Health and Social Care Bill

Lord Harris of Haringey Excerpts

Tuesday 25th October 2011 Lords Chamber

[Lord Hennessy of Nympsfield]

My Lords, at Second Reading, the noble Earl, Lord Howe, indicated that he wished to put the constitutional position and accountability to Parliament of the Secretary of State beyond doubt. In his letter to your Lordships of 20 October, he repeated his commitment, writing that:

“We are willing to listen and to consider the concerns that have been raised, and make any necessary amendment to put it beyond doubt that the Secretary of State remains responsible and accountable for a comprehensive health service, which we all want to see”.

Perhaps the simplest way of achieving this is to sustain the requirements of the National Health Service Act 2006, as the amendment in the name of the noble Baroness, Lady Williams of Crosby, seeks to do.

If successful, this amendment would certainly extend the legislative DNA captured in the pioneering National Health Service Act 1946. However, it can be argued—as it has been by the noble and learned Lord, Lord Mackay of Clashfern, the noble Lord, Lord Warner, and others—that the reality of the Secretary of State’s position since the late 1980s requires a reworking of the accountability of the Secretary of State that reflects the fact that successive incumbents have not been direct providers of services for over 20 years. For that reason, a differently crafted amendment, such as the one in the name of the noble and learned Lord, Lord Mackay of Clashfern, would be more fitting.

As the Minister has said, the test is the need for this Bill to be unambiguous in capturing the Secretary of State’s core constitutional position and accountabilities at the very apex of the NHS, where policy, administration and money meet. I have great sympathy with the impulses behind the amendment tabled by the noble Baroness, Lady Williams, but I also think that subsections (2)(a) and (2)(b) of the amendment tabled by the noble and learned Lord, Lord Mackay of Clashfern, make the Secretary of State’s accountabilities unambiguous. Therefore, I profoundly hope that the Minister will be able to accept the amendment tabled by the noble and learned Lord, Lord Mackay of Clashfern, as Parliament’s instrument for genuinely putting the matter beyond doubt.

[Lord Harris of Haringey]

My Lords, I apologise to the House because at Second Reading I inadvertently failed to declare an interest, as I have now been reminded by the Mirror, that I am an adviser to KPMG. I regret that it had slipped my mind as I have never advised it on anything to do with health or any of its global interests that include advising on health matters. I apologise to the House and I hope I have now corrected the omission.

I rise to speak to the amendment in the name of the noble Baroness, Lady Williams of Crosby, because this is an issue that requires greater clarity, and the debate and discussion that has already taken place in Committee this evening demonstrates why that is so. As my noble friend Lord Warner has reminded us, Professor Malcolm Grant, the newly appointed chair of the national NHS Commissioning Board, has made clear what appears to be the Government’s intention with regard to the role of the Secretary of State. I assume that he did so under advice, because you do not take on a role like the chair of the NHS Commissioning Board without extensive discussions with Ministers and civil servants. He must have been briefed on the matter and quite clearly the intention is to separate out the day-to-day responsibility and answerability of the Secretary of State. There has to be some clarity on this point.

The noble Lord, Lord Newton, has pointed out that the Secretary of State de facto will be held to account by Parliament because this is about the way in which a budget of £120 billion is spent and disposed of. However, the reason we need—and the public will expect—clarity is that if the Secretary of State’s role is simply to account to Parliament that a sum of money has been passed to the NHS Commissioning Board, that will not be sufficient in holding the Secretary of State to account as to whether that sum of money is the appropriate sum and what the consequences are of not making available appropriate sums of money. That is why I suspect it becomes important.

The noble Lord, Lord Hennessy, has suggested that perhaps the form of words that the noble Baroness has used needs refreshing, because they hark back to the Bill 60 years ago. He suggests that the amendment of the noble and learned Lord, Lord Mackay of Clashfern, may be better suited to the purpose. However, I have some reservations about the wording used by the noble and learned Lord, Lord Mackay, in that he talks about ultimate responsibility. We may have an inkling about what ultimate responsibility means, but I wonder where else in legislation a phrase such as this is used. I defer of course to the noble and learned Lord’s far superior knowledge of the law. However, in my limited experience in this House, I have never before come across the words “holds ultimate responsibility to Parliament”. It seems a very strange usage and I think that there needs to be greater clarity and understanding about what it means. That is why it might be better to revert to the wording chosen by the noble Baroness, Lady Williams. It is tried and tested and at least we understand it.

