Health and Social Care Bill

My Lords, first, I offer my sincere apologies to the House for being delayed. I was also thrown by the fact that that the first two amendments were not moved. I am sorry about that. I am grateful to my friend, the noble Lord, Lord Warner, for moving the amendment in my absence, and I join absolutely in his comments. I shall try to cover some other points. My name is also on the amendment tabled by the noble Baroness, Lady Williams, and I support that too. As I interpret it, under the clause, as long as the Secretary of State does not think that it is inconsistent with the interests of the NHS, he or she must act positively to allow any other person exercising health service functions to do so in a way that that person thinks appropriate. Although the Secretary of State keeps some form of oversight, it is the views of other persons and bodies delivering health services on how those services are to be delivered that are important. This duty would therefore require the Secretary of State, when considering whether to place requirements on the NHS, to make a judgment. The challenge for the Secretary of State would be to justify why these requirements were necessary. Does this mean that the Secretary of State has the power to act only when the steps to be taken are really needed or essential, rather than because he or she thinks that something is desirable or appropriate? He or she would have to demonstrate why no other course of action will be followed. Is that a high test to meet on the part of the Secretary of State? What happens if the Secretary of State uses his or her powers to impose requirements on commissioning boards—consortia, for example? Would there be a judicial review challenge from a consortium that opposed the requirements on the basis that they infringed the principles of autonomy and could not be justified as necessary or essential? This approach replaces the power that the Secretary of State currently has to make directions. It is the same autonomy duty that is placed on the NHS Commissioning Board, and it is of course the board that will have closer contact with commissioning consortia than will the Secretary of State. This clause gives powers of autonomy way beyond any duty that the Secretary of State would have. I know that the excuse will be given that this autonomy is required to prevent any micromanagement of the health service by the Secretary of State, but there are no examples of micromanagement by the Secretary of State—I have no doubt that I will hear of them if there are any. Another excuse will be made that this autonomy is required to allow the NHS Commissioning Board and commissioners to reconfigure services. I have spoken before and I am pro reconfiguring services—I think that they do require reconfiguration—but that does not require this degree of autonomy and powers to be given away by the Secretary of State. Like my noble friend Lord Warner, I hope that the Minister will at least indicate that this clause needs amending or abandoning.