Health and Social Care (Re-committed) Bill
Debate between Paul Burstow and Owen Smith(12 years, 8 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Paul Burstow
I am grateful to my hon. Friend for that intervention. If he listens carefully to what I am saying, he will hear that I am developing an argument that will go towards answering that question. Rather than trying to answer it in a very small way now, I would rather answer it in a comprehensive way through reference to what I had planned to say to the House.
As I was saying, hon. Members should ask themselves how the Secretary of State would be able to wash their hands of the NHS while simultaneously being legally required to deliver on all the duties I have just outlined. Crucially, the Secretary of State also retains the duty to promote a comprehensive health service, which dates from the Act that founded the NHS in 1946 and has been unchanged by this Bill. The Secretary of State will also have the duty to secure that services are provided for that comprehensive health service and will have failed in that duty if they are not.
The Secretary of State also has the ability—the obligation, in fact—to set goals and priorities for the NHS through the mandate. That will set out what the Secretary of State wants the NHS to deliver, which will be updated every year. It will be widely consulted on and Parliament will scrutinise it, for the first time ever giving Parliament a detailed say in what the NHS is tasked to deliver.
The Secretary of State has further powers in addition to the mandate to impose standing rules by which the NHS commissioning board and the clinical commissioning groups must operate, which will be subject to scrutiny and control by Parliament—a power Parliament does not currently have. What is changing, however, is the Secretary of State’s relationship with the NHS in terms of the role of Ministers in the commissioning and provision of services to the NHS. The Government believe that it should not be the job of Ministers to provide directly or commission NHS services, either. It should be the role of front-line professionals, who should have the freedom to focus on driving up quality of care, free from interference by Ministers in operational decisions—something that all parties in this House have said that they want to see.
We understand that all Government legislation has a responsibility to foresee the unforeseeable, to ask questions about the worst-case scenario and to ensure that the answers stand up to scrutiny. That is why this Bill contains a number of back-stop provisions to make it absolutely certain that any future Secretary of State will not be able to turn a blind eye to failings of service provision, so we have ensured that the Secretary of State has the power to step in if the board, or Monitor, is failing to deliver on its duties, including any duties imposed on the board through the mandate.
Finally, in the event of a significant emergency such as a pandemic, the Secretary of State will have powers to direct any commissioner or provider of NHS services.
Owen Smith (Pontypridd) (Lab)
In the event where there is not an emergency, will the Minister confirm that under the new provisions the Secretary of State will not have the power, as he has, to direct a commissioning group to do what he thinks is appropriate for the people in that area?
Paul Burstow
No, he will not have powers of direction. Of course, powers of direction are not subject to any form of parliamentary scrutiny and can be issued by a Secretary of State by fiat. In future, this House, through regulations, will be able to look at and agree—or not—standing rules that in most effects will have the ability to direct clinical commissioning groups and the NHS commissioning board on a wide range of matters. I direct the hon. Gentleman to clause 17, which sets those out at great length.
Paul Burstow
My hon. Friend the Member for Bradford East (Mr Ward) is right. That is why the outrage was expressed as it was. This part of the Bill and the schedule have the same effect as the Public Bodies (Admissions to Meetings) Act 1960. That Act does not say in a blanket way that every meeting must be held in public. It allows local authorities to exercise judgment about confidentiality. We are applying the same principles in that regard in exactly the same way as to PCTs, with the additional provision that for the first time all these arrangements must be published.
Owen Smith
I am grateful to the Minister for that further intervention, just as I assume that he is grateful for the intervention of the civil servants in the Box, who must have passed him a note. Clearly, he was not aware of that earlier. When he said that CCGs must meet in public, he was under the impression that that was the case.
Paul Burstow
Is it still the Opposition’s policy to seek a division between the role of commissioning or purchasing health services and the provision of those services? Does the hon. Gentleman believe in that split?
