Cities and Local Government Devolution Bill [HL]

Lord Prior of Brampton Excerpts

Tuesday 12th January 2016 Lords Chamber

51: After Clause 19, insert the following new Clause—
“Amendments of the National Health Service Act 2006 Schedule (Amendments of the National Health Service Act 2006) contains amendments of the National Health Service Act 2006 in connection with the exercise of health service functions of combined or local authorities and the control of information about local authority social care.”

[Lord Prior of Brampton (Con)]

My Lords, I beg to move that the House do agree the Motion on Commons Amendments 45 to 51. I shall speak also to other amendments in the group, including the clause inserted in the Bill following Clause 19 by Amendments 51 and 74.

Your Lordships will remember our debates on the issue of safeguards for the devolution of NHS functions, culminating in the insertion of the amendment from the noble Lord, Lord Warner, at Third Reading, against the Government’s wishes. We have now accepted this amendment and have worked to provide even further assurances. I am grateful to the noble Lord, Lord Warner, for his ongoing co-operation and for his support for the further amendments as introduced in Committee in the other place. These amendments provide further clarity about the role of the Secretary of State for Health and what may and may not be included in any future transfer order giving local organisations devolved responsibility for health services.

The clause as amended also includes clear provision to exclude from the scope of transfers the oversight role of NHS England in relation to CCGs, and makes it clear that local devolution settlements do not change the responsibilities of our NHS regulators or their functions in protecting the interests and safety of patients.

The provision of the noble Lord, Lord Warner, as amended, protects the integrity of the National Health Service and makes it clear that, whatever devolution arrangements might be agreed with a particular area, the Secretary of State’s core duties in relation to the health service will not be altered. These clear statements in legislation, making provision for the protection of the integrity of the National Health Service, are intended to provide further confidence in future devolution deals. The amendments to the clause give further definition and clarity to support the valuable principles behind the amendment of the noble Lord, Lord Warner, and I commend them to the House.

Places such as Greater Manchester and London are calling for the ability to design and deliver better health and care services and the ability to make decisions at a level that works best for their communities, either locally or, where it makes more sense, at a regional or sub-regional level.

As we know, devolution deals must be tailored to the particular needs and circumstances of a local area. The Bill already allows government to devolve a range of powers and functions currently carried out by Whitehall departments or bodies such as NHS England to a combined authority or a local authority. In seeking to introduce Schedule 3A, which amends the NHS Act 2006, we are now taking the opportunity to make available further options in health legislation for combined authorities and local authorities to work together with clinical commissioning groups and NHS England across a wider area, such as Greater Manchester, to improve integration of services.

Crucially, wherever a responsibility for NHS functions is delegated or shared in this way, accountability would remain with the original function holder, whether that is NHS England or a clinical commissioning group. The original function holder would continue to be accountable via the existing mechanisms for oversight which ultimately go up to the Secretary of State. In respect of the arrangements which may be made for the exercise of the Secretary of State’s public health functions, each partner is liable for its own actions and, as with the rest of the health service—both public health and NHS elements—the Secretary of State remains accountable to Parliament.

We are seeking to introduce Amendment 45 to provide that the requirements for local authority consent do not apply to regulations revoking previous transfers of health service functions. Noble Lords will be aware also that Amendment 22, to which the noble Baroness, Lady Williams, has spoken, includes a similar provision whereby consent from a combined authority and local authorities is not needed where an order solely revokes a transfer of public authority health functions.

These amendments mean that, in the event that it becomes appropriate to restore NHS functions in a local area to NHS bodies, this can be achieved without the need for the consent of the combined authority and local authorities concerned. This reflects the fundamental principle for health devolution in Clause 19—that the Secretary of State for Health’s key responsibilities for the NHS will remain unchanged in any devolution arrangements. We would envisage using the powers to revoke only in circumstances where it was clear that duties and standards such as those referenced in Clause 19 were not being met, and that revoking the transfer was the best option to achieve the necessary improvement in performance. I beg to move.

[Lord Warner (Non-Afl)]

My Lords, I shall speak in a friendly way towards the Minister on his amendments to the amendment that the House was good enough to pass at Third Reading. I cannot guarantee to be quite as friendly towards the Minister on all matters relating to the NHS and social care in future. I suspect that we shall have a good canter around that course on Thursday.

