Health and Social Care Bill

My Lords, I want to associate my initial remarks entirely with what my noble friend Lord Newton has just said. The noble Lord, Lord Owen, has given the Committee good advice. I have sat through the whole of today’s debate, as have most of us, and it has been interesting to note how much we have learnt about this Bill simply by talking to and listening to each other. I share the view of the noble Lord, Lord Owen, that the learning process has only just begun and is not nearly complete, so it would be foolish to rush to judgments. I would say to my noble and learned friend Lord Mackay that he knows there is no one I hold in higher regard than him. The formulation in his amendment is extremely helpful because it encapsulates the legal realities. So if I had to judge on the basis of the legal realities, I think I would favour my noble and learned friend’s amendment. On the other hand, I should say to the noble Baroness, Lady Williams, that the strength of her amendment lies in the fact that it has 60 to 70 years of continuity. If we are looking for the constitutionally more helpful amendment, it may be that of the noble Baroness. I say that also conscious of the fact that out there, as we keep telling each other, there is a degree of nervousness about this Bill. Some of it is well founded and some of it is scaremongering, a word I have used before. But there is a sense of unease. The continuity of 70 years of using the same language might help to address the issue. That is why I say that constitutionally I lean towards the noble Baroness, Lady Williams, while legally I lean towards my noble and learned friend, and I do not want to make a choice at the moment. Maybe it is partially because the noble Lord, Lord Newton, and I spent so many years in the other place but, as he said, I too believe that the reality is that out there £128 billion is really rather a lot of money. The idea that when somebody threatens to close the Peterborough Hospital my former constituents are going to settle for the chairman of a quango, no matter how illustrious, experienced or wonderful he is—I do not know the gentleman but I am sure that he is all of those and a whole lot more—is just not in the real world. I tell you that as somebody who can still fairly clearly remember what it was like to be a Member of Parliament. Indeed, I can remember fairly clearly what it was like to be the Health Minister and it is still not in the real world. The noble Lord, Lord Warner—I promise not to keep doing this—was very helpful to this Committee because he pointed out the Secretary of State’s powers. Unusually, I am not sure my noble friend Lord Newton was quite right when he used Monitor as an example. He was right in the technical sense that the previous legislation set up Monitor apparently free. As my noble friend said that I thought about all the newspaper stories I have read recently about how PFI is falling apart and the mounting debt Monitor is having to deal with because the PFI arrangements for foundation trust hospitals were simply not in the real world. The idea that the Secretary of State for Health is not finding some way to intervene with Monitor—he would have to if Monitor wants more money to offset that debt—shows that the reality of what happens on the ground is extremely important. I say to my noble friend the Minister that there is one other aspect of this on which, as a simple Belfast boy, I am confused. The NHS Commissioning Board has legal status. As the noble Lord, Lord Warner, reminded us, the Secretary of State gives it a mandate and then it has a legal status. Does that mean that the Secretary of State’s lawyers have to relate to the NHS Commissioning Board’s lawyers if the Secretary of State wants to have some involvement during the course of the year—even if it is only in the context that the noble Lord, Lord Owen, does not like of emergency or failure? We need to have a much clearer grasp of the practical realities of the consequences of this Bill. Whatever the intellectual framework and the ideas that coherently come together to provide esoteric new arrangements, this Bill has to work in the real world. This Committee needs to be encouraged by my noble friend to believe that the Secretary of State is going to be at the heart of making this Bill work in practice.