Health and Social Care Bill

My Lords, all the amendments in this group have a single theme, although Amendments 294 and 295, to which I shall turn later, are in a slightly different category from the rest, and except for those two amendments all these amendments are supported by my noble friend the Minister. These amendments are intended to put in place a robust failure regime to permit the Secretary of State, or the board where it is the intervening body, to intervene in the operations of bodies within the NHS in the event of a significant failure by such bodies properly to exercise their functions. The purpose of the amendments is to ensure that it is for the Secretary of State to decide whether a body is failing or has failed to discharge its functions in a way that he considers is consistent with the interests of the health service. If he so decides, his intervention powers will be triggered and an intervention will be justified. However, there is a proviso. The failure must be significant so that the Secretary of State cannot intervene in the case of an insignificant failure, but in practice he will be the judge of significance. Although strictly speaking his view of the significance of a failure could be challenged, in my view such a challenge would be hard to maintain in normal circumstances. I would add that in cases in which it is for the board to intervene in the functions of a clinical commissioning group, it is correspondingly the view of the board that will count. Without wishing to go into detail about these amendments, perhaps I may canter quickly through the intervention powers with which they are concerned. Amendment 71 is the Secretary of State's power under new Section 13Z1 of the 2006 Act to intervene in the event of failure by the board. The Secretary of State may then step in to give a direction to the board as to the discharge of its functions, and if the board fails to comply with such a direction he may step in and exercise them himself or delegate them to another. Amendment 113 is concerned with the power of the board to require information and documents from clinical commissioning groups or to require an explanation from clinical commissioning groups under new Sections 14Z15 and 14Z16 in the event of failure by those groups to discharge their functions. Amendment 114 concerns the board's very wide powers of intervention to give directions to clinical commissioning groups, to change their accountable officer, to vary their constitution, to dissolve a group or to take over its functions if a direction is not complied with. Amendment 176 concerns the Secretary of State's power under Clause 69 to intervene by giving directions to perform functions or to perform them in a specified manner in the event of a failure by Monitor. Amendment 258 concerns the Secretary of State's power under Clause 244 to intervene by giving similar directions in the event of failure by NICE. Amendment 291 concerns his power under Clause 268 to intervene by giving similar directions in the event of failure by the Information Centre, and Amendment 296 concerns his power, amended by Clause 290, to intervene by giving directions in the event of failure by the Care Quality Commission under Section 82 of the Health and Social Care Act 2008. When debating and then discussing the Secretary of State's role and overarching duties under Clause 1, coupled with his duty to promote autonomy under Clause 4, your Lordships will remember how quickly it became clear that the new structure brought with it a considerable difficulty. Gone will be the Secretary of State's direct duty to provide. In its place, the provision of services will now be the responsibility of clinical commissioning groups under Clause 12. It follows that the new substitute duty on the Secretary of State could be a duty to exercise his functions only so as to ensure that services are provided in accordance with the Act. To achieve that in a way that was consistent with the Secretary of State retaining ministerial responsibility effectively for the health service, it was essential to ensure that the functions accorded to him by the legislation were up to the task, and that really is the point of these amendments. It means that the Secretary of State has to be given effective powers to intervene. Such powers to intervene would not be effective if he could intervene only in the event of a body's failure to discharge its functions altogether. A power to intervene in the event of a failure to discharge them ““properly”” would not be up to the task either if it was going to be open to the body concerned to argue that it was discharging its functions properly whatever the Secretary of State might think, even if he took a contrary view. Such a body might then have been able to say to the Secretary of State, ““You may disagree with the way we choose to exercise our functions, but we disagree and it is up to us””. The Secretary of State might in those circumstances have been left to return to Parliament with the lame and ineffectual excuse that there was nothing he could do because he could not show clearly that the body was not exercising its functions properly, whatever he thought of its conduct. These amendments address that central difficulty. They do so in each case by making it clear that a relevant body is failing to discharge its functions if it is failing to discharge them properly, and it is failing to discharge them properly for these purposes if it is failing to discharge them in a way that the Secretary of State considers not to be in the interests of the health service.