Health and Social Care (Re-committed) Bill

Debate between Steve McCabe and Owen Smith

Wednesday 7th September 2011 Commons Chamber

[Owen Smith]

As I said earlier, or rather as somebody said on my behalf, I am not a lawyer—I am a historian. As a historian, I agree with the hon. Gentleman that the 1946 Act does indeed say:

“provide or secure the effective provision of services”.

He was entirely right in that, and I could not understand the response from the Minister.

The key thing is that eight months, two Bills and 1,500 amendments later, we are still debating clause 1 and its legal interpretation. That is testament to just how badly botched this Bill has been and just how alarming it is for many people—patients and NHS staff—that we, the legislature, do not understand, or have divided views about, our understanding of the critical responsibility of the Secretary of State.

[Steve McCabe]

Before my hon. Friend moves on to the next section of his speech, perhaps I can return to the question of a mandate. Given that this is such a botched Bill, given what he says about the tone of the proceedings, given that at this stage nobody seems to understand exactly what are the implications of some of the Government’s claims, given the fact that the Government are not willing to entertain people’s legitimate concerns, and given that there is no mandate in either Government party’s manifesto for this Bill, the other place is presumably not bound by the Salisbury convention, and if the Government will not entertain those concerns here, it will be the duty of the other place to address them.

[Owen Smith]

It will. I have no doubt that the very many lawyers in the other place will have a field day in addressing these issues—just as, we fear, lawyers the length and breadth of this land will have a field day, not only during the passage of the Bill but for many years to come. That is because so many things will be contested, not only relating to the issues we are debating but, far more importantly, in relation to competition, which we debated yesterday, where it is undoubtedly the case that decisions that have hitherto been made to provide services from within the family of the NHS will be challenged by carpetbaggers—profit seekers—from outwith the NHS. Under the future provisions, those issues will need to be tested in the courts. The Government have conceded that on several occasions, and I am sure that they would do so today if they were asked.

Finally on the issue of the Secretary of State, and once again to hammer home the point that this is not just Labour scaremongering and that lawyers will be involved at every step of the way, I draw Members’ attention to the independent legal opinion that was provided by Stephen Cragg QC. Paragraph 1 of the executive summary states:

“It is clear that the drafters of the Health and Social Care Bill intend that the functions of the Secretary of State in relation to the NHS in England are to be greatly curtailed.”

It goes on:

“Effectively, the duty to provide a national health service would be lost if the Bill becomes law. It would be replaced by a duty on an unknown number of commissioning consortia with only a duty to make or arrange provision for that section of the population for which it is responsible.”

It states that the Bill is

“fragmenting a service that currently has the advantage of national oversight and control, and which is politically accountable via the ballot box to the electorate.”

That was the view of an independent QC on reading the Bill. It is a view that I and the Opposition share. I suggest that Ministers read it very carefully and do not dismiss it, as they have done today, as an inaccurate reading of the Bill.