I will happily cover amendment 34 in a moment. Indeed, perhaps I should speak to that amendment before I turn to amendment 60, which has been tabled by the hon. Member for Nottingham North (Mr Allen), just to make it clear what amendment 34 is about.
Amendment 34 mirrors part of amendment 19 and amends clause 17 to provide that the requirements for combined authority and local authority consent do not apply to regulations revoking previous transfers of health service functions under clause 16. Proposed new subsections 1E and 1F, which amendment 19 would add to section 105A to be inserted by clause 7 into the Local Democracy, Economic Development and Construction Act 2009, also have the same effect in relation to health functions transfers under section 105A which are revoked.
This means that in the event that it becomes appropriate to restore NHS functions in a local area to NHS bodies, this can be achieved without the need for consent of the combined authority and local authorities concerned. This reflects the fundamental principles for health devolution, as reflected in clause 18, which builds on an amendment moved by Lord Warner in the other place, that the key responsibilities for the Secretary of State for Health and the NHS remain unchanged in any devolution arrangements. We envisage using the powers to revoke only in those circumstances where it was clear that duties and standards such as those referenced in clause 18 were not being met and that revoking the transfer was the best option to achieve the necessary improvement in performance.
The Secretary of State’s ability to use this power supports the key principle, which this House has already agreed and which the House of Lords was also insistent on, that nothing about devolution settlements will impinge on his duties in respect of the national health service, including the duty to promote a comprehensive health service, to exercise his functions with a view to securing continuous improvement in the quality of services and to have regard to the NHS constitution. The other procedural requirements and preliminary conditions will continue to apply, such as the requirement that the Minister making the regulations must consider that the instrument is likely to lead to an improvement in the exercise of the functions concerned, and that Parliament must approve the secondary legislation.
Let me explain in straightforward terms what this is about. The House has already agreed that it wants to retain the national health service, even if NHS functions are devolved to local authorities. That means that the duties of the Secretary of State in relation to the NHS remain absolute. As I said earlier, if the Secretary of State is to sign off these powers to commission services to a local authority, he has to be sure that doing so is in the best interests of healthcare and that the quality of healthcare will be improved. Otherwise, he just will not do it. There will not be any consent involved, or anything else; he just will not do it. However, if he signs it off, it means that he is satisfied that there will be an improvement in the quality of healthcare. Should that fail—should the NHS functions transferred to a new authority fail—it is the Secretary of State’s duty to take those powers back, because he is responsible for the delivery of NHS standards. If he cannot be satisfied, he is going to have to take these powers back. In the circumstances, it is possible that local authorities might disagree and want to challenge that, but his duties are absolute. That is why the requirement for consent is coming out. We are talking about a circumstance that nobody expects to happen. The Secretary of State is not going to devolve unless he is certain, but if he needs to take powers back to maintain his duties, he must have the power to do so. Even if he has to do so, the matter goes before the House, which makes up its mind on it. That is the basis of Government amendment 34 and the answer to amendment 60.
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