My Lords, we return to the issue that we discussed last Wednesday, namely the ability of combined authorities to assume NHS responsibilities under this Bill. Several things emerged in our last discussion. The first was that the Government currently have no intention of making any clear provisions in the Bill for combined authorities to assume NHS responsibilities. Instead, they wish to proceed on the basis that a combined authority could negotiate a deal with NHS England that would be enshrined in a memorandum of understanding covering a number of years. However, the Secretary of State would retain all his powers in the Health and Social Care Act 2012 to overrule actions by the combined authority in accordance with the memorandum of understanding, if he disagreed with those actions. No matter how much agreement there was between local bodies such as clinical commissioning groups, health and well-being boards and a combined authority, it would still be the Secretary of State’s view that prevailed. The Minister made it
clear when I taxed her on the issue of local bodies replacing acute hospital beds with more preventive and community-based services that that was the position. I have reread Hansard to make sure I did not misunderstand her and I did not.
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The second point which now seems apparent is that this position sits rather oddly both with the NHS’s Five Year Forward View, endorsed by the Government, and the devolution claims by the Chancellor for the Greater Manchester deal, announced with much fanfare in February. The Five Year Forward View made it absolutely clear that:
“England is too diverse for a ‘one size fits all’ care model to apply everywhere”.
That clearly means that NHS England expects variations between areas. Its five-year plan is very clear that the NHS balance should shift to preventive and community services and that funding incentives and systems should change. That was the purpose of my question to the Minister—what would happen if those sorts of changes took place and proved uncomfortable and controversial in some parts of the country? This is clearly a plan that moves activities and funding away from in-patient hospital care on an agreed local basis. That is very much reflected in the Greater Manchester plans, and the memorandum of understanding is consistent with that. It certainly gives the impression that once a deal is finalised with NHS England and local interests have agreed it, there will be no political interference from the centre.
The Minister’s utterances last Wednesday suggested something quite different. They also suggested a total muddle in the Government’s thinking on how this Bill sits with the Health Secretary’s powers under the Health and Social Care Act 2012. I can understand that the Government do not want to amend the 457 pages of that Act. Who would want to go through that agony again? What I cannot understand is why they want to undermine this broadly sensible Bill by failing to make it clear how NHS responsibilities can be transferred to combined authorities on an agreed basis that is consistent with the 2012 Act. All we have to go on regarding how things might work in practice is the current memorandum of understanding between NHS England and the Greater Manchester Combined Authority, which is not even the finished article—it refers to it being the build-up year—and the prospect of a ministerial order, the terms of which we have not seen. Even if we saw such an order, as I understand it from the Minister, there is no guarantee that the same arrangements would apply to subsequent deals. These would all be bespoke negotiations. What we do have is the Minister’s expressed view, which causes me the greatest concern, that the Health Secretary could overturn local agreements if he thought them wrong—or “bad”, in her words. In other words, agreements hammered out locally could be overturned by a Minister in Whitehall because he did not like the look of them or he had been got at by an adversely affected particular interest. I can assure the Minister, having been a Health Minister who sat in Whitehall and dealt with hospital closures and changes, that there is no shortage of people coming forward to tell you it is a thoroughly bad idea.
That is the position we are in and it is not particularly satisfactory. I do not believe that we need to get to a point where we rewrite the Health and Social Care Act 2012 but this House is a scrutinising House. We should not allow muddled legislation to leave it without attempting to make clear how it relates to earlier relevant legislation. This means that we have to look at the Bill before us, which is concerned with the functions of combined authorities, and be clear about how those authorities could assume NHS responsibilities if that is what people at the local level wanted to do. This is very important, given the size and prominence of the NHS in British life, and means putting in the Bill processes that could be adopted across the country, not just in Greater Manchester, that are as consistent as possible with the terms of the Health and Social Care Act 2012. We should not pass the Bill with the current level of uncertainty and lack of transparency on those processes. That can only lead to confusion in the minds of the public, the NHS and its staff, and indeed in local government, and will inevitably lead to legal challenges when some interest or collection of interests does not like the look of particular local changes and tries to challenge those given the Health Secretary’s powers. In all likelihood, that would mean leaving it to the courts to try to work out what Parliament intended.
This is the context in which I have drafted my amendment, which has several subsections. It starts by clearly stating that the Health Secretary has the power to,
“transfer to a combined authority any NHS responsibilities provided for in the Health and Social Care Act 2012”—
so a link is established between the two bits of legislation. However, he must be satisfied that,
“it is in the best interests of the authority’s population in terms of health outcomes”,
and it must be consistent with,
“his duty in section 2 of the 2012 Act … to improve the quality of health services”.
I am sure the Minister is totally cognisant of all the provisions of that splendid piece of legislation. In making such a transfer,
“the Secretary of State shall request that a memorandum of understanding between NHS England and the combined authority be agreed”,
that is consistent with his duties under the 2012 Act and which will last,
“for a minimum of 5 years, unless the combined authority fails to discharge its responsibilities under the memorandum”.
The proposed new clause goes on to say:
“Any memorandum … shall have regard to the Secretary of State’s duty under section 5 of the 2012 Act (the Secretary of State’s duty as to promoting autonomy) by … avoiding placing unnecessary burdens on the combined authority, and … specifying the key health outcomes to be achieved by the combined authority”.
Finally, the amendment requires the Health Secretary to make regulations setting out the requirements in the memorandum of understanding, and requires the combined authority to publish annually a report on how it is discharging its responsibilities.
I am neither a proud author nor make any claims to being a parliamentary draftsman. This amendment was crafted rather rapidly after Wednesday’s discussion before I had to travel from London early the next day.
I am sure it can be improved. It is designed to outline the kind of provision that needs to be in the Bill setting out a process for transferring NHS responsibilities to combined authorities that both reflects the spirit of the Bill and is as consistent as possible with the Health Secretary’s duties under the 2012 Act. I have retained the idea of a memorandum of understanding between NHS England and a combined authority, à la Greater Manchester. I relate the Health Secretary’s powers to transfer responsibility by order to his duties under the 2012 Act. But once he has signed off that order for five years, which is the period I am suggesting, he should not interfere with the authority’s actions unless it is failing to discharge its duties under the memorandum of understanding.
If we are to make a success of devolution, we cannot have agreements made in good faith between people at the local level and the centre being abrogated because of a bit of pressure put on a Health Secretary by a number of particular interests—often vested interests, some would say. It is essential to have an amendment of this kind in the Bill. I hope the Government will be prepared to discuss such a provision across the Benches. It is not intended to be a partisan amendment. Indeed, I do not even know at this stage whether it finds favour with those on the Labour Front Bench in the other place—they seem to have one or two other things on their minds. I support the purpose of the Bill and more devolution of health responsibilities to combined authorities but that has to be done through a transparency process consistent with the 2012 Act until such time as that legislation is amended. I beg to move.