Health and Social Care Bill

Baroness Thornton Excerpts

Wednesday 21st December 2011 Lords Chamber

Relevant documents: 19th report from the Delegated Powers Committee, 18th and 22nd report from the Constitution Committee.

[Baroness Thornton]

My Lords, I return for the last time in 2011 to the issue of the risk register in the Health and Social Care Bill—a sort of Secret Santa for the Minister. During the course of the debate on the Motion to Regret on 7 December, several noble Lords referred to the start point of Report being timed so that the appeal on the Information Commissioner’s report would be complete and the House would know the result. The Minister himself—

[Baroness Anelay of St Johns]

My Lords, may I first ask Members to leave quietly so that we may hear from the noble Baroness, Lady Thornton. May we establish on what basis, on what Motion, the noble Baroness is making her point? She has not interrupted the House going into Committee. I believe that perhaps the most appropriate way forward would be for the first amendment to be called. The noble Baroness may then speak as part of her contribution to that amendment, but I believe she would be out of order to continue at this stage.

Clause 247 : Powers to publish information standards

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[Baroness Thornton]

My Lords, I agree with the noble Baroness, Lady Williams. This question brings us right back to the Secretary of State’s powers. I also agree that the procedure in the Bill is complex and I am not sure that it will work. It is not clear at all who will be the arbiter. It seems strange that Monitor has powers to intervene on failure but there does not seem to be the same structure around co-operation and when co-operation fails. This part of the Bill feels like it does not work properly. It is too complex and probably needs another look.

[Earl Howe]

My Lords, I have listened with great interest to the points that have been made. I feel it would be useful if I first set out how this clause would work and the series of events that it would allow. Then I will try to explain why we believe that the powers it provides are an appropriate and constructive lever within the new system.

The method of intervention set out in Clause 285 needs to be considered as one of a range of intervention powers and levers available to the Secretary of State in order to ensure that the system operates in the best interests of patients and that he complies with his duties in relation to the health service. These include the proactive setting of objectives for the health service through the annual mandate to the board and setting requirements through the standing rules. The Secretary of State also will have a duty to keep the effectiveness of arm’s-length bodies under review.

In addition, the Secretary of State will have more extreme intervention powers such as the ability to remove the chair of an organisation, where they have failed adequately to perform their functions, and the ability, under specified circumstances, to give directions to an arm’s-length body where the Secretary of State considers it has failed to discharge those functions, or has failed to discharge them properly. Clause 285 should be viewed as an additional power alongside the others conferred on the Secretary of State by the NHS Act and this Bill. Of course, should the Secretary of State employ his powers as set out in Clause 285 and the problem persists, then where he considers that one of the bodies is failing to discharge its functions properly, he would be able to exercise his powers of direction.

The Bill places new duties to co-operate, in addition to modifying existing duties, so as to ensure that all of the arm’s-length bodies in the system, such as the Commissioning Board and Monitor, are required to co-operate with one another. We wanted to do more to encourage co-operation in the new system, partly out of recognition that the current system would benefit significantly from greater co-operation, but also because the new arrangements will create an even greater need for co-operation given the strongly autonomous and interdependent arm’s-length bodies that will be created.

The clause sets out powers for the Secretary of State to take action in response to a breach of the relevant duties of co-operation. It provides a mechanism for pressing organisations to resolve disputes in the unlikely event—we hope and trust that it will be unlikely—that two or more organisations covered by the clause fail to co-operate. If the Secretary of State believes that the duties of co-operation listed in this clause have been or are being breached, or are at significant risk of being breached, he will have a new ability to write formally and publicly to the organisation in question. If the bodies continue to breach the duty following the notice and the breach is having a detrimental effect on the performance of the health service, as the noble Baroness, Lady Finlay, pointed out, then the Secretary of State will have a further ability to lay an order, specifying that each body could take certain actions only with the approval of the other body. This measure would be subject to affirmative approval by both Houses of Parliament and could last for up to a year. That means that organisations in dispute would be strongly reminded of their interdependence as part of a national system. As a matter of last resort, if agreement could not be reached, either party would be able to invoke independent arbitration under Arbitration Act arrangements. In this way, the organisations in question will be pressed to resolve their difference without recourse to the Secretary of State and the Department of Health.

