Health and Social Care Bill

My Lords, your Lordships’ Constitution Committee, under the distinguished chairmanship of the noble Baroness, Lady Jay, has raised in a very succinct and clear manner a doubt that has arisen in relation to the constitutional position of the Secretary of State. The word ““provide””, that was in the original duty as an alternative to ““securing the provision of””, has been deleted by the provisions of this Bill. The reason for that is that the Secretary of State has never had an obligation to provide services: he has had an obligation to provide the services or secure their provision. We mentioned earlier, for example, in the very early days of the Secretary of State’s initiation of the health service, the position of general practitioners who, on the whole, did not wish to be employed by the Secretary of State, but were willing to provide services. The arrangement was that the Secretary of State, under the statute, had an option. At times during the existence of the health service, the Secretary of State exercised that option by providing, but in recent years, as I understand it, the only services have been provided by others and the Secretary of State’s operative duty has been to secure the provision of the services. I read out earlier, for those of your Lordships who were here then, the original wording in the 1946 Act. The first part of that has been completely retained in the present Bill. That is the provision that has been operated by the courts to control the activities of the Secretary of State in relation to the health service. The reason that the word ““provide”” has been left out on this occasion is that the Secretary of State no longer in fact provides. I think that it is wise, if we are trying to modify the statutory structure, to do so in such a way that it conforms, to some extent anyway, with what is actually being done. Therefore, it is right to proceed on the basis that the Secretary of State will secure the provision of the services, as he has been under a duty to do as an alternative to provision from 1946 onwards. The Constitution Committee studied this, and raised the question of whether that alteration damaged or altered the constitutional position of the Secretary of State. As your Lordships know, the noble Lords, Lord Owen and Lord Hennessy, proposed that that was a matter that should go to a Select Committee. I opposed that, as your Lordships may or may not remember, and ultimately your Lordships decided that we would go along with the ordinary method of dealing with these matters. However, having made that suggestion to your Lordships in the debate, I felt I should do my best to try to solve the problem that the Constitution Committee had raised. I had a very full consultation with the government advisers—the policy-makers and the lawyers—and I concluded that there was a possible way of solving that ambiguity by making it clear, as it has been, that the Secretary of State’s duty is to secure the provision of services. However, the nature of the health service and what has been the position in the past in relation to the responsibility of the Secretary of State has not depended on matters being provided, but it has been understood that the Secretary of State would be answerable in Parliament. Indeed, he is responsible for providing the budget for the health service. I thought that the way to resolve this ambiguity was to make it absolutely plain in English that all of us can understand that the ultimate responsibility to Parliament would rest with the Secretary of State. This resolves the ambiguity that the Constitution Committee raised. The committee suggested towards the end of its report that one way of dealing with the matter was to go back to the former wording. However, I thought it would be better, if it were possible, to make the position of the Secretary of State absolutely plain—that he should have the ultimate responsibility to Parliament, whatever statutory structures were put in place, for the provision of the service. If you analyse the previous situation, that may not have been the strict legal position—his legal duties enforceable by the court would be to ““secure the provision of””. My amendment probably enlarges on the original situation with regard to the Secretary of State, once he has himself stopped providing. In any case, that is not important. It is important that the situation should now be absolutely clear, and I have tried to do that in my Amendment 4. In Amendment 8, as a complement to what I have just said, I have described the powers of the Secretary of State. These are his functions under the Bill, including the mandate and so on, and his intervention powers. I know that the noble Lord, Lord Owen, is anxious about the extent of these powers and whether they are sufficient—whether the bar for intervention by the Secretary of State is set too high. These matters can be raised in relation to the provisions I have listed. Each is an intervention power, and I thought that it would be useful to specify them at the beginning so that in due course, if the noble Lord comes forward with amendments to alter them, and my amendments receive your Lordships’ approval, the noble Lord’s amendments would reflect back to my Amendment 8, which does not include the intervention powers but is merely a reference to them. My amendments are intended to deal as fully as I can with the question raised by the Constitution Committee and posed by the noble Lord, Lord Owen. They reflect a proper analysis of the position in the light of the present way that the Secretary of State’s powers are exercised—indeed, as they have been exercised for some time. As I said in an earlier intervention, a lot of work was done by Ministers in the previous Government, including the noble Baroness, Lady Jay, at the Department of Health, to move the health service forward under the banner that was set up in 1946. I cherish that banner, and it is clear and concise. I certainly cannot improve on it. My amendments have a bearing on the amendment of the noble Baroness, Lady Williams, and the noble Baroness, Lady Jay, suggested that it might have been convenient for me to speak.