Cities and Local Government Devolution Bill [HL]

Lord Warner Excerpts

Wednesday 15th July 2015 Lords Chamber

[Baroness Williams of Trafford]

I hope I can answer this satisfactorily. Let us take the example of York, within Yorkshire. If York was to become a constituent member of some sort of Yorkshire combined authority it could not then become a constituent member of another combined authority, but I think it would be perfectly possible for it to become a non-constituent member of another combined authority for certain purposes. So in other words, if Cheshire East decided that it would, with consent, have a combined authority with Cheshire West and Chester, would that then preclude it from being a non-constituent member of the Greater Manchester Combined Authority? I do not think that it would—but I can confirm that in due course, if it helps the noble Lord.

[Lord Warner]

May I suggest that the Minister responds to the perfectly sensible proposition of my noble friend Lord McKenzie that we curtail this set of discussions so that we can make some progress?

[Baroness Williams of Trafford]

I always try to answer noble Lords’ questions from the Dispatch Box. However, in this instance, I take the noble Lord’s point. With the leave of the House, I propose to withdraw Amendment 62 today and return to it at Third Reading.

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Moved by

[Lord Warner]

66: After Clause 9, insert the following new Clause—
“Devolving NHS responsibilities
(1) The Secretary of State may only exercise the powers in section 105A of the Local Democracy, Economic Development and Construction Act 2009 to transfer to a combined authority, or other designated body working in association with a combined authority, responsibilities of any health service body, if he considers that—
(a) it is in the best interests of the population served by the authority in terms of their health outcomes;(b) it will facilitate the discharge of his duties in sections 2 and 4 of the Health and Social Care Act 2012 (duties to improve the quality of health services and reduce inequalities); and(c) it will improve the effectiveness and sustainability of local health and care services. (2) Under subsection (1) an “other designated body” must be a body corporate with a governing body and a chief accounting officer that are able to produce annual audited public accounts and be accountable annually to the combined authority for its performance.
(3) Where there is no other designated authority, the combined authority must have a designated chief accounting officer for the NHS responsibilities transferred to it and must account separately in its accounts for the monies spent on those transferred responsibilities.
(4) In making a transfer of responsibilities and resources in accordance with subsection (1) the Secretary of State shall require a memorandum of understanding on future service intentions, models of service delivery and use of resources to be agreed between NHS England and the combined authority or the other designated body working in association with the combined authority.
(5) A memorandum of understanding under subsection (4) shall—
(a) be for a period of at least five years;(b) be consistent with the Secretary of State’s responsibilities under the 2012 Act, including his Mandates to NHS England;(c) ensure compliance with the regulatory and national service and information standards required of NHS commissioners and service providers; and(d) specify the key health outcomes and improvements to be achieved for the period of the memorandum.(6) The provisions of an agreed memorandum of understanding under subsection (5) shall be incorporated in an order made by the Secretary of State.
(7) An order may not be made under subsection (6) unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament.
(8) Once an order is approved, the Secretary of State may not use his powers of intervention in the actions of the combined authority or other designated body unless they have demonstrated, after due warning, a consistent inability to meet their population’s health needs or to do so within the agreed funding provisions made available to the authority or other designated body.
(9) A combined authority or other designated body working in association with it under the provisions of this section shall publish an annual report on how responsibilities in the memorandum of understanding in subsection (4) have been discharged alongside the published annual accounts.
(10) In this section, “health service body” has the same meaning as in the National Health Service Act 2006.”

[Lord Warner]

Noble Lords may understand why I got up a little impatiently earlier. I move Amendment 66 in my name and in those of the noble Lord, Lord Patel, and the noble Baroness, Lady Walmsley. Let me start by reiterating my support for this Bill and lack of any objection whatever to including the transfer of NHS responsibilities through it. This amendment brings us back to earlier discussions on the arrangements for devolving NHS responsibilities, which led to a very helpful meeting with the Minister and her colleague the noble Lord, Lord Prior, on 6 July, when Howard Bernstein, the Manchester City Council chief executive, and officials from NHS England also joined us. I thank the Minister for arranging that meeting. We clearly got across our main point of concern—that the Bill had failed to address how it dovetailed with NHS legislation, particularly the Health and Social Care Act 2012. I think that the Minister has accepted our main argument on that point, and I am only sorry that I was unavoidably absent when she moved her amendments to try to deal with that issue late on Monday evening, but I have read Hansard carefully.

