Health and Social Care Bill

Baroness Jay of Paddington Excerpts

Monday 19th March 2012 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, since Second Reading in this Chamber, this House has carried out a very thorough public scrutiny of this Bill. In doing so, it has had the advantage of the expertise of practitioners and former practitioners with great experience from across the medical, surgical, nursing and social work professions, and also those with experience of administration of those services. Further, it has had the advantage of former health service Ministers and of the skilled, eloquent probing of the Bill’s provisions by the opposition Front Bench: the noble Baroness, Lady Thornton, the noble Lords, Lord Hunt of Kings Heath and Lord Beecham, and the noble Baroness, Baroness Wheeler. We have also had the expertise of the noble Lord, Lord Owen, himself not only a former Health Minister and writer on health matters, but also a director of a large American pharmaceutical company for quite a number of years. In addition, as the Bill has proceeded, we have received detailed briefing from many people currently working in the health and social work services.

The scrutiny was completed last week. In that situation, we would grossly underestimate the breadth and depth of that scrutiny if we accepted that a register, prepared 15 months ago by civil servants in the privacy of the Department of Health before the Bill was introduced and before the very large number of amendments were made to it, could add substantially to our understanding of the Bill. Therefore, in my submission, at this stage this amendment to the Motion is inappropriate. At the very best, it refers only to the tribunal’s decision; it does not refer, except indirectly, to the register. In my submission to your Lordships, the register prepared so long ago in privacy by civil servants cannot be expected to add substantially to what we know already.

[Baroness Jay of Paddington]

My Lords, as the House knows, I chair your Lordships’ Constitution Committee, which has produced two reports on the Bill. As everyone has said, the Bill is enormously complicated and very detailed, and we have been very detailed in our consideration of it.

I support the amendment of the noble Lord, Lord Owen, because the noble Earl the Minister has, as we all know—and we have all paid due respect to him on this—been enormously helpful to the House’s consideration and the production of amendments. The Constitution Committee itself produced very important amendments on the Secretary of State’s role on this. All this has demonstrated the very sound, elaborate and good processes by which this House and its Select Committees, as well as the many experts, as the noble and learned Lord, Lord Mackay of Clashfern, has just mentioned, have contributed to the debate. We have proceeded on this in an extremely sensible, measured and considered way.

The Government have been very generous and the Minister has been particularly generous in accepting amendments and entering into discussion. Having listened to the noble Lord, Lord Owen, I think he is saying that the House should continue to follow the very good process that we have had in formulating our opinions on the Bill. We have taken time and have deliberated very carefully. The House has listened to many views, including those of its Select Committees and of its many expert Members. As the noble Lord, Lord Owen, said, we have also listened to many people outside.

Over the weekend, I have been particularly amazed at the last-minute contributions from, for example, the Royal College of Physicians. The noble Lord, Lord Owen, mentioned one online petition, and I have received another from the organisation Avaaz, signed by 110,000 people. The cumulative figures suggest that in the past few days more than 500,000 people have signed online petitions specifically relating to the amendment of the noble Lord, Lord Owen, not to the more general point.

I say to the House that we have followed the processes very well indeed in relation to this Bill. We have agreed to disagree on some things, and the Government have accepted amendments where they have accepted the arguments. In following the processes, which this House has created very successfully over the years, we have used our best efforts with regard to the Bill, and we can lose nothing by continuing to follow those processes and, finally, by taking note of the tribunal’s report, as the noble Lord, Lord Owen, has suggested.

[Lord Birt]

My Lords, I rise to underline some of the arguments articulated by the noble Lord, Lord Fowler. A risk register is a key prerequisite of any effective organisation, whether public or private. I have had experience of a variety of registers in both the public and private sectors. When I worked at No. 10, I was a member of the Cabinet Office Strategy Board, and one of the tasks of that board was to consider what was effectively the national risk register.

What is the purpose of a risk register? It is to identify all risks. Every risk register that I have ever looked at has been kept highly confidential because it has always been gory and hair-raising to read. The purpose of identifying worst-case risks is to do your best to prevent them and, if you do not prevent them, you need to work out, in advance, what you will do if bad things happen. To create an effective risk register, you need to—

Health and Social Care Bill

Baroness Jay of Paddington Excerpts

Thursday 8th March 2012 Lords Chamber

[Baroness Northover]

If I wish to continue with the thrust of my argument—as the noble Lord, Lord Warner, said in the previous debate—I can do so. At the moment it is better if I lay out my argument. If there are points of clarification that noble Lords want an answer on, I will be very happy to give way when I have completed my argument.

We welcome and support—

[Baroness Jay of Paddington]

My Lords, I was not present when the noble Baroness had an exchange with the noble Lord, Lord Warner, on this matter. However, I have been in the House for 20 years and it is my widespread experience that of course the Minister is right to say that she must complete her argument. However, she has spoken for some minutes since the first intervention by the noble Lord, Lord Harris, and her argument has been well made.

Health and Social Care Bill

Baroness Jay of Paddington Excerpts

Wednesday 8th February 2012 Lords Chamber

This establishment of responsibilities was something that we were very concerned to see in the Bill. Again, it is a tribute to the House that the procedures we adopted have achieved a structure that is both clear and internally consistent, while being effectively co-ordinated.

[Baroness Jay of Paddington]

My Lords, the House will be aware that the second report of the Constitution Committee on this Bill suggested amendments in this area, precisely for the reasons well outlined by the noble Lord, Lord Marks, and as expressed by the Minister. We were concerned that the way in which the Bill was originally framed would dilute that line of responsibility through the Secretary of State and that the provisions on autonomy were such that that link would be broken, or at least threatened.