This is an important element of our policy. We want arm’s-length bodies to focus on the functions conferred on them by Parliament, the objectives set for them by Government and the relationships with other organisations that will help them to achieve their goals. We do not want them placed in a position where they are trying to secure relative advantage in the system by using the Secretary of State as a means of determining the outcome of disputes. The existence of the order-making power will both help to preserve the autonomy of organisations and encourage them to work constructively with one another.

I emphasise that this is a precautionary power and we expect it to be used only in very exceptional circumstances. It is also important to note that the powers and duties described in this clause are about co-operative behaviours. They do not in any way undermine the independence of Monitor or the CQC to make specific regulatory decisions in relation to another arm’s-length body. For example, the Secretary of State could not use the provisions to constrain Monitor from taking action against anticompetitive purchasing by the NHS Commissioning Board.

[Baroness Thornton]

My Lords, if these bodies are strongly autonomous, as the Minister has said, can they not just tell the Secretary of State to get lost?

[Earl Howe]

My Lords, that is the whole point of this clause. The Secretary of State must have levers at his disposal. Even if he does not use them, the fact that he has them will be a clear signal to bodies that they must co-operate in the way that Parliament—if the Bill is approved by Parliament—intends. As I said, we have identified gaps in the current system that need to be resolved because it is important that arm’s-length bodies that have functions directly conferred upon them take those functions seriously and do not resort constantly to arbitration by the Secretary of State or the department.

We expect that the vast majority of differences between organisations will be resolved by the organisations themselves and that this power will be used rarely, if at all. Nevertheless, it is important that the power exists. The fact that failure to co-operate could have public and highly embarrassing consequences will strengthen the incentive for organisations to co-operate effectively in the interests of patients.

We believe that this approach strikes the right balance between the need for the Secretary of State to fulfil his stewardship role within the system, being able to intervene to ensure that disputes are resolved, with the need to ensure that organisations are responsible and accountable for their own decisions and actions. These powers allow the Secretary of State to ensure that solutions to problems are found in a timely manner, without him or her stepping in to specify and micromanage what those solutions should look like.

The noble Baroness, Lady Finlay, asked me a number of specific and detailed questions. I will take up her invitation to write to her on those and copy other noble Lords in. With those assurances, I hope that she will feel able to allow the clause to stand part of the Bill.

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[Baroness Finlay of Llandaff]

My Lords, I really am not trying to prevent Christmas starting for Members of this Committee. I feel as though most of today’s amendments have concerned me. These are probing amendments, which relate to NHS capital assets. They are designed to explore what happens to the current offices and clinical premises of an NHS body at the time of transition and afterwards. If these premises are occupied by a clinical commissioning group or a company that is advising a clinical commissioning group on its commissioning, who will become the owner of the property?

This is important because GPs are themselves independent contractors, not NHS employees. For many—not all but a significant number—the premises from which they work are owned by their practice. They, not the NHS, jointly own them, even though the building will usually have been subject to a range of capital improvement schemes from the NHS over many years. Such schemes allow a GP to purchase a practice and invest in it over the years. The capital gained then forms a significant additional pension pot for that GP.

My question for the Government concerns whether the deeds of the property will be transferred to the general practitioners of the clinical commissioning group. Will they be able to sell it for profit that would then be their personal profit? Will the profit revert to the NHS and, if so, to which pot? If property is transferred, will the new owner be liable to put capital gained into the capital part of the commissioning pot to develop service premises and equipment for the health service itself, rather than be able to take whatever capital gain there is on that property? I beg to move.

[Baroness Thornton]

My Lords, I just wish to add two questions of my own to the list that the noble Baroness asked. Has the Department of Health now resolved the issues around future asset ownership in respect of PCT and SHA estates? Within that, does that include LIFT schemes and PFI?

[Earl Howe]

My Lords, I hope I can answer the question of the noble Baroness very quickly. Clinical commissioning groups will be statutory bodies. They will be legally and operationally separate from GP practices. As such, if a clinical commissioning group occupies property that is under the ownership of that group, it will be under statutory ownership. It will not be open to GPs to sell such property at a cut price, or at any other price, to GP practices to enable such practices to pocket the profits. What the noble Baroness outlined sounded to me very much like embezzlement from the state. It will be no more possible for what she envisages to happen than for a primary care trust to sell a property and have its officers pocket the proceeds. I am a little mystified by the scenario that she has painted.