Owen Smith
Yes. The current situation is clear: the Secretary of State has a legal duty placed upon him in the legislation to secure and provide—not just to promote—a comprehensive health service in this country, and to issue direction to PCTs and SHAs, such that they so do. Those two crucial aspects of the current legislation are being changed in the Bill, and I intend to discuss them in a moment.
In version 1 of the Bill, the Government were less coy, because it actually excised section 1 of the original 1977 Act. After the deluge of criticism, however, they decided that they needed to put it back in, making it explicit, as they put it, that the Secretary of State will be responsible, as now, for promoting a “comprehensive health service”.
Section 1 of the Act was duly reinstated, as was the duty to promote, but there was a critical change, in clause 1(2) of the new Bill, which diluted the traditional duty to provide and secure. Ultimately, it placed a duty on the Secretary of State only to
“exercise the functions conferred by the Act so as to secure that services are provided”.
I shall come on to the reason why that is significant, but equally significant and allied to it was the retention—against the advice of Opposition Members and many others—of clause 10, which amends section 3 of the 2006 Act, thus keeping commissioning bodies, not the Secretary of State, as the parties with a legal duty to provide health care in England.
The net effect of those changes—despite what the Minister said earlier, and despite what the Secretary of State has said on several occasions, including notably on Second Reading—is no change. The Secretary of State is still, as the Minister put it, washing his hands by divesting himself not of the NHS but of a direct duty to provide a comprehensive health service. That is the distinction which the Minister failed to make today. The Secretary of State is palming off that precious duty, which has been placed upon successive Secretaries of State, and handing it on, via the mandate, to a quango and to unelected commissioning bodies.
Owen Smith
With respect, there is not a legal duty on the Secretary of State to provide, as there has been in successive health Bills. When Bevan talked about hearing the bedpan dropped on the ward in Tredegar, he did not mean that he wanted to pick it up. [Interruption.] I do not know whether the Secretary of State wants to listen. Bevan did not mean that it needed to be picked up by the Secretary of State, but he certainly meant that he would like to be able to direct those responsible operationally for picking it up so to do.
The critical difference in this Bill is that the Secretary of State will divest himself of not only the duty to provide that service, but the power to direct the operational parts of the NHS, save for—[Interruption.] The Minister is waving his head, nodding or something; I know what he is going to say. Under the Bill, save for in cases of crisis or emergency, the Secretary of State will not have responsibility for running the day-to-day operations of the NHS.
Paul Burstow
The hon. Gentleman is wrong again. Unlike the previous Government, who were happy to have directions that did not have any parliamentary accountability, this Government are putting in place the ability, through regulations, to set the standing rules for the NHS, which, as set out clearly in clause 17, include all the issues that the hon. Gentleman is concerned about and show that the Government are committed to ensuring that there is a comprehensive health service.
Owen Smith
As the Minister has just confirmed by omission, there will be no power to direct and therefore no power to deliver absolutely a comprehensive, universal health service as we have come to expect and understand it. Those are the key differences. [Interruption.] The Minister can shake his head, but that is an accurate interpretation of what has happened.
Owen Smith
I am grateful to my hon. Friend for that intervention. As she will know, the Government have no mandate for any of these things—they were not in the manifesto, the election or the coalition agreement. There is a mandate, but not one to effect these sorts of changes. That is another disgrace given how large the changes are.
I am going to move off this issue, but I will conclude by reading back to the Government their own words, which make it absolutely clear what they are doing in getting rid of direction. Paragraph 66 of the explanatory notes states:
“Currently, the Secretary of State is directly responsible for providing or securing the provision of all health services as set out in the NHS Act, a function which is largely delegated to Strategic Health Authorities and Primary Care Trusts…However, the new commissioning structure proposed by the Bill means that this would no longer be the case.”
The explanatory notes also state that
“functions in relation to the health service are conferred directly on the organisations responsible for exercising them”.
Effectively, the Secretary of State will move on and his focus will shift to public health.
