Health and Social Care Bill

My Lords, perhaps I may explain why I support the Government’s amendments on the autonomy clauses to which I have added my name—that is, Amendments 8, 9, 53 and 54. The autonomy clauses were at the heart of the Government’s consultation with other noble Lords about the Secretary of State’s duties. During Committee and thereafter, at the very helpful discussions that we have had with my noble friend the Minister and with Peers across the House and, indeed, at the meeting of lawyers in which I took part with my noble and learned friend Lord Mackay, the noble and learned Baroness, Lady Scotland, and the lawyer advising your Lordships’ Constitution Committee, a substantial consensus was reached. The concerns that we sought to address, which I regarded then and still regard as significant, were twofold. The first was that I believed there would be an inherent conflict between, on the one hand, the Secretary of State’s duties under Clause 1 to promote a comprehensive health service and to exercise his functions so as to secure services and, on the other hand, an unfettered duty to promote the autonomy of others. Secondly, if the Bill went unamended, there would exist a risk that a Secretary of State who was unwilling to intervene when things went wrong would be handed a justification for inaction. Such a hands-off Secretary of State could say, ““I will not intervene because I am bound by my duty to promote autonomy””. In my view, with the Bill as it stands it would be very difficult to mount a successful legal challenge to such a failure to intervene. Those were the two flaws in the Bill that the amendments were required to address. In relation to the board, the unamended Bill was flawed in exactly the same way as it is in relation to the Secretary of State. The consultations that we held outside the Chamber during Committee led to the formulation of the Government’s amendments. As the Minister has pointed out, the effect of Amendments 8 and 53 is that the duty to act with a view to securing autonomy is reduced to a duty to have regard to the desirability of securing it. That is still subject to the limitation that the duty applies only so far as it is consistent with the interests of the health service. Therefore, what is currently an absolute duty to follow the autonomy line is to be replaced with a more nuanced and, I suggest, a more appropriate obligation to accord to the desirability of autonomy its proper place in the balancing exercise which all discretionary decision-making involves. However, it is Amendments 9 and 54 that are decisive in addressing the concerns that we identified. Those two amendments provide that in the case of conflict between the Secretary of State’s or the board’s duties in relation to autonomy and their overarching duties under Clause 1 or the board’s overarching duties to secure the provision of services, those overarching duties will prevail. Those four amendments taken together fully address the two flaws of which I spoke and, I suggest, completely resolve the issues that they pose. I turn now to the two amendments of the noble Baroness, Lady Thornton, directed at deleting the two autonomy clauses. Indeed, at the earlier stages of this process, I believed that the autonomy clauses could and should be deleted from the Bill. However, my view now is that with the problems that they presented having been addressed, we should support the government amendments and retain the two clauses as amended. Promoting autonomy is, in principle, to be welcomed as many who have spoken from all sides of the House both on Second Reading and in Committee have stressed. It is fundamental to the architecture of the Bill, and its great merit that it establishes a clear, decentralised structure for the health service. It is entirely welcome that future commissioning decisions, in particular, will be made locally to meet local needs, locally assessed. A number of Peers have spoken of the need to avoid micromanagement and of the desirability of expressing that in the Bill. There was much discussion as to whether micromanagement was a word that could be usefully employed in legislation. The Government’s amendments maintain the commitment to avoiding micromanagement but do so in a way in which the flaws in the unamended Bill are rectified. I suggest that they represent an elegant and effective solution to a difficult and challenging problem. I believe that the way in which this solution has been reached brings great credit to this House, as others have said today. I should like to say how much I have personally appreciated the opportunity to work with my noble friend the Minister, and officials and draftsmen from his department, as well as other Peers from across the House who have all brought us to this compromise. These are amendments that we can support and not lose the commitment to avoiding micromanagement. That would disappear if we accepted the amendments tabled by the noble Baroness, Lady Thornton, so we should oppose them. I briefly express support for Amendments 34 and 35, which neatly tie in the CCGs into the Secretary of State’s duty under Clause 1 and the objectives and requirements stipulated by the Secretary of State for the board. In that way, the line of responsibility from the Secretary of State through the board to the clinical commissioning groups exercised through the mandate is maintained and clarified. This has been very important because the amendments embed the mandate in the line of responsibility by which the Secretary of State exercises his constitutional responsibility for the provision of the health service. It is also consistent with the new arrangements for provision introduced by the Bill. This establishment of responsibilities was something that we were very concerned to see in the Bill. Again, it is a tribute to the House that the procedures we adopted have achieved a structure that is both clear and internally consistent, while being effectively co-ordinated.