I wish to explain briefly why, although the committee produced amendments that are very similar to the ones tabled by the Government and supported by the noble Lord, Lord Marks, I have not put my name to them. That is simply because the wording of the government amendment is not as simple as the one that the Constitution Committee supported and wished to see in the Bill. We suggested:

“Subject to sections 1(1) and 1(3)”,

which we discussed on government Amendment 5,

“and so far as is consistent with the interests of the health service, the Secretary of State must, in exercising functions in relation to that service, have regard to the desirability of securing”,

et cetera. Clearly that is very close to the wording of the amendment tabled by the Government. The Constitution Committee is particularly grateful for the phrase “having regard to”, as the Minister has explained. We were not in a position to discuss the change in formulation that has occurred, and we have yet to listen to my noble friend Lady Thornton, but as there were members of the committee who, like me, would prefer to see this clause deleted, I have not put my name to this amendment although I understand that it is very close to the one that the committee originally suggested.

[Baroness Finlay of Llandaff]

My Lords, I wish to raise some questions because I have put my name to the amendment suggesting that Clause 4 be deleted. The Government’s guidance notes published with the amendment that has been tabled appear to make the duty of autonomy subject to the Secretary of State, but there is ongoing concern that there remains the risk that the clause could be used by clinical commissioning groups to justify not providing a full range of services or putting inappropriate services out to tender. While local organisations should have the freedom to respond appropriately to the health needs of the population, local commissioners should not be able to act totally autonomously and commissioners must have regard to national guidance. In his closing summary, the counsel to the chair in the Francis inquiry pointed out that there is a need for far greater standardisation of operating and quality standards in the NHS and close monitoring of compliance.

Concern about the inclusion of Clause 4 continues to lead to some uncertainty, confusion and concern about how competition would be applied in the new system. Phase 2 of the Future Forum recommended that the Government clarify the rules on choice, competition and integration. The concern is that if the restraint on autonomy is not as tight as it possibly ought to be, services could fragment. The Government need to clarify that integration will trump competition. I ask the Minister to clarify that the national Commissioning Board will be prepared to intervene if clinicians feel that the type of competition that is being proposed could fragment services. We have heard quite a lot about commissioning along whole-care pathways, such as musculoskeletal services and mental health services, and in whole-function areas, such as community services. There is concern that where this has happened in the east of England with musculoskeletal and respiratory pathways, there is a sense that they should have been put out to tender more than they have been. There is concern that there are times when whole-care pathways should not be subject to competition. The difficulty with the clause is that it leaves in doubt how much integrated whole-care pathways, which may not leave complete autonomy to different parts of the system, will trump competition between different parts of the system.

--- Later in debate ---

I hope I have covered the questions that have been asked. I thank noble Lords for their valuable contribution to this debate. Once again, I thank the noble Baroness, Lady Jay, for her good offices in bringing us to this point. I hope that my remarks and the amendments tabled will reassure noble Lords that the interests of the health service are and always will be at the heart of the Bill.

[Baroness Jay of Paddington]

The noble Lord may be surprised to hear me ask this question because, as he kindly said, I have been very determined that the provisions on accountability and parliamentary responsibility et cetera should be strengthened in the Bill. However, I listened to what my noble friend Lord Harris said about what he described as the “increasing tentacles” of these links between the various providers and the Secretary of State. Is the Minister not becoming concerned—as I would in his position—that all this new accountability and these links undermine the basic policy positions of the Bill? That is why, for example, my noble friend Lady Thornton suggested that it would be cleaner—if that is the word—to remove the whole of Clause 4 from the Bill. The complexities that are being set up and strengthened, as the Minister has agreed, make the whole thing so incredibly complicated and bureaucratic that the underlying policy positions are being totally distorted.

[Earl Howe]

I do not share that view at all. I do not think that the autonomy and accountability arrangements are as complex as the noble Baroness seems to suggest. Autonomy and accountability are two sides of the same coin; one confers autonomy in exchange for accountability. That is the model that we have adopted and the one that I would hope that Parliament would wish us to adopt, given that substantial sums of public money will be at the disposal of commissioners throughout the NHS. I therefore do not see that the metaphor of tentacles employed by the noble Lord, Lord Harris, is actually very appropriate. It implies that there is an organisation holding those in the health service in a grip. That will not be the case. The role of the board is to support local commissioners; it is to be there as a resource to promote guidance, supported by the quality standards that we were debating earlier. It is not—I repeat not—a replica of the kind of line management that the NHS has seen to date.

Health and Social Care Bill

Baroness Jay of Paddington Excerpts

Wednesday 8th February 2012 Lords Chamber

[Baroness Jay of Paddington]

The Minister has clarified the difficulty that I was in, partly because of the intervention from the noble Lord, Lord Lester, but also because of what the noble Baroness, Lady Williams, said. As I understand it, all their remarks are posited on the basis that the subsequent amendment, Amendment 5, will be accepted by the House. When they refer to the terms of the Bill, they are referring to the Bill as it now stands and not as it will, I hope, be amended in the conclusion of our next debate.

[Earl Howe]

I am grateful to the noble Baroness, who is of course quite right.

I have been handed a note which says that when I said that there would be no legally enforceable duties on quality improvement, I should have clarified that that would have a follow-on. I should have said, “across the NHS system”.

The noble Baroness, Lady Thornton, referred to potential privilege responses from the Commons. My noble friend the Leader of the House made a Written Statement last Thursday about the financial privilege of the House of Commons in which he drew attention to a paper by the Clerk of the Parliaments, available in the Library. I think that questions about procedure may be best directed to my noble friend, but I shall do my best to assist. The Clerk of the Parliaments makes it clear in his paper that,

“until the Commons asserts its privilege, the Lords is fully entitled to debate and agree to amendments with privilege implications”.