Paul Burstow
I want to be absolutely clear about this. The hon. Gentleman is happy with an arrangement that allows the Secretary of State to make directions to the NHS that do not require him to come to this House to account for his actions—is that correct?
Owen Smith
The Minister has not said it before in a public realm of which I am aware. He certainly did not say it in the Public Bill Committee, all 40-odd sessions of which I feel I sat through. The Minister knows that the issue is crucial, because the Future Forum that he commissioned said so. Indeed, it said that
“one of the most widely voiced criticisms of the proposed changes was a deeply felt concern at the risks to healthcare education and training in England posed by the fast pace of change.”
The Government responded by saying:
“we will introduce an explicit duty for the Secretary of State to maintain a system for professional education and training as part of the comprehensive health service.”
We are still waiting. What will that duty look like? [Interruption.] The Minister says “We have said that we are going to do it”, but here we are, eight months and 1,500 amendments later. How long must we wait? Are we sure that we will see the duty introduced in the House of Lords? Are we positive about that? I must say that I am not certain about it.
Paul Burstow
The shadow Minister rarely criticises the Government for telling the House again what they said in the response to the Future Forum, which is that we would introduce that explicit duty. We will introduce it in the House of Lords, as I have told the House today. We are committed to doing so, having listened carefully to the concerns of NHS professionals.
Owen Smith
The very simple question to be asked is “Why the delay?” Why could the Minister not have introduced it earlier? We have known about the problem for eight months and more. The Secretary of State, who has been keen on changes such as this for a long time, must have given some thought to what he was going to do about staff training and work force planning in the NHS.
Health and Social Care (Re-committed) Bill
Debate between Paul Burstow and Owen Smith(12 years, 8 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Paul Burstow
These Government amendments will make important changes to extend Monitor’s intervention powers over all foundation trusts until 2016. This would give additional time for foundation trusts’ governors to build the capability that they need to be able to hold their boards to account.
As my right hon. Friend the Secretary of State has described, through part 3 of the Bill, Monitor as the sector regulator would have permanent intervention powers over all providers, including foundation trusts. These will allow it to fulfil its duty to protect and promote the patient’s interest and its functions include supporting commissioners in securing continuity of services. That is why we believe that Opposition amendment 17 is not only ineffective, based as it is on non-existent terms of authorisation, but also redundant.
My right hon. Friend the Secretary of State has already confirmed that we agree that it is essential that Monitor, as health sector regulator, can take action to secure patients’ continued access to NHS services, and our plans ensure this. Monitor would have powers under its licensing regime to require a provider to take specific actions if it gets into difficulties. These will be effective safeguards to protect patients’ and taxpayers’ interests, and will support commissioners in securing continued access to services that patients depend on for their care. I hope, therefore, that the hon. Members who tabled the amendment will not press it.
However, the NHS Future Forum raised concerns about the current readiness of foundation trust governors to take on the strengthened role that the Bill provides for them in holding foundation trusts to account as autonomous NHS providers. In response, the Government have agreed that Monitor’s intervention powers should apply to all foundation trusts until 2016, to allow time for their governance arrangements to become fully effective. The amendments provide for the transitional powers to continue until 2016. They also make corresponding amendments to clause 117 on licence conditions supporting use of the powers, and remove clause 116, about identifying which foundation trusts would be subject to the powers.
The amendments do not change the nature of the transitional intervention powers set out in clause 117. Monitor will continue to have the power to remove or suspend members of the board of directors or members of the council of governors. Monitor would also be able to direct a foundation trust to do or not to do specific things within a specified timetable. These powers are similar to those currently available to Monitor in its role as foundation trust regulator, and would allow Monitor to continue to protect the taxpayers’ interest in foundation trusts.
