Health and Social Care Bill

My Lords, this amendment is tabled in my name and those of the noble Baronesses, Lady Jay and Lady Thornton, and the noble Lord, Lord Patel. It is an absolutely central and crucial amendment. I say right away that I am consumed with envy by the success of the noble Lords, Lord Walton of Detchant and Lord Patel, in getting the Government to table an amendment restoring the duties of the Secretary of State in the area about which they were concerned. I only wish that the same thing might happen as regards my amendment. It is interesting that even in the course of a long debate about education and training we kept coming back to a consistent ambiguity about exactly what the powers and duties of the Secretary of State are, particularly with regard to the possibility of failure. I am afraid that this set of amendments covers some of the same ground. I will do my very best not to repeat what has already been said. The whole point of Amendment 3 is to restore the wording that occurred in the original 2006 Act to indicate clearly what are the duties and accountability of the Secretary of State. There are two reasons for that. First, many of us wish to ensure that what was beautifully described by the noble Lord, Lord Hennessy, as institutionalised altruism—his description of the National Health Service—should survive and continue. In order to retain the trust of the public who care so much about it we have to make absolutely clear that the Secretary of State’s ultimate responsibility is not impaired. There is another reason for that, not just the fact that so many members of the public believe in the NHS; that is, we need to retain their trust while the huge changes that are envisaged to make the National Health Service successful for the future are carried out. We need to do that by indicating that there is no reduction in the ultimate powers of the Secretary of State. There is also a key constitutional issue. I am sure that the noble Baroness, Lady Jay, will speak to this so there is no point in my going into detail now, but the constitutional issue concerns—to put it in a sentence—exactly who is accountable and responsible for £120 billion of taxpayers’ money which is spent on the National Health Service and on health more generally. The remarkable thing about the NHS, which has been mentioned by many Peers, is that it is taxpayer funded, and because it is taxpayer funded it is in many ways much more efficient and effective than many of its competitors in other parts of the world. Therefore, it is incumbent on Members of both Chambers of Parliament to retain accountability to the people of England for this huge sum of money through Parliament and the Cabinet. That means we have to make it clear that that channel passes through the Secretary of State. The brilliant and concise report of the Constitution Committee chaired by the noble Baroness, Lady Jay, traced its concerns about ambiguities and uncertainties with regard to the duties and powers of the Secretary of State. The noble Baroness will express this matter better than I can, but I simply want to draw the House’s attention to the concluding remarks not of the Constitution Committee but of the Government themselves in responding to the Future Forum’s concerns about accountability. The Government state: "““As the Future Forum’s report highlights, some people are concerned that the Bill could weaken the Government’s accountability for the health service””." They go on to say: "““There have even been some fears that the core principles of the NHS could be weakened””." Then, encouragingly, the Government went on to say that, "““the Forum is right to point out that the current drafting of the Bill is not clear enough, and we will amend it””." I am responding to that promise by the Government in the hope that we can as a Committee ensure that that amendment takes place in ways that we regard as satisfactory. I wish to say a few words about the problems regarding my amendment. There are clear areas where we cannot be absolutely sure whether the Secretary of State accepts responsibility. One of those was referred to by the noble Lord, Lord Owen, when he talked about the absence of a failure regime. I think that many of us are profoundly concerned that the failure regime will apparently not ultimately be the direct responsibility of the Secretary of State. There are two other areas to which I referred briefly earlier. I will simply remind the Committee of them without mentioning the detail again. The first of those concerns what happens when there is a conflict between the major quangos that have been established—the Commissioning Board and Monitor. Another concerns what happens in a key medical emergency and who is ultimately accountable for the handling of it. I suggest that the public will not accept anybody other than the Secretary of State, with the possible exception of the Prime Minister, to be responsible in the event of a national emergency. However, the Bill indicates over and over again that the position is not totally clear. We are therefore proposing that the wording recommended by the Constitution Committee should be included in the Bill to lay to rest these concerns and ambiguities. However, the noble and learned Lord, Lord Mackay of Clashfern, has indicated in his Amendment 8 another possible wording that would also clear up the ambiguity and obscurity to which I refer. The Committee may indicate which of these amendments it is inclined to support. I, for one, will not stick with the wording in mine if the Committee feels that another amendment more correctly reflects the concern that I have expressed. However, it is absolutely crucial to see Amendment 3 and, with respect, Amendment 8, in the context of Clause 4, the so-called ““autonomy clause””—it is sometimes described as the ““hands-off”” clause—which limits what the Secretary of State can do to only the most major and significant areas. I believe that that goes much too far in reducing what the Secretary of State has to do if we are to retain parliamentary and ministerial accountability. My colleague and friend, the noble Lord, Lord Marks of Henley-on-Thames, will speak in detail about the autonomy clause. Therefore, I shall not talk about it further. However, if we are to clear up the difficulties, your Lordships must look not only at these amendments but at the autonomy clause, which I believe has to be taken out of the Bill. I beg to move.