That is what we should do. I would much regret it if the House thought that I was trying to restrict its role of revision. The Marshalled List sets out more than 100 amendments in my name, tabled in response to debate in Committee, and if the House agrees to those amendments I can assure noble Lords that the Government will encourage the other place to accept them.

The essence of the noble Baroness’s question is about privilege reasons for the Commons rejecting amendments proposed by this House, and on that I can say two things. First, any amendment with implications for public expenditure might involve privilege, but that is a matter for the Commons alone. Decisions on financial privilege are for the Speaker of the Commons on advice from the Clerks of that House. If the Commons reject a Lords amendment in which the Speaker has determined that privilege is engaged, the only reason that it can send this House is a privilege reason. There is no discretion.

Secondly, this debate is by its nature premature. I hope that our debate and dialogue will lead to this Bill being sent to the Commons in a form that that House will accept. Until we see how Report unfolds, it is too early to speculate on the reaction from the Commons. One cannot have a reply to a question until the question has been asked.

--- Later in debate ---

[Earl Howe]

My Lords, I beg to move Amendment 5. As noble Lords will be aware, and as I stated during our discussion on the previous group of amendments, a number of concerns were raised in Committee over the clauses relating to the Secretary of State’s accountability for the health service. Since our collective discussion in November to withdraw amendments on this issue, pending a period of discussion and reflection, I have been meeting noble Lords to understand their concerns. Alongside the conversations that I have had with Peers, both individually and in groups, we have held two all-Peers seminars to try to reach consensus on what changes might be made to bring clarity. I am very grateful to all those who invested time and effort in this matter, which I know so many are passionate about.

I would particularly like to thank the noble Baroness, Lady Jay, and her colleagues on the Constitution Committee, who articulated their concerns about ministerial accountability so coherently in their two reports and proposed amendments. I believe, as had been suggested already, that the process that we have gone through has revealed the House of Lords at its best—working together to improve the Bill and achieve common ground. This amendment deals with the overarching accountability of Ministers for the health service, as set out in Clause 1. At this stage, we are taking this amendment on its own, but there are further amendments on related themes to follow. We should perhaps look at this amendment in that context.

However, I think I am right in saying that Clause 1 has attracted the most attention from Peers, and quite rightly so. It gives the Secretary of State a duty to,

“continue the promotion in England of a comprehensive health service”,

wording that can be traced back to the original 1946 NHS Act. Amendment 5 makes it clear that the Secretary of State will retain ministerial responsibility to Parliament for the health service. It has been this question of ministerial responsibility that has been such a cause of concern, and I am sincerely grateful to the noble Baroness and the Constitution Committee for drafting this amendment which, I hope, should serve to put everyone’s minds at rest on this issue.

Noble Lords will recall the original suggestion made by my noble and learned friend Lord Mackay, which used “ultimate responsibility to Parliament”. I should explain that we have gone with the formulation “ministerial responsibility to Parliament” because it more clearly refers to the constitutional principle of ministerial responsibility. That is to say: Ministers are responsible, accountable and answerable to Parliament for their policies, decisions and actions—and, indeed, those of their departments. The principle is recognised by Parliament and the courts, and, as the Constitution Committee notes, in the Ministerial Code. The amendment reflects the position that as a result of the principle and the duties and powers imposed by NHS legislation, the Secretary of State for Health is responsible and accountable to Parliament for the health service in England, even if he or his department do not directly provide or manage NHS services. It has never in fact been the Government’s intention to diminish ministerial responsibility to Parliament, so I can offer my wholehearted endorsement of and support for this amendment. I hope that your Lordships will feel able to do so as well.

[Baroness Jay of Paddington]

My Lords, I am grateful to the Minister for the way in which he introduced this amendment because, as he graciously expressed, this is not really a government amendment but an amendment by the Constitution Committee, which it invites your Lordships to agree. Of course, with a government Minister at the head of those supporting the amendment, I hope that will in itself be unarguable. It is right that the Constitution Committee’s position should be explained a little more in the context of this first amendment in relation to the Secretary of State's responsibilities, and I am glad that it has been put in a group on its own. It is a very significant amendment, and not just because it alters fundamentally the expression of the Secretary of State's responsibilities from the original Bill. It is also significant because of the process by which it has been reached—the Minister has already alluded to this, and I certainly express my enthusiasm for the process—and in which the House has undertaken this work.

The terms of the amendment are simple but very powerful:

“The Secretary of State retains ministerial responsibility to Parliament for the provision”—

that is always the difficult word—

“of the health service in England”.

It is simple but powerful because, frankly, so is the concept of ministerial responsibility, although we argue about it all the time. It is a basic concept which, as the Minister has said, has been expressed in all NHS legislation, and quite rightly in my view, since the first Act 60 years ago. Without wishing to appear to give a civics lesson to the House, it is worth saying that the Constitution Committee has agreed that, in its terms, individual ministerial responsibility means that Ministers must be accountable and answerable to Parliament for their—and their departments’ and agencies’—policies, decisions and actions. I think that is widely accepted. There is no constitutional distinction between ministerial responsibility, accountability and answerability; they are all aspects of the same constitutional fact.

This Bill was worrying, because it was the first in which there was not an explicit provision on political and legal accountability. The Constitution Committee, as the noble Earl said, raised serious concerns about this in the initial report that we gave to the House before Second Reading. There we said that the Bill, if enacted in its present form, risks,

“diluting the Government's constitutional responsibilities”,

for the NHS. It is worth reminding your Lordships that those responsibilities which the Minister should retain embrace the accountability to Parliament for the vast public expenditure that the NHS undertakes, and the provision of its multitude of services.

