Lord Warner
Main Page: Lord Warner (Crossbench - Life peer)
Lord Warner
“NHS responsibilities
(1) The Secretary of State may transfer to a combined authority any NHS responsibilities provided for in the Health and Social Care Act 2012 if he considers—
(a) that it is in the best interests of the authority’s population in terms of health outcomes; and(b) that it will help fulfil his duty in section 2 of the 2012 Act (the Secretary of State’s duty as to improvement in quality of services) to improve the quality of health services.(2) In making a transfer of responsibilities to a combined authority under subsection (1), the Secretary of State shall request that a memorandum of understanding between NHS England and the combined authority be agreed.
(3) The memorandum of understanding shall—
(a) be consistent with the duties and powers of the combined authority under the 2012 Act, and(b) last for a minimum of 5 years, unless the combined authority fails to discharge its responsibilities under the memorandum, including its mandate from the Secretary of State.(4) Any memorandum under subsection (2) shall have regard to the Secretary of State’s duty under section 5 of the 2012 Act (the Secretary of State’s duty as to promoting autonomy) by—
(a) promoting autonomy and avoiding placing unnecessary burdens on the combined authority, and(b) specifying the key health outcomes to be achieved by the combined authority.(5) The requirements in the memorandum shall be set out in regulations by the Secretary of State.
(6) A combined authority assuming NHS responsibilities under the provisions of this section shall publish an annual report on how it has discharged its responsibilities on the basis set out in the memorandum of understanding.”
Lord Warner (Lab)
My Lords, we return to the issue that we discussed last Wednesday, namely the ability of combined authorities to assume NHS responsibilities under this Bill. Several things emerged in our last discussion. The first was that the Government currently have no intention of making any clear provisions in the Bill for combined authorities to assume NHS responsibilities. Instead, they wish to proceed on the basis that a combined authority could negotiate a deal with NHS England that would be enshrined in a memorandum of understanding covering a number of years. However, the Secretary of State would retain all his powers in the Health and Social Care Act 2012 to overrule actions by the combined authority in accordance with the memorandum of understanding, if he disagreed with those actions. No matter how much agreement there was between local bodies such as clinical commissioning groups, health and well-being boards and a combined authority, it would still be the Secretary of State’s view that prevailed. The Minister made it clear when I taxed her on the issue of local bodies replacing acute hospital beds with more preventive and community-based services that that was the position. I have reread Hansard to make sure I did not misunderstand her and I did not.
Baroness Williams of Trafford
My Lords, we have talked about the Secretary of State’s ability to intervene, which in itself is also a check and a balance. The orders will be debated through both Houses of Parliament. I will make some progress on this, and if the noble Lord wants to intervene further, he is very welcome to.
For the debates it will be important that full details of the deal concerned, how it was arrived at and the outcomes expected of it will be fully available to Parliament. As I said in the earlier short debate, I am ready to consider whether the standard Explanatory Memorandums are sufficient to ensure that Parliament has all the information it needs in this unprecedented process of devolution. As to a requirement for a combined authority to publish an annual report on its deal in relation to health, there will be a process, as I said in one of our debates last week, for evaluating the progress on each deal agreed with each area. For example, the Greater Manchester deal has an extensive programme of evaluation, with evaluations being public documents available to all with an interest in the area and the progress being made. I do not believe that it is appropriate to make a requirement about the reporting or evaluation of some particular aspect of a deal—an aspect which may not be in all the deals that are agreed.
I turn to some specific points that noble Lords have made. The noble Lord, Lord Warner, talked about the Secretary of State for Health overturning decisions if he did not like them. It is a bit more than that. I think he could intervene if he thought that decisions would be detrimental to people’s health or well-being. That was the point I was hoping to convey, but perhaps I did not do it articulately enough.
Lord Warner
I am being totally confused by the Minister. If she is saying that the detail of a deal is enshrined in regulations, the Secretary of State has signed off that deal. That implies that if there are any controversial issues around in, say, Greater Manchester, they will be dealt with in the orders that come before both Houses of Parliament and which he will have signed off. If he has signed off those orders and they have covered the transfer of resources, for example, from hospitals to preventative services, why should he need to intervene on such a transfer from a hospital to these other services? The Secretary of State seems to want to have it every which way: you agree the deal, you put it in an order and you still reserve the right to veto things on a subsequent level. That is what the Minister seems to be saying.
Baroness Williams of Trafford
My Lords, it is what I am saying but I am also saying that the detail of the deal, which noble Lords have requested full sight of, will go through both Houses of Parliament. It is important that the Secretary of State, of whichever department, can intervene in any matter which he feels is to the detriment of the public. That is what I am saying but maybe we mean different things by “intervene”.
