Health Bill

Debate between Lord Stevens of Birmingham and Lord Scriven

Committee stage
Monday 9th November 2026 Lords Chamber

[Lord Stevens of Birmingham (CB)]

I wonder whether this might be an opportunity for the Minister to set out how the new accountability arrangements would work in practice, because the amendment from the noble Earl, Lord Howe, would rightly require that, in the event that a power of direction is used, a rationale is set forth so that it is clear why a decision was taken and where responsibility for it sits.

One illustration of this might be the situation facing maternity services in Norfolk, which the noble Baroness, Lady Coffey, mentioned. I quickly had a look at the situation there. Of the three hospitals, two had under 2,000 births a year, and the prediction is that, within a decade, two of those three hospitals will be delivering four or fewer births a day. So there is a question about the sustainability and safety of that service. If, in the interests of a political direction, these new powers are used to insist that those small maternity units with a potential safety concern remain open, even though it might be hard to staff them and to provide the level of back-up said to be required, where will accountability for the safety questions sit? Will the Care Quality Commission, when it arrives at those hospitals, do an inspection to determine whether women may be put at risk, if that is the case? Will the Care Quality Commission then issue findings against the Secretary of State—potentially with criminal proceedings in certain circumstances—or against the local provider or the ICB?

To the extent that this group is about the integrated care boards, let us not forget that, as I understand it, the proposed route for direct influence from the Secretary of State to those hospitals in Norfolk would be only partly through the ICB strategic commissioning decision. The performance management function of those hospitals, including the way in which they manage their safety, will now be routed through this new offshore special health authority, which will then route back, on some sort of new vector, directly into the hospitals concerned. Can the Minister explain, in the interests of transparency and political accountability, how will it work in a situation like that? Where will the decision-making sit? When safety concerns are front and centre, will the Secretary of State override the individual provider, and will they do so via the new special health authority or just rely on the commissioning role of the ICB?

[Lord Scriven (LD)]

My Lords, it is quite a pleasure to follow the noble Lord, Lord Stevens, who asks some important questions about the transparency of the accountability mechanism—particularly since the whole reason for abolishing NHS England was to stop it being a stand-alone body in the department. As he has pointed out, we are abolishing a quango to set up a brand new quango. I look forward to the Minister’s answers on what the accountability mechanism will be if the CQC makes findings into maternity services in Norfolk.

I thank the noble Earl, Lord Howe, for these amendments. We made our position clear in the last group. We do not think that the general power in Clause 11 should exist in its present form, and in the last group we tabled a probing amendment with an alternative based on outcomes. However, if the Government insist on this, Parliament and the public should expect at least what these three amendments offer: a reason, a test and a record of those decisions.

Under the Bill, when the Secretary of State gives a direction under Clauses 8 or 11, they must publish it as soon as “reasonably practicable”. That is all. There is no reason, no duty to consult and nothing on how long it lasts or what it costs. The department’s memorandum to the Delegated Powers and Regulatory Reform Committee confirmed that there is no parliamentary procedure. On Clause 8, the memorandum says that directions avoid taking up “valuable parliamentary time” and that, unlike with voluntary delegation, a directed ICB would be “legally obliged” to carry out that function. It also says that publication means that the power is “used transparently”. Publishing an instruction is not transparency; explaining it would be the transparency that is required.

The Bill already accepts this. Under new Section 14Z62A, the Secretary of State must publish their reasons when they intervene in a board that is failing. A board in significant failure is told why; a board doing perfectly well which is directed under the general power—we should remember that this is a new power to direct an ICB that is not in any way underperforming—is not given a reason why the Secretary of State has decided to intervene. The Government cannot say that giving reasons is impractical when they require it a few lines further on in the Bill.

First, on the reason, the amendments to Clauses 8 and 11 would require a statement within seven working days on the function concerned, the reasons, how long the direction lasts, when it will be reviewed, its financial and operational effects, its effect on the ICB’s local population and who is responsible for what, which is absolutely vital for accountability. The Clause 11 amendment goes further. When subsection (3) is used and a board is made to act without forming its own opinion, the Secretary of State would have to say what opinion they formed and why, and why the board should not be able to form its own. This also matters for money. Clause 8 says that the Secretary of State may make payments, whereas Clause 11 says nothing about funding at all. A direction with no funding moves a cost from Whitehall to local services, and those affected deserve to see that reason.

Secondly, on the test, the memorandum says that directions are needed

“to respond to emerging situations”,

which is absolutely fine, and to secure nationally consistent standards. This amendment would stop neither: proposed new subsection (3D) would let the Secretary of State act first and consult afterwards where there is an urgent risk, with a decision on the direction within 28 days.

Proposed new subsection (3A)(c) expressly counts the benefits of consistency. It simply asks whether guidance, agreement or existing oversight would do the job and whether the direction is necessary and proportionate. It would also require the ICB to be consulted. If the Minister says, as I expect she may, that Ministers intend to act in this way, there is nothing to lose by saying so in the Bill. The Health Foundation has asked Ministers to set out safeguards for how the powers will be used, but we are still waiting for those safeguards and a full explanation.

Thirdly, in relation to the record, the proposed new clause after Clause 22 would put each direction in the board’s annual report: what has changed, what it cost, what risk the ICB warned about, and where responsibility lay. Under Clause 11, an ICB can be directed and, under Clause 21, is assessed on how well it has discharged its functions. Under new Section 14Z62A, failure includes failing to act

“consistently with what the Secretary of State considers to be the interests of the health service”,

and the chief executive can be removed. A board could follow an instruction, see its performance suffer and then be held to account for the subsequent result. Clear responsibility protects the ICB and protects patients.

I will be honest about the limits. None of these amendments gives Parliament a vote. Statements would be published, not laid. The test rests on the Secretary of State being satisfied, and Clause 8 has no such test. There is also a burden: consulting every ICB on a national direction takes time. Some of the drafting needs tidying before Report, but the general principle is one to be welcomed. The Minister may well call this bureaucracy, but if the Secretary of State cannot say within seven working days why they have given a direction, how long it lasts, what it costs and who is responsible, the Secretary of State really needs to think about why that direction has been given in the first place.

I have two very quick questions for the Minister. If reasons are required for a failing board, why not for every board, including boards that are performing well? Most importantly, what happens when an ICB follows an intervention and a direction from a Secretary of State and clinical outcomes or finance get worse? What happens in those circumstances and who, ultimately, will be held responsible? A reason, a test and a record—that is not much to ask of the Secretary of State who is taking so much power. I look forward to the Minister’s replies.