Health and Social Care Bill

Baroness Jay of Paddington Excerpts

Tuesday 22nd November 2011 Lords Chamber

[Earl Howe]

As I said, there will be full public consultation on the mandate. It would of course be possible for the Health Select Committee or indeed other parliamentarians to scrutinise and challenge the mandate at that point. If changes to the mandate were made in-year as a result of that process—that is not inconceivable—then a revised mandate would be published. It would be laid before Parliament with an explanation. After the mandate comes into force in April 2013, Parliament will have all the usual opportunities to ask questions about the performance of the board against the mandate. The board in addition will include in its annual report an assessment of performance against the mandate, and that will be published and laid before Parliament.

The noble Lord, Lord Hunt, asked me how we will know what the board said when it is consulted about the mandate. As I am sure he knows, the Government have a code of practice on consultation that we would follow. That code sets out the expectation for the Government to respond to the consultation and in doing so to provide a summary of the views expressed to each question as well as of what decisions have been taken in the light of them.

The noble Lord, Lord Patel, asked a question that the noble Lord, Lord Warner, also asked me about what would happen if the board disagrees with the mandate. The mandate sets out the objectives that the Secretary of State considers the board should seek to achieve. Those objectives will be developed in close co-operation with the board. It will not be a detached process. Indeed, the Bill requires the Secretary of State to consult the board before setting the mandate. Nevertheless, decisions about the content of the mandate will ultimately rest with the Secretary of State, and I contend that that is entirely appropriate. It is the Secretary of State taking responsibility on behalf of the Government for what he is requiring the board to achieve.

I hope that I have shown that the level of transparency and of public accountability over the mandate will be very great indeed. I do not share noble Lords’ apprehensions that somehow Parliament will have no opportunity to comment on the mandate. Quite the reverse is the case. We will ensure that it does, and it is right that it does. This is an entirely new situation for the NHS. I hope that that is welcome to noble Lords and that I have said enough to persuade the noble Lord, Lord Warner, to withdraw his amendment.

[Baroness Jay of Paddington]

I wonder whether the Minister can help me with a point he made in response to the noble Lord, Lord Owen. He was raising some important points of principle about the Secretary of State’s role and the way in which it, as it were, percolates through so many of the provisions in the Bill, and the Minister referred to Clause 49 as being something that should ease those concerns. I realise that we are not discussing Clause 49 at the moment, but the Minister and the Committee will remember that the Select Committee on the Constitution was concerned that Clause 49 was not an adequate answer to some of these points of principle that were raised by, among others, the noble Lord, Lord Owen. Can the Minister help me this afternoon on that?

Health and Social Care Bill

Baroness Jay of Paddington Excerpts

Wednesday 9th November 2011 Lords Chamber

[Earl Howe]

My Lords, I, too, think this has been a very valuable debate and I thank all noble Lords for their contributions to it. I do mean that. Ministers always like to hear support, and I have had some of that today, but at the same time no self-respecting Minister would wish to brush aside the kinds of concerns that have been voiced this afternoon about the effect of this clause. I certainly do not wish to do that; hence my offer to engage in discussions with those noble Lords whose concerned voices have been heard.

Following the consensus that we reached at last week’s Committee session on that proposal, I express the hope that the noble Lord will feel able to withdraw his amendment at the end of this debate and that we will use the time between now and Report to reflect on the concerns that we have heard expressed about Clause 4—and, indeed, on Clause 1 last week. I recall from discussions in the Chamber on 2 November that the Committee had little appetite to hear me dwell on Clause 1 or the amendments to it. I am therefore going to keep my remarks brief. However, I hope that the Committee will find it helpful if I provide a bit of context to this clause.

As I said at Second Reading, our proposals for the NHS involve a fundamental shift in the balance of power away from politicians and on to patients themselves, as well as to doctors and other health professionals. This is not an abdication or divestment of power by politicians but a shift. I think that we all agree that empowering front-line organisations offers enormous potential to unleash innovation and to drive up the efficiency and quality of services. The noble Lord, Lord Darzi, to my mind, said it all. That is why the Bill retains the key powers that the Secretary of State needs in order to remain properly accountable but removes his current sweeping powers to delegate and give directions to other bodies.

Instead, the Bill sets out roles and responsibilities in primary legislation that local commissioning will be carried out by clinical commissioning groups—with their own distinct statutory duties, set by Parliament—rather than by PCTs acting under the direction of the Minister of the day. Ministers will have specific but extensive powers to set requirements for commissioners, in particular through the mandate to the NHS Commissioning Board and through regulations known as standing rules. As the noble Lord, Lord Warner, observed, I am sure that we will give some thought to the impact of the autonomy duty when, in future Committee sessions, we debate the clauses that give the Secretary of State these powers.

However, there is a clear need for Ministers to have sufficient flexibility to respond to changing circumstances in the health service. Given that, there is very little limit on what or how many objectives or requirements the Secretary of State can impose. That leaves open the risk that a Government—or indeed the board, which has an equivalent duty at Clause 20—could introduce process targets or burdensome rules that inappropriately interfere with front-line clinical decision-making. That is the last thing anyone wants. To my mind, this makes it vital to have some kind of countervailing force to establish the principle that Ministers should use their powers carefully. We believe that the autonomy duty provides this important safeguard, enabling organisations to act in the best interests of patients, free from the risk that Ministers or the board revert to a command-and-control style in order to achieve their objectives. The noble Baroness, Lady Murphy, put the point very well.

