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.