Rather than ploughing on through the detail of my amendment, I raise a few points of clarification about the Government’s apparent response to the concerns that my noble friend Lord Hunt and I raised at earlier stages of this Bill. As I understand the Minister from reading Hansard, she is saying that Amendment 28 enables NHS responsibilities to be conferred by order on a combined authority instead of a current public authority or for those functions to be exercised concurrently by an existing authority and a combined authority. The order could also impose specified conditions or limitations on that particular deal. That certainly meets my concern that the Bill seemed to have no regard to the 2012 Act, but it raises some other concerns which I shall come to briefly in a moment.

The Minister went on to say on Monday that the power to specify conditions or limitations in orders on the transfer of responsibilities would also give the Secretary of State power to stop the transfer of regulatory and supervisory functions to the local level. However, she then rejected Amendment 31, which rather confused me as it more neatly excluded those functions altogether from Clause 6. She offers the prospect of coming back to this issue at Third Reading. I do not think that we have dealt properly with the issue of regulatory and supervisory functions going down to the local level. I think the Government are trying to stop that, but I am not sure that, by making it an order-by-order process, that meets the case. I have a few other points. I see the Minister wants to jump up, but let me just finish my argument and then she can probably deal with all of them.

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[Lord Hunt of Kings Heath]

My Lords, I just want to raise a specific point about that which the intervention by the noble and learned Lord has raised. Notwithstanding what the Minister said about current accountabilities, my reading of new subsection (4) in Clause 6 is that because the Secretary of State may by order transfer a function and that the new subsection defines the public authority as being a Minister of the Crown or a government department, in some circumstances, the Secretary of State’s power is indeed transferred to the combined authority. That modifies the noble and learned Lord’s position, and that is why it is so important.

[Lord Warner]

Before the Minister responds to that, perhaps I may add to it. I read from her statement on Monday evening, where she makes it absolutely clear that, under Amendment 28, we would be conferring on the combined authority many of the duties, such as,

“the duty to seek continuous improvement in the quality of services, reduce health inequalities, promote the NHS constitution”,

and to,

“seek to achieve the objectives in the NHS mandate”.—[Official Report, 13/7/15; col. 439.]

As I understand it, what she is saying openly and transparently is that those duties get transferred to the combined authority through the order. If someone then says to the Secretary of State, “I don’t like the way health inequalities are going on in Cornwall”, or wherever, presumably, the Secretary of State can say, “Tough. I passed an order through Parliament which enabled me to offload that duty to this group of people for a period of time”.

Is the Minister saying that she did not mean what she said on Monday, or have we got this wrong?

[Baroness Williams of Trafford]

My Lords, I am not going back on what I said on Monday. I think that I made clear on Monday that the accountability and functions of the bodies do not change.

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[Baroness Williams of Trafford]

My Lords, I am trying to be helpful, although I am not sure that I am being very helpful. I indicated to the House on Monday that we are considering with a view, as appropriate, to returning at Third Reading to the question of whether to exclude from functions that can be transferred those regulatory and supervisory functions of national regulators responsible for regulating public authority functions. However, I would add that our consideration is not about how to exclude them on an order-by-order basis but whether to take these regulatory functions out of the scope of the Bill. This would put beyond doubt—whatever devolution deals, including health, were agreed—that the position of the regulators, such as Monitor and the Care Quality Commission, would be untouched, as indeed would the NHS constitution and mandate and all the NHS standards of care and access, as my noble and learned friend Lord Mackay pointed out.

With these perhaps not entirely satisfactory explanations, I hope the noble Lord will agree to withdraw his amendment.

[Lord Warner]

There was a lot of heat but not much light, I suggest, from that debate. I say to the Minister that I am still thoroughly confused as to whether the Government are talking about transferring duties, powers, functions or responsibilities—there is a raft of words that may look as though they are the same, but they are not. On Monday night, the Minister talked about the conferral of duties from the Secretary of State. If, as the noble and learned Lord, Lord Mackay, is suggesting, the Secretary of State’s duties in the 2012 Act are absolute and apply to the whole of England—I think he is probably right—I do not see how they can be transferred under an order-making power in this Bill. We need to come back to this at Third Reading. We need something specific about the NHS in the Bill. It may not be the detail of my amendment, but, at the moment, we are in danger of creating considerable confusion around the world in terms of the NHS and what is intended by the Bill in relation to its responsibilities. In the mean time, on that basis, I beg leave to withdraw my amendment.

Amendment 66 withdrawn.