Health and Social Care Bill

My Lords, I begin by thanking the noble Baroness for introducing these first two amendments in our Committee proceedings. I confess that I approach them with a feeling of some nostalgia: a debate about overarching principles has been a feature of our Committee proceedings on a number of health Bills over the past several years, and I therefore understand entirely why the noble Baroness and other noble Lords opposite should have approached this particular Bill with a similar thought in mind. Amendments 1 and 52, tabled in the names of the noble Lords, Lord Hunt and Lord Beecham, and the noble Baronesses, Lady Thornton and Lady Wheeler, seek to set out the key principles of the NHS. I am grateful to the noble Baroness, Lady Thornton, for explaining them so clearly. As regards their broad intent, I am sure she will be pleased to hear that the Government support most of these principles very warmly. However, despite having confessed to a feeling of nostalgia on the Opposition’s general approach, unfortunately I have to let them down gently by saying that the amendments as they stand will not do. I suggest to the Committee that the various principles listed can be categorised into two groups: the unimpeachable and the unworkable. Unfortunately, even the unimpeachable parts are completely superfluous in legal terms. As we are in the business of creating statute—which, the noble Lords will understand, needs to be devoid of unnecessary verbiage—that does actually matter. Let me start with what might be termed unimpeachable but unnecessary. I hope that I do not need to say again what I have already said on a number of occasions—that the Government strongly support the NHS Constitution. All organisations, including private bodies, already have a legal duty to have regard to the constitution when performing NHS functions or providing NHS services. Included in these principles is that: "““NHS services must reflect the needs and preferences of patients, their families and their carers””." This enshrines the principle that the NHS is there for patients. Under the Health Act 2009, the Government cannot change the principles in the constitution except through regulations. We have already made provision in the Bill for the NHS Commissioning Board and clinical commissioning groups to have regard to the NHS Constitution. Commissioners, therefore, are covered by the Bill. NHS providers, including foundation trusts, are already subject to this duty under the 2009 Act. We are not changing this. I am sure that it is unwitting on the part of the noble Baroness, but this subsection set out in Amendment 1 would actually do something undesirable; which is to restrict the group of people who must have regard to the constitution. At the moment, the duty applies not only to NHS bodies, and others performing statutory functions under the Act, but also to those providing services to the NHS under contract, including private providers. The amendment would appear to have the effect of removing these people from the constitution’s sphere of application. I cannot believe that the noble Lords opposite want this; and I certainly do not. The amendment is also restrictive—again, no doubt, unwittingly—in referring just to the principles and values contained in the NHS Constitution. My noble friend Lord Alderdice was right to point out that it fails to refer to the rights and responsibilities laid out in the constitution, which many might say should not be seen as being of lesser importance. The amendment sends out conflicting, and therefore confusing, signals about the constitution. Subsection (4) states that: "““There must be transparency and openness wherever taxpayers’ money is being spent, and all accountable individuals and bodies should abide by the Nolan principles””." We do, of course, agree that transparency, openness and accountability must be general principles applicable to the NHS. This is why, under the new system, every NHS organisation will have its duties transparently conferred by Parliament, with the Secretary of State retaining ultimate accountability for the NHS. It is why we are providing for the boards of foundation trusts and clinical commissioning groups to meet in public, and it is why we have said that all NHS contracts will be published. As we will discuss over the coming weeks, I genuinely believe that this Bill will provide a far greater degree of transparency than current legislation about what the Government require of the NHS, and what is delivered in return. It is, I suggest, unnecessary to augment these tangible provisions with a generalised statement of principle—and unwise as well, because expressed as an absolute duty, it does not make allowance for those things which should certainly not be open to transparency and openness, such as patient confidentiality. While I fully welcome the due regard paid by noble Lords to the noble Lord, Lord Nolan’s fine seven principles of public life, the suggestion that these must be set out as principles of the NHS for all bodies to abide by is unnecessary because there is already an expectation that all public bodies, including those of the NHS, should abide by the Nolan principles. My noble and learned friend Lord Mackay was right to remind us of something else. To put the Nolan principles into statute would, I am afraid, represent a fast route to a lawyers’ charter, something that the previous Government wanted to avoid when they set up the NHS Constitution. We have already made specific pledges that NHS bodies must abide by the Nolan principles. The Government said in the July document, Developing the NHS Commissioning Board: "““Subject to the passage of the Bill, the Board will be required to have a Chair and at least five non-executive members. Their key purpose will be to ensure