The powers go beyond those that Monitor would have over all providers, under part 3, as sector regulator. They will help to ensure a smooth transition from the current arrangements for NHS foundation trusts. The amendments would allow the Secretary of State to seek further parliamentary agreement to extend the powers beyond 2016 for all or some foundation trusts for up to two years at a time. That power could be used, for example, if there was a significant remaining concern about the governance of some foundation trusts.
If it were decided to extend the powers for some, but not all, foundation trusts, Monitor would be required to go through a process similar to that originally envisaged in clause 116. It would have to publish the criteria that it would use to decide which foundation trusts would remain subject to its intervention powers. Those criteria would be subject to consultation and would require approval from the Secretary of State. The amendments will ensure that the transitional regime proposed in the Bill provides a more secure safety net while foundation trust governors develop the skills and capabilities necessary to hold their boards to account.
The amendments would enable Monitor to rectify avoidable difficulties at a foundation trust while foundation trust governance arrangements developed, ahead of normal regulatory intervention through the licensing regime. They also provide for the extension of the powers, should that prove necessary. I commend them to the House.
Owen Smith
I do not intend to take long, because we must get on to the important next group of new clauses and amendments, which is on the private patient cap; there will be huge interest in that outside this place, and there is far too little time to discuss it. I shall say right at the outset that we will not press amendment 17, because we accept that, as the Minister said, it is effectively made redundant by other amendments that have been tabled.
In some respects, the amendments in the group before us tell the story of the Bill in microcosm. Throughout the progress of the Bill, the Government have responded in two ways. One has been to bolt endless obfuscation and compromise on to the Bill to obscure its true intentions. There was clarity at the outset, in the Bill’s first iteration; it clearly aimed to break up a publicly owned, collaborative NHS and replace it with a competitive, market-driven NHS. The Government have sought to obscure that throughout the Bill’s progress, and have done so relatively effectively. Certainly, more gullible Government Members, perhaps even including the Deputy Prime Minister, have bought into the double-speak about this now being a question of preventing anti-competition, as opposed to promoting competition, but we Labour Members still do not buy that.
Nor do we buy the idea that the other amendments that we have considered today add clarity. In truth, they add to the confusion—the chaos, indeed—that will follow the implementation of the Bill. As the Minister has outlined, the clauses that we are considering effectively extend Monitor’s existing compliance and regulatory roles over foundation trusts to all FTs through to 2016. That is what the Future Forum recommended to Ministers, but they did not do that last time, although they did get rid of the arbitrary 2014 deadline that they had introduced. They are now going a step further and extending Monitor’s compliance functions. That might not be such a bad thing, and perhaps many people will agree with the idea; certainly the Future Forum will. The trouble with it, of course, is that it extends the critical conflict of interest that is at the heart of Monitor’s role.
There is a conflict between what is clearly Monitor’s principal function—as an economic regulator, designed to prevent anti-competitive behaviour and facilitate the exit of providers, such as hospitals, from the marketplace—and its compliance role, which is ostensibly about allowing FTs to flourish, and making sure that they do not fail. How will the Government deal with that apparent contradiction? To use their own words as set out in the original explanatory notes, how will they
“mitigate and manage potential conflicts of interest”
between the transitional functions and Monitor’s new functions? Well, rest easy, because the Government have made a very simple suggestion as to how Monitor should square that circle, which I am sure all Members will find satisfactory, as I do. Clause 62(3), subtly amended by Government amendment 89, explains that Monitor must simply
“ignore the functions it has under section…117 when exercising…its functions”
relating to competition, price-setting, or the licensing of NHS services.
So there we go: in Monitor there are to be Chinese walls, as Ministers colourfully put it in Committee. Monitor retains its role in trying to keep FTs from failing, but it also takes on a role in exiting them from the market and helping other providers—Bupa, perhaps, or Helios, which we know are sniffing around the Department of Health right now—to step into the breach. Chinese walls, competition and confusion: those are the key words for this botched Bill.
Question put and agreed to.
New clause 3 accordingly read a Second time, and added to the Bill.