We also have to recognise that the noble and learned Lord’s amendments helpfully set out the intervention powers and the circumstances in which they will be part of the Secretary of State’s duties, which is all very well. However, intervention powers, by their very nature, occur after the event. Something has already gone wrong.

In our earlier debate—I hesitate to hark back to it—about the role of Health Education England, the Minister told us that the Secretary of State would continuously hold Health Education England to account. However, that is different from having responsibility. Again, we need to be clear on who is answering for that. How will that be done? The fact that the Minister had to stand up and tell us that there are intervention powers, but that of course on a day-to-day basis he would be holding Health Education England to account, suggests that the current form of words in the Bill is simply not accurate.

The final test that your Lordships need to consider is: what do the public expect? The public’s expectation is that government is responsible for what happens in our health service; and unless there are locally elected officials who are responsible for what happens at a local level, they will expect their elected Government to be responsible, and that means the Secretary of State.

[Lord Owen]

My Lords, this has been a fascinating debate and it has certainly taken the arguments further. I do not think that anybody expects that we will vote tonight, and I think that we will come back to this at Report.

There are merits in both of the cases put forward. In some respects—we can argue about the word “ultimate”—the idea of responsibility to Parliament has merit. It also tallies with the expression used by the noble Lord, Lord Newton. When people realise what the chairman of this largest quango thinks he will do, there will be uproar. Unfortunately, we have not yet been able to read those things—we know about them through reports, but we have not yet read them. It is very clear that the chairman-designate takes the view that he is given the money, he is given the mandate—a three-year mandate which is of course subject to change—and he then decides. It is pretty clear that some people think that that is a very good idea. I think that the noble Lord, Lord Warner, is pretty close to that position.

--- Later in debate ---

[Baroness Cumberlege]

My Lords, this is the first time that I have entered this Committee debate, so I declare an interest as the executive director of Cumberlege Connections, which is a training company.

I am very grateful to the noble Lord, Lord Owen, for mentioning micromanagement, because a lot of our debate stretches beyond just the accountability of the Secretary of State to the organisations that are going to be set up that will have devolved powers. I can understand some of the concern felt about financial probity and the money that is going to the National Health Service, £80 billion of which will go to the NHS Commissioning Board. I shall try to provide a little comfort to the noble Baroness, Lady Williams, and the noble Lord, Lord Harris, who seemed to imply that this money was going to be shelled out by the Secretary of State and he was then going to disappear, leaving no accountability. However, paragraph 14(1) of Schedule 1 states:

“The Secretary of State may require the Board to provide the Secretary of State with such information as the Secretary of State considers it necessary to have for the purposes of the functions of the Secretary of State in relation to the health service”.

Paragraph 14(2) states:

“The information must be provided in such form, and at such time or within such period, as the Secretary of State may require”.

There is clearly an opportunity here for intervention and for the Secretary of State to make sure that probity is being exercised.

[Lord Harris of Haringey]

But surely that simply states that there shall be a requirement to provide information. It does not then give the Secretary of State a power to intervene. All it means is that one has an informed Secretary of State, which is tremendously helpful, but not a Secretary of State who is able to say, “Well, this is clearly not in the public interest in terms of the way that these moneys have been disbursed”.

[Baroness Cumberlege]

That is true up to a point, but can you imagine, when the Secretary of State receives that information, that he will do nothing about it? That would be extremely unlikely.

The other thing I would like to say is about the comments of the noble Lord, Lord Hennessy, on ambiguity and clarity. It seems quite strange to put a word into this Bill that is archaic and no longer used. It no longer serves a purpose, in that what is being done at the moment does not relate to the Secretary of State providing anything. If we are going to be really clear about legislation, surely we want to make sure that the words used are relevant to today. Including the word provide, which is no longer being used—the Secretary of State has powers to provide, but he does not actually provide services—seems a pretty irrelevant and an archaic way of producing legislation. I very strongly support the noble and learned Lord, Lord Mackay of Clashfern.