effective governance, consistent with Nolan Principles, to hold the Board’s executives to account, and to contribute to the success of the Board’s key external relationships””." In our response to the Future Forum, we said that: "““The authorisation process for clinical commissioning groups will ensure that they have robust governance requirements consistent with Nolan principles and are accountable and transparent. This will not be a one-off test: the NHS Commissioning Board will hold commissioning groups to account for this on an ongoing basis””." It is not necessary to enshrine the Nolan principles in statute. They already have force and will continue to do so. Subsection (2) of the new clause says that NHS services should, "““promote quality, equity, integration and accountability””," which roughly paraphrases some of the principles in the constitution. It also overlaps or duplicates some of the general duties we have set out in the Bill, such as those relating to quality and integration. However, it adds the words ““not the market”” which is not a phrase that one might describe as being of luminous clarity. ““The market”” is a phrase which could mean all sorts of things. I take it that the noble Baroness does not mean that the NHS should never purchase anything at all from a private body or organisation in the marketplace or benefit from improvements in quality which derive from such providers. If she means the market for healthcare provision, as I think she does, that too would bring to a complete halt the process begun in earnest by the last Government which has led to patient choice in elective services. I know that the noble Baroness is not against patient choice, so it would be a pity if an amendment were to put that policy in doubt. The Government are absolutely clear, however, that an American-type free market in health services should not and will not happen in this country. I would simply point to the amendments made in another place which put this beyond doubt. The Bill now explicitly provides that Monitor’s role is to protect the interests of patients and the public, not to promote competition as if it were an end in itself. It also contains a range of safeguards against the use of price competition or any policy that might favour a particular sector of providers. The market has a part to play in the NHS. It can enhance choice and drive up quality. As the noble Lord, Lord Darzi, said at Second Reading: "““The right competition for the right reasons can drive us to achieve more, work harder, strive higher, and stretch our hands and reach for excellence. It can spark creativity and light the fire of innovation””.—[Official Report, 11/10/11; col. 1492.]" Subsection (3) in the amendment refers to the primacy of patient care. We can all agree with the sentiment that underlies this: patients come first. I take the point made by the noble Earl, Lord Listowel, that change has been unsettling for NHS staff in the past. However, as worded, the amendment may have the effect of creating a presumption against any reconfiguration of NHS services, for the simple reason that all reconfiguration brings with it a certain element of inconvenience for patients, however temporary. If the NHS were prevented by concerns over whether it had complied with this duty from reorganising itself financially, it would not be able to extend the scope of the tariff, for example, in response to the creation of a new integrated pathway of care. Improved outcomes for patients were at the heart of our NHS White Paper and at the heart of this Bill: greater choice and patient involvement, continuous improvements in quality, reduced inequalities, and better integration around the needs of individuals are the objectives set out in the Bill with force and clarity. We cannot have a provision that acts as a block on all future change. There was much debate at Second Reading about the need for reorganisation and change. Many noble Lords spoke persuasively about the challenges facing the NHS and the need for services to modernise. I will not repeat those points here. As with competition, I doubt if anyone would argue that restructuring is an end in itself, yet restructuring is sometimes necessary to put in place a sustainable framework that creates the right incentives and opportunities for NHS services to improve. That is what I believe the Bill does and to quote again the noble Lord, Lord Darzi, at Second Reading: "““To believe in the NHS is to believe in its reform””.—[Official Report, 11/10/11; col. 1492.]" I am inclined to give the benefit of the doubt to the Benches opposite by accepting that they have tabled these amendments in good faith. However, as I have explained, they cannot be supported as they stand, not least because their practical effect would be to bring the NHS to a halt. Having said that, we have been clear from the introduction of this Bill—indeed the publication of the White Paper—that we are open to new ideas and improvements as to how the Bill can better meet the vision set for it. That is why we made changes last year following the public engagement and why we had the Future Forum exercise earlier this year. Amendment 1 is a case of clear common ground in its intent. There are a good number of issues contained in the amendment. I have outlined how I feel the Bill already addresses many of them. However, issues as important as this are always worthy of exploring further to see if improvements can be made. We have been doing so and I undertake that we will continue to do so in the light of this amendment. I hope what I have said gives reassurance to the Benches opposite that in terms of intent we are on their side. Nevertheless, I hope in the light of the quite serious flaws in the drafting the noble Baroness will think again and withdraw Amendment 1.