The duty is therefore an important symbol of the shift of power that the Bill seeks to achieve. I agree with my noble friend Lord Marks that the autonomy duty must be subsidiary to the general duties of the Secretary of State, including, in particular, his duties under Clause 1 of the Bill to promote a comprehensive health service and to exercise his functions so as to secure the provision of services. Although we believe that the duty of autonomy would not inhibit the Secretary of State in exercising his overarching powers and duties as set out in Clause 1, I recognise, as I say, that there are concerns about legal clarity. I therefore welcome the prospect of further discussions with my noble friend and other noble Lords outside this Chamber as to how we might put this matter beyond doubt.

[Baroness Jay of Paddington]

My Lords, I apologise for interrupting during the Minister’s conclusion but I hope this will be helpful. I want to explore whether he can just help me by describing what he sees as the scope of these discussions, in terms of the clauses to be discussed. As the noble Lord, Lord Marks of Henley-on-Thames, pointed out for example in his very helpful intervention when he made passing reference to it, the proposed new Section 13F of the 2006 Act, at Clause 20 in the Bill, is very relevant. It may be helpful to the House to know that the Constitution Committee was invited to look at this again. We have met since the last day of Committee and have agreed to look again at Clauses 1, 4, 10 and 20 precisely because of that interrelated matter. Could the Minister help us on that?

[Earl Howe]

I am grateful to the noble Baroness. As she has indicated, there is certainly a read-across from Clause 4 into Clause 20, and I readily accept the suggestion that we should factor in issues that emerge from Clause 10.

I am clear that a successful process will be one that can take account of views from all political parties and the Cross Benches. As well as hearing in full from those Peers, many of whom have put their names to amendments and have become particular experts on this issue, there is also an implicit legal perspective to this and I believe that an important building block will be to engage with the Constitution Committee of your Lordships’ House and other legal experts in this House on these points. To start that dialogue, I propose to meet next week with a number of noble Lords, if they are willing, to explore the process for going forward. Following that, I will write again to all Peers setting out the proposed process in more detail. I hope that that is helpful.

I have very clear answers for the noble Lords, Lord Patel and Lord Warner, and other noble Lords to the concerns that they have raised. However, for the reasons that I have set out, if they will bear with me, I shall refrain now from providing a detailed commentary on the amendments in this group. I hope that, with the prospect of future discussions that will factor in the valuable points in this debate, the noble Lord will feel able, for the time being, to withdraw his amendment.

Health and Social Care Bill

Baroness Jay of Paddington Excerpts

Wednesday 2nd November 2011 Lords Chamber

[Lord Mawhinney]

My Lords, I would not presume to speak for my noble colleagues on these Benches, but it seems to me right that someone who would be openly classified as a supporter of this Government should rise to say thank you to my noble friend for his statement, which finds support not only on the Benches opposite or on the Lib Dem Benches but, I presume, on these Benches also. I say that as someone who has actively taken part in the proceedings thus far.

My personal view is that this House owes a debt to the Minister. I would guess that it was not necessarily the case that all of his colleagues immediately jumped to the same conclusion as him, but he jumped to it having listened to the debate last week. We should express our appreciation not only for the fact that he jumped to that conclusion but for the tone that he has set in delivering it. If that tone prevails during the rest of Committee we will all be the better for it and, much more importantly, the country and the National Health Service will be the better for it.

I have one substantive comment to make to my noble friend. None of us will want to question in any way the professional expertise of the legal profession. I am sure that it is to the benefit of the House that legal minds apply themselves to trying to find a way forward that would be broadly acceptable. I say gently to my noble friend that this is also about medicine and the delivery of medical care and, if he would permit me to use a not very fashionable word, it must also be seen in a political context. Those are aspects of the deliberations which I hope that he will bear in mind, and not simply adhere to the consensus legal opinion, no matter how good or persuasive it may be, before that is tested in both the medical and the political world.

[Baroness Jay of Paddington]

My Lords, as one who has been involved peripherally in the discussions over the past few days with the Minister, I follow the noble Lord, Lord Mawhinney, in paying tribute to the Minister for his great patience and courtesy in the number of times and the way in which he has sought to talk to everyone involved in this.

Further to the question of my noble friend Lady Thornton and the noble Baroness, Lady Williams, in exactly what form would the Minister see further discussions taking place? Several Members of the House have referred to the possibility of the Constitution Committee—which, as the House knows, I have the privilege of chairing—taking this up again. There have already been informal discussions in private sessions of the committee about ways in which we might take this forward. It would be helpful if we could have some indication of how the Minister sees that happening and how it may develop. I very much take on board the points made all around the House about the way in which the Bill as a whole, not simply this clause, has been discussed and how helpful that has been.

[Baroness Tonge]

My Lords, I am sorry to create just a small ripple in the sea of calm and tranquillity that represents this Chamber this afternoon, but I follow on from what the noble Baroness just said and ask: is there no procedure that we could adopt which would bring the decision of the House on this matter of the duty of the Secretary of State to provide health services back before Report? Report will not be for two months, perhaps, by which time we will have been discussing all the other issues in the health service in a sort of vacuum. How can we discuss all the things that we want a health service to do if we do not know whether the Secretary of State is going to have a duty to provide them? It seems rather odd that we are putting the cart before the horse, or whatever the correct analogy is. This is an important matter. I feel very strongly that we should know as soon as possible whether the Secretary of State will have a duty to provide health services in this country. If we do not have that reassurance, we will have not a National Health Service but a national health shambles.

[Lord Warner]

My Lords, perhaps I may intervene briefly not in any way to damage this positive outbreak of peace but to make a practical suggestion. Much of the Constitution Committee’s report turned on the judgment of the noble and learned Lord, Lord Woolf, in the Coughlan case.

[Baroness Jay of Paddington]

My Lords, I must intervene on that point. That is only the secondary point of the report.