Lord Warner
My Lords, this really goes to the heart of this matter. The Secretary of State under my amendment would have to assure himself that having a deal in the first place was for the benefit of the population of the combined authority. He is actually guided in that—also by the 2012 Act—so he cannot agree a deal that is likely to adversely affect that population. He would be in breach of his own duties and responsibilities. If he has then agreed a deal that is not abrogating NICE responsibilities or access standards or anything else, but is merely shifting the balance of resource provision and service provision between one set of services currently and another set of services that better meet that population’s need—which is indeed what the Five Year Forward View says should be done—and he signed that all off in an order, why does he need a power to intervene again during the duration of that order because he thinks something is wrong? He has agreed what they are going to do.
Baroness Williams of Trafford
Perhaps I have not articulated this—in fact, I wonder if the noble Lord and I are talking at cross-purposes. I am not talking about the Secretary of State intervening in the process of the deal and of the order going through both Houses; I am talking about subsequently, if matters went awry in a particular area. However, that would be the obligation of the Secretary of State whether it was for local government or health or whatever area we will be talking about. Perhaps we can leave that there and return to it in due course.
The noble Lord, Lord Warner, also made the point that it will always be the Secretary of State’s view that prevails. The noble Lord suggests that however great the local consensus might be, the Secretary of State has the power to override this. This argument lacks the essential element, which is how the Secretary of State will exercise his powers. These powers will be exercised reasonably, having regard to all relevant considerations, including local views and the NHS’s own plans in the forward view. In terms of service reconfiguration, the Government have pledged that all service changes should be led by clinicians and patients and not be driven from the top down. The Government have outlined strengthened criteria that decisions on NHS service changes are expected to meet. The criteria are: support from GP commissioners; clarity about clinical evidence bases underpinning proposals; arrangements for public and patient engagement, including local authorities being further strengthened; and the need to develop and support patient choice.
The MoU between the NHS England and Greater Manchester makes it clear that plans for devolution will align and support the objectives set out in the Five Year Forward View. The forward view sets out the NHS’s own plan for the next five years, supporting local areas to take forward plans for transformation, including an increased focus on prevention and integration of services. On the aspect of the 2012 Act that noble Lords have asked about, we have been very clear that existing NHS standards and accountabilities will be upheld. The NHS Act 2006 as amended by the 2012 Act sets out clear duties held by the Secretary of State in relation to the health service. For example, the 2006 Act puts a duty on the Secretary of State to,
“have regard to improvement in quality and reducing inequalities”,
and the duty is exercised in a way that supports local areas. He and other noble Lords asked about the compatibility between the 2012 Act and what has been proposed here. I can confirm that they are compatible with each other.
The noble Lord, Lord Hunt, asked who actually takes the decisions in Greater Manchester. The memorandum of understanding between NHS England and Greater Manchester provides that decisions are to be taken by the partnership between the local authorities and the health bodies—in other words, the Greater Manchester joint commissioning board as a board would operate. This reflects the principle that decisions are devolved to the most local level that is most effective and beneficial for patients and communities.
Baroness Williams of Trafford
My Lords, I can confirm that the accountable body is the partnership board.
Lord Warner
We are going nowhere, my Lords. Let us have another go. Let us follow up the issue of the closure of 50 beds in a Manchester hospital because the money is going to be used for preventive services and more services in the community. The partnership board has agreed that, and the consultants in the hospital affected take umbrage at that. They wind the public up—this is a well-tried and tested form of action in the NHS—get some money from a pro-bono lawyer and, under the provision of the noble Lord, Lord Hunt, they sue somebody. The Secretary of State has signed off the partnership board’s deal. Are they going to sue the partnership board? Are they going to sue the chairman of the trust affected for letting his 50 beds go? Are they going to sue the Health Secretary? Or are they going to sue the chairman of NHS England for agreeing this deal? I think we need to know who. This is not an implausible case I am giving; it is everyday bread-and-butter stuff in our British NHS.
Baroness Williams of Trafford
My Lords, as I understand it, it is the partnership board. I cannot add any more to this. As I understand it, the accountable body is the partnership board.
Baroness Williams of Trafford
I thank the noble Lord very much indeed for that intervention.
Finally, the noble Lord, Lord Hunt, asked me to define “public authority”. It is any authority in the public sector, including all public bodies and NHS bodies, Ministers of the Crown and government departments. New subsection (4) in Clause 6 provides that, in the case of the Bill, it,
“does not include a county council or district council”.
With that, I ask the noble Lord to withdraw his amendment.
Lord Warner
My temptation is to say, “You must be joking”. This has been a very interesting and illustrative debate. I do not think that many people, not just on the Labour Benches but on this side of the House, have found illuminating some of the answers to the questions that we asked. I want to make a helpful suggestion to the Minister. I strongly suggest that she facilitates a meeting between some of us with herself and Health Ministers—and possibly even NHS England—to explore this issue as quickly as possible. We are in danger of creating total confusion, not just among ourselves but among people in the outside world and in the NHS, who will read these debates and be thoroughly confused as to what is going to happen to them in the coming years. I suggest that we have a meeting and, on that basis, I beg leave to withdraw my amendment.