Health and Social Care Bill

My Lords, I am grateful to the Minister for the way in which he introduced this amendment because, as he graciously expressed, this is not really a government amendment but an amendment by the Constitution Committee, which it invites your Lordships to agree. Of course, with a government Minister at the head of those supporting the amendment, I hope that will in itself be unarguable. It is right that the Constitution Committee’s position should be explained a little more in the context of this first amendment in relation to the Secretary of State's responsibilities, and I am glad that it has been put in a group on its own. It is a very significant amendment, and not just because it alters fundamentally the expression of the Secretary of State's responsibilities from the original Bill. It is also significant because of the process by which it has been reached—the Minister has already alluded to this, and I certainly express my enthusiasm for the process—and in which the House has undertaken this work. The terms of the amendment are simple but very powerful: "““The Secretary of State retains ministerial responsibility to Parliament for the provision””—" that is always the difficult word— "““of the health service in England””." It is simple but powerful because, frankly, so is the concept of ministerial responsibility, although we argue about it all the time. It is a basic concept which, as the Minister has said, has been expressed in all NHS legislation, and quite rightly in my view, since the first Act 60 years ago. Without wishing to appear to give a civics lesson to the House, it is worth saying that the Constitution Committee has agreed that, in its terms, individual ministerial responsibility means that Ministers must be accountable and answerable to Parliament for their—and their departments’ and agencies’—policies, decisions and actions. I think that is widely accepted. There is no constitutional distinction between ministerial responsibility, accountability and answerability; they are all aspects of the same constitutional fact. This Bill was worrying, because it was the first in which there was not an explicit provision on political and legal accountability. The Constitution Committee, as the noble Earl said, raised serious concerns about this in the initial report that we gave to the House before Second Reading. There we said that the Bill, if enacted in its present form, risks, "““diluting the Government's constitutional responsibilities””," for the NHS. It is worth reminding your Lordships that those responsibilities which the Minister should retain embrace the accountability to Parliament for the vast public expenditure that the NHS undertakes, and the provision of its multitude of services. At that stage, the Constitution Committee suggested that an easy solution was simply to retain the unambiguous wording which exists in the present 2006 Act. The Government rejected that proposal and on that occasion the noble Earl—rather differently from what he has said today, but I entirely understand his change of position—echoed the Secretary of State, Mr Lansley, in insisting that although the Bill changed the forms and systems of accountability he, the Secretary of State, would continue to have overall responsibility. Those were, in a sense, the terms of the amendment proposed in Committee by the noble and learned Lord, Lord Mackay of Clashfern. The Government also wanted to make it clear that Ministers should not try to micromanage the health service and that primary responsibility for service provision under their changes would be devolved to independent organisations. Again, the Minister has referred to that this afternoon. However, as we know, it became very clear during Second Reading and the subsequent Committee that many noble Lords, in every part of the House, stood with the Constitution Committee in its anxieties. Although they may not have shared them exactly, they did have their concerns. As the noble Earl, Lord Howe, has rightly said, he very helpfully suggested that this should be taken off the Floor of the House, and has tried very strongly to try to reach the consensus which we have, I hope, come to before this next stage of the Bill. I pay tribute to him for that. The Constitution Committee, as the noble Earl said, was invited formally to look at the issues again. We duly did so, and our second report was published just before Christmas. In it, we continued to argue the constitutional necessity for an explicit reference to ministerial accountability to be in the Bill. We therefore propose the wording and concept of Amendment 5, which is before your Lordships. I hope that those in the House who have had the time to read it have found it useful to look at Appendix 1 of the December report, which sets out our understanding of ministerial responsibility as it applies to the duties of Secretaries of State. Although I hope it will not take long, perhaps I might quote somewhat extensively from that appendix because it covers some of the points which have been raised by noble Lords in debate, and which the Government relied on until they decided to accept this amendment. The appendix says: "““It is essential to bear in mind that (i) what ministers are constitutionally responsible to Parliament for and (ii) what ministers themselves do may not be the same. The distinction matters in the context of the Health and Social Care Bill for the following reason: removing from the Secretary of State the duty to provide health services does not mean that the Secretary of State no longer remains constitutionally responsible to Parliament for the provision of health services. Likewise, a provision to the effect that the Secretary of State remains constitutionally responsible to Parliament for the provision of health services does not mean that the Secretary of State must himself provide the services. It is because of a failure to bear this distinction in mind that much of the confusion about this matter has arisen””." One other important point in the appendix is worth repeating. In addition, "““there is a constitutionally significant difference between ministerial responsibility to Parliament and the accountability of a public body (such as the NHS Commissioning Board)””—" as it will be— "““to a minister. In constitutional terms the latter””—" that is, the new independent bodies— "““can never be a substitute for the former””—" that is, the responsibility to Parliament—because in the latter case the body in question does not have any accountability or reference to Parliament. That clearly sets out the problems which the Constitution Committee felt expressed an answer to the problems that have arisen all around the House. The noble Earl, Lord Howe, has already explained why the Government have decided to support Amendment 5. Again, I must pay very warm tribute to his flexibility and availability during all the meetings and exchanges of letters that have taken place since the Committee stage. The noble Earl has been enormously generous with his time, both to the Constitution Committee and to individual Members. Most importantly, he also made it possible for the Bill team officials from the Department of Health and parliamentary counsel to hold discussions with the legal advisers to the Constitution Committee. I thank those legal advisers, Professor Richard Rawlings and Professor Adam Tomkins, for their sterling work on the constitutional detail of all this and for formulating various alternative proposals before the committee itself decided to agree Amendment 5, which is tabled today. I was delighted when on 1 February, after several iterations of the content and wording of this amendment since Christmas, the Minister wrote to all Peers saying that the Government supported not only the spirit but the letter of the Constitution Committee’s recommended change to Clause 1. I notice that the Minister used the expression ““the House of Lords at its best””. I am always wary of our tendency to be self-congratulatory, but the process of achieving consensus on this important amendment has been an example of House of Lords effectiveness. It demonstrates a useful extra role for Select Committees, and I hope that that can be used again in different contexts. It has also demonstrated the virtue of informal cross-party analysis, discussion and agreement. As we all know and as my noble friend Lady Thornton has rightly drawn attention to again today, this is an extremely controversial Bill with an unhappy history and possibly an unhappy future. However, on the fundamental issue of maintaining ministerial responsibility to Parliament for our biggest public service, Amendment 5 has achieved that. To put it in shorthand terms, it has at least made it less likely that the NHS will become simply a giant quango. I will not be surprised if my noble friend Lady Thornton on the Front Bench says again that nothing can be done to make the Bill acceptable, but in the spirit of improvement I commend Amendment 5 to the House.