[Lord Warner]

Perhaps I may be allowed to deal with it, whether it is the first or secondary point—I do not have the report with me. The point that I wish to make is that we have the noble and learned Lord available to us in this House. If we are to have some arrangement to consider how we go forward on this, I think that it would be sensible to discuss the matter with him because he has sat on cases where the role of the Secretary of State has been a key factor in the courts.

Health and Social Care Bill

Baroness Jay of Paddington Excerpts

Tuesday 25th October 2011 Lords Chamber

[Lord Mackay of Clashfern]

In my clear opinion, yes. The idea of ultimate responsibility being with the Secretary of State is that his is not the first line of action under the statute, assuming it all goes through. Indeed, such statutory bodies already exist in the health service. They have responsibilities, but the ultimate responsibility, and that which brings the Secretary of State to account to Parliament, is the one that we want to fix on. It certainly means that he and his Minister in this House must account for the provision. I use that word; although he does not have a legal responsibility to provide, he has a legal responsibility of accountability to Parliament.

[Baroness Jay of Paddington]

My Lords, I am grateful to the noble Baroness, Lady Williams, and the noble and learned Lord, Lord Mackay of Clashfern, who adequately and precisely précised much of the important part of the Select Committee on the Constitution’s report on this part of the Bill, to which other noble Lords have referred.

I still have some difficulty, although I realise that the amendment of the noble and learned Lord, Lord Mackay, is helpful in addressing the problem that we have all been concerned with about ultimate responsibility to Parliament—the accountability and political responsibility, particularly for the enormous budget of the health service. I take all the noble and learned Lord’s points about the fact that in real life the Secretary of State is not running clinics or bandaging people in road accidents. However, my concern remains over why, as the Constitution Committee said, the provision clause cannot simply be maintained in the Bill. Such a clause was included in the 2006 Act and in all previous legislation—as were the Secretary of State’s responsibilities. I understand that in real life the current words do not necessarily confront the true situation, but his constitutional and legal responsibility are derived through those words.

I apologise to the Committee for not being here for the debate on the previous amendment; I was unavoidably involved at another engagement in the Palace. However, the noble and learned Lord, Lord Mackay of Clashfern, spoke eloquently on Amendment 1 and repeated to the Committee the effective and powerful words in the 1946 Act. They were widely accepted all around the House as being a forceful example of how the principles behind the Act should be invoked. There was discussion on that amendment as to whether the words should be revisited if we were considering some clause of principles in the preamble to the Bill. I took note of the words that the noble and learned Lord referred to from the 1946 Act, including the words embraced by the amendment of the noble Baroness, Lady Williams, because they have been placed in every Act relating to the health service since 1946. That is why I still find it difficult to understand why the Government resist retaining these words—although the noble and learned Lord produced an eloquent argument about real life and maintaining responsibilities to Parliament.

[Lord Mackay of Clashfern]

Of course the words could be retained, but the question is whether it is right to retain them when, in fact, part of the option has not been in use—it was only ever an option. You should take account of what is actually happening. The passage that I was quoting as indicating what the health service is for was the general passage preceding that. These powers were given to the Secretary of State in order to implement the grand idea that was so well expressed in Section 1 of the 1946 Act. When these powers were given, they were given as options. The Secretary of State did not have to provide, he could do so by securing the provision. That option has always been there. Therefore, there has never been a legal obligation to provide, apart from such an option. When the option that has been chosen in recent years is the second one, it seems only right that the law should proceed on the basis of what actually happens. People in my profession are not unknown for continuing to use expressions from years past, which no longer have real substance to them. I do not think that it is a very good idea for Parliament to do that. However, Parliament may have understood the provision to have been the one whereby the Secretary of State was responsible. Therefore, that is the basis on which I have put forward the Secretary of State’s accountability to Parliament.

[Baroness Jay of Paddington]

I appreciate the noble and learned Lord’s intervention, which is very powerful. But the fact remains that as he said in relation to Amendment 1, those original words are both legally enforceable and very clear. That is in a sense our point. Although there is political capacity to put the points that he has put in his new Amendment 4, about making it ultimately responsible to Parliament, as he said himself on Amendment 1, the present wording is clear, legally enforceable and very straightforward.

Two things are legally difficult, apart from the political and constitutional relationship of the Secretary of State to Parliament and his accountability for the budget, which, again, the Constitution Committee drew attention to. This is in paragraph 9 of our report, which I may quote deliberately, because I would be very interested in the Minister and the noble and learned Lord’s reaction. Under the existing legislation, the words, which are the words in the amendment of the noble Baroness, Lady Williams, are always read together with the capacity which is in Section 3(1) of the 2006 Act, replaced in this Bill by Clause 10, which enables that provision of services. We can discuss at greater length whether they are adequate in the noble and learned Lord’s Amendment 8, and whether they are read together in the courts. Our paragraph 9 states that,

“the courts have made it clear that the Secretary of State’s duties in these sections are to be read together”.

In the leading case, which was R v North and East Devon Health Authority, colloquially known as the Coughlan case, the noble and learned Lord, Lord Woolf, when he was Master of the Rolls, appeared in the Court of Appeal. He ruled that, for example, the Secretary of State in Section 1,

“has the duty to continue to promote a comprehensive free health service and he must never, in making a decision under section 3, disregard that duty”.

The two are to be read together. You cannot dissociate the responsibility which has been in all of the Acts since 1946 from that duty to provide. In that sense, there is a question to both the Minister and the noble and learned Lord how they would resolve that problem, even if the wording in the noble and learned Lord’s Amendment 4 does cover some of the questions about responsibility to Parliament.