New Clause 4
Orders under section [Duration of transitional period] that apply to only some trusts
‘(1) Where the Secretary of State proposes to make an order under section [Duration of transitional period] in reliance on subsection (2)(b) of that section (“a section [Duration of transitional period](2)(b) order”), the Secretary of State must notify Monitor.
(2) Monitor, having received a notification under subsection (1), must set the criteria that are to be applied for the purpose of determining to which NHS foundation trusts the order should apply.
(3) Before setting criteria under subsection (2), Monitor must—
(a) consult the Care Quality Commission and such other persons as Monitor considers appropriate, and
(b) obtain the approval of the Secretary of State.
(4) If the Secretary of State approves the proposed criteria, Monitor must—
(a) publish the criteria,
(b) determine, by applying the criteria, to which trusts the order should apply,
(c) notify the Secretary of State of its determination, and
(d) publish a list of the trusts concerned.
(5) If the Secretary of State does not approve the proposed criteria, Monitor must propose revised criteria; and subsections (3)(b) and (4) apply in relation to the proposed revised criteria as they apply in relation to the criteria previously proposed.
(6) If, having received a notification under subsection (1), Monitor proposes to set criteria the same as those it set on the last occasion it received a notification under that subsection, it need not comply with subsection (3)(a).
(7) A section [Duration of transitional period](2)(b) order—
(a) must apply to all the trusts that are determined under subsection (4)(b) as being the trusts to which the order should apply (and to no others);
(b) may specify the trusts to which it applies by reference to their inclusion in the list published under subsection (4)(d).
(8) Subsection (9) applies where —
(a) a section [Duration of transitional period](2)(b) order is in force at a time when there is in existence an NHS foundation trust authorised after 1 April 2014, and
(b) the initial two-year period in relation to that trust has yet to come to an end.
(9) Monitor must—
(a) determine, by applying the criteria it applied under subsection (4)(b), whether section 117 should continue to have effect in relation to the trust after the end of the initial two-year period,
(b) notify the Secretary of State of its determination, and
(c) publish its determination.
(10) If Monitor determines under subsection (9)(a) that section117 should so continue to have effect, the trust is to be treated as if it had been authorised on or before 1 April 2014 and as if the order referred to in subsection (7)(a) applied to it; and section [Duration of transitional period] (5) is accordingly to apply in relation to the trust.
(11) If Monitor determines under subsection (9)(a) that section 117 should not so continue to have effect, section 117 ceases to have effect in relation to the trust immediately after the end of the initial two-year period.’.—(Paul Burstow.)
Brought up, read the First and Second time, and added to the Bill.
New Clause 5
Repeal of sections [Duration of transitional period] and [Orders under section [Duration of transitional period] that apply to only some trusts]
‘(1) Sections [Duration of transitional period] and [Orders under section [Duration of transitional period] that apply to only some trusts] are repealed immediately after section 117 is repealed; and in consequence of that—
(a) in section 62(2)(a), omit “or under sections 117 and [Orders under section [Duration of transitional period] that apply to only some trusts] of this Act (imposition of licence conditions on NHS foundation trusts during transitional period)”,
(b) omit section62(3),
(c) in section 94(4), after paragraph (a) insert “and”,
(d) in section 94(4), omit paragraph (c) and the preceding “and”, and
(e) omit section 302(5)(e) and (8A).
(2) This section is repealed immediately after sections [Duration of transitional period] and [Orders under section [Duration of transitional period] that apply to only some trusts] are repealed.’.—(Paul Burstow.)
Brought up, read the First and Second time, and added to the Bill.
New Clause 19
NHS Foundations Trusts: phasing out of provision of private health care
‘The Secretary of State must make regulations which provide for NHS Foundation Trusts to be prevented from providing services other than those of the health service in England within three years of Royal Assent of this Act.’.—(Andrew George.)
Brought up, and read the First time.