Health and Social Care Bill

I appreciate the noble and learned Lord’s intervention, which is very powerful. But the fact remains that as he said in relation to Amendment 1, those original words are both legally enforceable and very clear. That is in a sense our point. Although there is political capacity to put the points that he has put in his new Amendment 4, about making it ultimately responsible to Parliament, as he said himself on Amendment 1, the present wording is clear, legally enforceable and very straightforward. Two things are legally difficult, apart from the political and constitutional relationship of the Secretary of State to Parliament and his accountability for the budget, which, again, the Constitution Committee drew attention to. This is in paragraph 9 of our report, which I may quote deliberately, because I would be very interested in the Minister and the noble and learned Lord’s reaction. Under the existing legislation, the words, which are the words in the amendment of the noble Baroness, Lady Williams, are always read together with the capacity which is in Section 3(1) of the 2006 Act, replaced in this Bill by Clause 10, which enables that provision of services. We can discuss at greater length whether they are adequate in the noble and learned Lord’s Amendment 8, and whether they are read together in the courts. Our paragraph 9 states that, "““the courts have made it clear that the Secretary of State’s duties in these sections are to be read together””." In the leading case, which was R v North and East Devon Health Authority, colloquially known as the Coughlan case, the noble and learned Lord, Lord Woolf, when he was Master of the Rolls, appeared in the Court of Appeal. He ruled that, for example, the Secretary of State in Section 1, "““has the duty to continue to promote a comprehensive free health service and he must never, in making a decision under section 3, disregard that duty””." The two are to be read together. You cannot dissociate the responsibility which has been in all of the Acts since 1946 from that duty to provide. In that sense, there is a question to both the Minister and the noble and learned Lord how they would resolve that problem, even if the wording in the noble and learned Lord’s Amendment 4 does cover some of the questions about responsibility to Parliament.