What it shows is that this House has an important scrutiny function to perform. I know that we gave the Minister a pretty hard time on this issue, but the Government rather deserved it. I think that it was very foolish for the Government to bring the Bill to this House with the devolution of NHS functions in it without clarity about how that would work in relation to existing NHS legislation, particularly the 2006 and 2012 Acts. I am glad that the Government have seen the error of their ways and I am extremely grateful to the Minister and his colleague, Alistair Burt, for the considerate way in which they discussed with me this set of amendments.

I am happy to commend them to the House because they meet the concerns that were expressed at an earlier stage, and I accept the points made by the Minister about the need, very occasionally, to revoke some of these changes. I do not accept the advice from the BMA in its guidance that there should be more safeguards. Given the nature of NHS legislation in this country, it is inevitable that where the Secretary of State sees real damage being done in a local area, he has to step in and make some changes. It is almost inevitable that on the odd occasion that will be necessary, so I am quite happy to support the change proposed by the Minister.

This shows the House in a good state in its ability to exercise its scrutiny functions—and, at the time of the Strathclyde report, it does us well to pat ourselves a little bit on the back that we have actually helped the Government improve their legislation.

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[Lord Prior of Brampton]

My Lords, first, I thank the noble Lord, Lord Warner, for his very friendly comments—long may they continue. As he and other noble Lords have mentioned, this is a good example of the scrutiny provided by this House in ensuring that we have, as my noble and learned friend Lord Mackay mentioned, a truly National Health Service, and that this legislation preserves, rather than undermines, the integrity of the National Health Service, with accountability, after devolution, still clearly with the Secretary of State for Health and to Parliament.

The noble Lord, Lord Beecham, asked what will happen in the event that things do not work out—I think that was the issue that he raised. The answer is, I think, that it will depend on the negotiations in each individual case. There need to be sensible arrangements from the outset as to what will happen in the event that things do not work out, which the Secretary of State will need to take a view on when agreeing to the deal at the beginning. In a sense, the end game needs to be considered early on in the proceedings. However, I may have missed the point that the noble Lord was making.

[Lord Beecham]

That may be partly my fault. My point was not that things might not work out in, for example, the Greater Manchester context; the problem that I raise is the situation that might arise where a district comes out of a county and into a combined authority for certain purposes and that combined authority decides that it wants to deal with health, but the social services provision, unless there is another change, remains with the county within which that district exists. That seems to me the area that has not yet been resolved; it is certainly not clear in my mind and, looking around, I think that there are others whose minds may also be confused by the situation. It is not an easy question for the Minister to answer, and if he is not able to do so, I will understand, but I think that it is a matter that needs to be addressed between the two departments and, if I may say so, in consultation with the local government world as well as the health world, before we get to the point where the situation becomes one where such a risk develops. It is not the case in Greater Manchester, but it may occur elsewhere if we have that movement by county districts into combined authorities for some purposes.

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[Lord Beecham]

I am sorry to intervene again, but from what my noble friend just said it occurs to me that it is not just social care; one has to think about education and children’s services, where there is also a potential dimension. So far, nobody has mentioned that. That is another department that ought to be involved. Of course, we cannot resolve this today, but I urge that the kind of discussions I have mentioned should take place, and I now add the education department to that.

[Lord Prior of Brampton]

My Lords, life is untidy, unfortunately. It is never clear and you cannot foresee all eventualities. The only response I can give noble Lords today is that the Secretary of State will deal with each matter on a case-by-case basis. I do not think that anyone can lay down a blueprint for dealing with that now, but I am happy to discuss it with the noble Lord and the noble Baroness if they want to do so. Maybe this is not the right place to go into all of that. I hope that that will be acceptable to them.

The noble Lord, Lord Shipley, raised the report on the success of devolution. I think I can speak for the Secretary of State for Health in saying that he would want to involve all relevant stakeholders in that report, not least patients, frankly, for obvious reasons. I am happy to put that on the record.

I conclude by thanking the noble Lord, Lord Smith, for updating us all on what is happening in Manchester. We on both sides of the House wish Greater Manchester well. It is a trailblazer and a very important development. We hope that we will see more devolution across England while still retaining the central accountability and integrity of the National Health Service.

Motion on Amendments 45 to 51 agreed.