[Lord Mackay of Clashfern]

The answer to the noble Baroness’s question is this. The quotation of the noble and learned Lord, Lord Woolf, is from the first part—the duty is to promote a comprehensive health service for the reasons given. He does not—and could not, in the nature of things—refer to provision in the last part of that as a foundation for his judgment in Coughlan, because the provision was made by others. The question was whether it should be charged. So it is only the first part, not the second part. That is why I regard the first part as extremely important as the introduction to the statute—it is enforceable, and we have an example of it actually being enforced in Coughlan.

[Baroness Jay of Paddington]

This must not develop into a private discussion about the finer points of our report or the law, in which the noble and learned Lord would certainly be more expert than me. Surely the difference now is that, as it says in the guidance on this Bill,

“the commissioning and provision of services will no longer be delegated by the Secretary of State, but will be directly conferred on the organisations responsible”.

So the organisations responsible cannot have the legal duty that is embraced by the present Act. Therefore, the legal responsibilities of the Secretary of State are automatically fragmented. The straight line of legal enforceability and responsibility, through the bodies who have rightly—as the noble and learned Lord has said—been delegated over a number of years to other providers, has been broken. That link in the chain has gone.

[Lord Davies of Stamford]

Before the noble Baroness sits down, I wonder if she could just help me with—

--- Later in debate ---

[Lord Newton of Braintree]

My Lords, I am once again tempted, in this case by the noble Lord, Lord Warner, with whose views I almost entirely agree. Indeed, I find myself on an alarming number of occasions having quite a lot of fellow feeling with him. I will return to one or two of those points briefly. Being a singularly modest character, these debates are beginning to induce in me a feeling of considerable intellectual inadequacy—which I suspect is not the case with the noble Lord. I constantly feel that I am in the presence of angels dancing on the heads of pins. I hear the noble Baroness, Lady Jay—I hope she will not mind my saying this—saying, “We might as well retain this, because it has always been there”, even though we know it has never been the reality. At that point, we stop being angels dancing on the heads of pins, and we start dancing round a totem pole. On the whole, if we are going to dance round a totem pole, I would like a totem pole that reflects what we want to happen, not what was written into a Bill 60 years ago. The noble Baroness thinks I am being unfair.

[Baroness Jay of Paddington]

I certainly do not think that the noble Lord is being unfair. I suggest to the noble Lord, Lord Newton, that he reflects on what the noble and learned Lord, Lord Mackay of Clashfern, said on Amendment 1, which was precisely to invoke the Act of 60 years ago, and to pray it in aid, as reflecting what could be a useful addition to the principles of this Bill. That is precisely what I am seeking to address.

[Lord Newton of Braintree]

I strongly supported and continue to support that, which is very reflective in ensuring that we do rest on the original foundations. I never thought I would be a natural Bevanite, but it appears that I have become one, together with a number of others.

That was not quite the point—we were then talking about a preamble. We are now talking about a slightly different provision. I would be entirely happy to see the preamble of the 1946 Act incorporated into this, with—as I said in my speech earlier—perhaps a little tweaking. However, we are now talking about the best way of ensuring and establishing the responsibilities, in the real world, of the Secretary of State. I have another sense of unreality in all of this, born of many years in the Commons. The idea that, whatever this Bill says and however precisely it is worded, the British political system—the House of Commons in particular—would allow the Secretary of State to dispense £120 billion per year of public money without being answerable and accountable to Parliament, is inherently ludicrous. The system would not allow it to happen. I am all in favour of writing that into the Bill if we can find appropriate terms, but in reality that will be the case whatever we have in this Bill.

I agree—and not for the first time—with everything my noble friend Lady Williams said about the importance of making this clear beyond a peradventure. I am quite happy with that.

Health and Social Care Bill

Baroness Jay of Paddington Excerpts

Tuesday 11th October 2011 Lords Chamber

[Baroness Jay of Paddington]

My Lords, I am delighted to follow the noble Lord, Lord Owen, and I will pursue the points he raised about findings of the Select Committee on the Constitution on the role of the Secretary of State. However, I start by also following the noble Lord in speaking briefly about what I see as the underlying principles of the NHS and the public understanding of them.

Almost exactly 15 years ago, in November 1996, I was proud to introduce a debate in your Lordships’ House to mark the 50th anniversary of the founding of the NHS, which also sought to reassert its public values. As so often happens in general debates in your Lordships’ House, the debate attracted a wide range of speakers, some of whom I am delighted to see are also speaking today. There was general agreement on that occasion that, although healthcare and people’s expectations of it, as the noble Lord, Lord Darzi, reminded us, have changed vastly since the 1940s, the old values of social solidarity and collective responsibility must be maintained into the 21st century. On that day for me and, I think, for many others present, the argument was given special force and passion by the late Lord Bruce of Donington, Donald Bruce, who was Aneurin Bevan’s Parliamentary Secretary and helped to steer the original founding Bill through Parliament.

As today we are beginning our scrutiny of a Bill promoted as the biggest shake-up of the NHS since it began, I do not think it is irrelevant to look back at the principles which Donald Bruce and his parliamentary colleagues created. Recently I found again my family’s somewhat dog-eared copy of Aneurin Bevan’s testament, In Place of Fear. I am glad to echo the words of the noble Lord, Lord Darzi—in place of fear. The first sentence in the chapter on a free health service reads:

“The field in which the claims of individual commercialism come into most immediate conflict with reputable notions of social values is that of health”.

I say “hear, hear!” to that in 2011, as I would have done in 1946. He goes on later to say:

“A free NHS is a triumphant example of the superiority of collective action and public initiative applied to a segment of society where commercial principles are seen at their worst”.

