, perhaps I may seek clarification from the noble Lord. In the past three months the Secretary of State has intervened in the health service any number of times: for example, on issues arising from primary care trusts massaging figures on waiting times and on the way in which A&E departments work. If an issue was raised in Parliament, would the Secretary of State be able to intervene without any question or worry about whether it meets the terms for failure set out in the amendment? It is important to clear that up.

[Lord Marks of Henley-on-Thames]

It is indeed important to clear that up, and the answer is yes. If the Secretary of State considers that the body with which he proposes to intervene is acting in a way that is not consistent with the interests of the health service, then, for the purpose of these amendments, it is not acting properly and the Secretary of State’s powers of intervention are triggered. That was the point of our amendment in Committee and it is the point of these amendments, which have now been accepted, as the noble Lord points out, by the Government. So the answer to his question is indeed yes.

A similar test applies in the case of the board’s powers to intervene in the conduct of clinical commissioning groups, where a parallel test is applied. It is, then, the board’s view of the interests of the health service that counts, just as, where it is for the Secretary of State to intervene, it is his view that counts.

As my answer to the noble Lord’s intervention makes clear, the amendment puts the Secretary of State right back in the driving seat. He has of course to have regard to autonomy, and a failure has to be sufficiently significant for him to take the view that an intervention is warranted, but, subject to those two points, if he takes that view, he may intervene in the ways prescribed by the Bill, and his ministerial responsibility and his answerability to Parliament are assured.

I am grateful to my noble friend the Minister for his support and to those in his department who have helped with these amendments. I am grateful also to all those who spoke in Committee on the intervention and failure regime and who took part in the quite involved discussions about it that we had privately. By going carefully through the Bill to pick up all the relevant powers of intervention, and by then applying a consistent trigger within the control of the Secretary of State, we have developed a coherent and effective way of ensuring that the failure regime is workable.

Amendments 294 and 295, in my name and the names of my noble friends Lady Tyler and Lady Barker and the noble Baroness, Lady Murphy, are designed to rectify a small but not insignificant failure in the arrangements in the Bill as it stands. Clause 287 deals with the consequences of a failure to co-operate, a duty imposed by the Bill on Monitor, the Care Quality Commission, the board, NICE, the NHS Information Centre and strategic health authorities. If the Secretary of State is of the opinion that there is a breach, or the risk of a breach, of one of the specified duties to co-operate, he may under the Bill as it stands give a notice setting out the opinion that it is in breach to each relevant body, and he must publish the notice. If the breach continues and it is detrimental to the performance of the health service, he may then prohibit each body from exercising specified functions until the other body with which it is not co-operating agrees in writing what the first body may do. The Secretary of State’s prohibition may last for a year in the first instance but can be extended year on year. In default of agreement by the bodies concerned there is a long-stop power to go to arbitration.

Quite apart from the utter complexity of these provisions, there is an Alice in Wonderland feel of unreality about them. With all this activity, there is a serious danger that nothing will get done. The power of the Secretary of State arises only in the event that there is a breach of duty to co-operate—and then it is only a power to stop anything being done. The first problem is that the parties can, honestly and in good faith, co-operate with each other so that there is no breach of the duty, but nevertheless fail to reach agreement so that a conflict persists. The trigger for intervention should not be a mere breach of a duty to co-operate but the existence of an actual or potential conflict. That is the point of Amendment 294.

The second problem is that the power should not be simply a power to stop all action but should instead be a power to act in such a way as to resolve the conflict. In respect of the intervention powers that we have already considered with the other amendments in this group, the power has generally been to direct that the body concerned exercises functions or exercises them in a specified manner. Why is that not an appropriate power here? I suggest that it is and that Amendment 295 would give the Secretary of State a power to give such a direction, thus effectively resolving any conflict.

The power in our amendment is an additional power. If a stop order of the kind proposed in the clause at present is considered likely to be effective in resolving a failure to co-operate or an outright conflict, then let that power be exercised. However, there must be some power accorded to the Secretary of State to step in and resolve a stalemate. That power is not currently in the clause and there is a risk that not only the bodies concerned but the health service, patients and the standing of the Secretary of State may suffer in consequence. I beg to move.

[Baroness Murphy]

My Lords, I will very briefly say that I added my name to two of these amendments because I have, in practice, come across occasions when organisations such as the former Monitor and CQC had difficulties in their relationships, which had to be sorted out with some difficulty. It seems that they could be in the very position that the noble Lord, Lord Marks of Henley-on-Thames, has described so eloquently, and that we need some way of resolving these conflicts to the benefit of patients so that decisions are made quickly. I support these amendments.

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Amendment 295 would give the Secretary of State the ability to instruct bodies on how to carry out their functions in cases where they breach their duties to co-operate. That is also unnecessary. The clause allows the Secretary of State to place bodies under an agreement lock whereby they can carry out specified functions only with the agreement of the other body. The point of that is to ensure that bodies in dispute are strongly reminded of their interdependence as part of a national system and are pressed to resolve their differences without the need for ministerial direction. However, the agreement lock is only one of a number of levers open to the Secretary of State to promote co-operation and prevent conflict, as I have already said. My noble friend’s earlier amendments will clarify that the Secretary of State could invoke his intervention powers to direct the bodies in the exercise of their functions if he believes that the bodies are not acting in the interests of the health service. For those reasons, which I hope my noble friend will accept are robust, I cannot support Amendments 294 and 295. I hope that I have persuaded him not to press them.

[Lord Marks of Henley-on-Thames]

My noble friend the Minister has certainly persuaded me not to press those amendments. I never had any intention that they should go to the vote. However, I still express some concern about the point made by the noble Lord, Lord Hunt, as to whether the stop power can actually involve the Secretary of State in having the power to knock heads together in the way that he describes. Of course, I entirely accept that the intervention powers under the other amendments go a great deal of the way to improving the position, but if he would like to give it further thought that would be very helpful.

[Lord Hunt of Kings Heath]

I thought that there was a question to the Minister as to whether he would consider the matter between now and Third Reading. Am I not right?

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Moved by

[Lord Marks of Henley-on-Thames]

113: Clause 25, page 45, leave out lines 24 and 25 and insert—
“( ) For the purposes of this section—
(a) a failure to discharge a function includes a failure to discharge it properly, and(b) a failure to discharge a function properly includes a failure to discharge it consistently with what the Board considers to be the interests of the health service.”

--- Later in debate ---

Moved by

[Lord Marks of Henley-on-Thames]

114: Clause 25, page 47, leave out lines 35 and 36 and insert—
“( ) For the purposes of this section—
(a) a failure to discharge a function includes a failure to discharge it properly, and(b) a failure to discharge a function properly includes a failure to discharge it consistently with what the Board considers to be the interests of the health service.”