I want to repeat those words not because I have any desire at all to see the NHS preserved in a kind of post-war aspic. Like other noble Lords who have spoken from these Benches, and indeed around the House, I am entirely in favour of change. But it is legitimate, when today’s Government assert that they are proposing fundamental change while at the same time maintaining those underlying values, to test their proposals against some simple and original principles.

Let me say at the outset that I have never been a Bevanite or an old Labour purist about the provision of health services. I have long believed in a mixed economy of providers, and noble Lords around the House have correctly drawn attention to the changes made by the Labour Government in that direction. I could say anecdotally, to coin the phrase of the noble Baroness, Lady Bottomley—I hope that I am not being anecdotal in a negative sense, but in order to be illustrative—that right at the beginning of Tony Blair’s Government, my right honourable friend Alan Milburn and I, as Ministers of State in the Department of Health, argued—I have to say unsuccessfully—that a private sector company should be allowed to build and equip a renal dialysis centre in a part of the country where the existing services were inadequate. Had that service happened—as I say, it did not—the centre would, of course, have been staffed and managed by the health service. When Alan Milburn later became Secretary of State, he did indeed allow some aspects of private sector involvement, as well as the voluntary and charitable sectors, to intervene in order to extend and improve local patient care. I am delighted that my noble friend Lord Hutton of Furness is to speak later in the debate because I am sure that he will record from his own history the way that programme was taken forward by the previous Government. However, I supported it only if—this was the central underlying condition—those providers were appropriately managed and planned for in the interests of patients and not the providers, based exclusively on quality and not on price competition, and remained firmly within the framework of NHS accountability.

Today, I have to say there is already an expectation, perhaps in anticipation of this Bill’s passage, that a free market is opening up in a completely different way. I was alarmed to learn only 10 days ago, for example, that in Surrey a private company owned by the Virgin corporation is now the preferred bidder to run community health services in a deal worth about £500 million. The particularly disturbing aspect of the Surrey decision is that Assura Medical, the Virgin company, is preferred over a well respected local social enterprise mutual organisation, appearing to confirm fears that large multinational businesses will win out over smaller, less commercially sophisticated providers. I must say to the noble Baroness, Lady Bottomley, that I was not encouraged by her invoking the Tesco example.

If this is the future the Bill will create, it is a revolutionary and unwelcome system. This is a completely free, competitive market—a long way from the mixed economy of publicly accountable provision within the NHS set-up which I can accept as consistent with the original principles of the service. However, with the leave of the House I shall take a few minutes to come back to the principles of accountability, particularly the democratic accountability of the NHS. I want to refer to the recently published report of your Lordships’ Committee on the Constitution, which I am privileged to chair, and to which the noble Lord, Lord Owen, and other speakers have already referred. As the Minister has said, we have already had a response to the report, but I am afraid to say that I only received it this morning and therefore he and the House will understand that the committee has had no chance to consider it in detail. However, I echo the concern of the noble Lord, Lord Owen, that although the Minister has been encouraging in private conversation and in his speech today about the possibility of amending the Bill so as to counter the concerns of the committee about accountability, the wording of his letter written to me last night states:

“We do not consider any amendments necessary to put this matter beyond legal doubt”,

which is an exact contradiction of what the committee has said and what I understood the noble Earl to say in his opening remarks. Perhaps that can be clarified.

The primary concern of the committee is the question of the duties of the Secretary of State and his legal responsibility. To emphasise the point picked up by the noble Lord, Lord Clement-Jones, it is not that the Secretary of State and the Department of Health currently provide health services which under the Bill would be provided instead by clinical commissioning groups—everyone understands that Ministers have never directly provided services—but that under existing legislation, the Secretary of State is constitutionally and legally responsible for the provision of healthcare, whoever provides it and wherever it is provided. There are new so-called safeguards in the Bill in Clauses 49 and 50, but the Constitution Committee regards them as only a modest contribution towards a new form of accountability, and your Lordships may not regard them as sufficient.

Of course, the Constitution Committee has already proposed a simple solution; that is, to retain the existing wording in the current Act which in our view reflects the founding provisions established in 1946. I was surprised that in many exchanges in the House of Commons, Ministers seemed to be dismissive of concerns about these constitutional matters, simply suggesting that their words and the Department of Health statements were sufficient to guarantee that established health service principles were, to use the cliché, safe in their hands. Frankly, that arouses my suspicions. If the Government feel it is so obvious that the words in the Bill are irrelevant to the long-standing commitment of the Secretary of State to his responsibilities, there really is no reason why they should not accept the existing words as they are set out in the existing Bill. Perhaps I may find the quotation from the Minister’s letter which suggests that he would be unable to deal with that fact. I ask the forgiveness of noble Lords. I received the letter only this morning and I may have lost the relevant page. However, I am sure we will return to this in Committee or at a later stage, but I was not encouraged by the Government’s response to the Committee’s report. As the noble Lord, Lord Owen, said, it was a thorough cross-party recommendation. If my suspicion that the Government are perfectly content to dilute their legal and constitutional responsibilities is correct, that is in order—as it states in another important clause, Clause 4—to promote “autonomy”; in other words, to promote a completely free, competitive market.

I apologise for the length of my contribution, but in conclusion I have been surprised by the volume of public correspondence precisely on the points raised in the Constitution Committee’s report. There is clearly a widespread fear that this Bill will erode the democratic accountability of the NHS as well as the ethical co-operative foundations of the service. In my view, the Bill will need to be properly amended to allay those fears, and I would be grateful if the Minister will make it clear in his concluding remarks whether the Government are still open to that, and to be true to the founding principles. As a first step, I will certainly support the Motion put forward by the noble Lord, Lord Owen, that a special Select Committee should be established.