My Lords, I warmly welcome my noble friend’s amendment. I read with interest the debate in Committee last Wednesday about this very important issue, which goes right to the heart of the relationship between the combined authority and the National Health Service, and the integrity of the NHS as a national service providing uniformity of services across the nation.
Of course, our debate is mostly about Greater Manchester. I very much support the thrust of what is happening in Greater Manchester. I want to see the same in greater Birmingham. But we have to get to the bottom of the essential relationship between local authorities, the combined authority and the NHS. This is not an academic exercise. It would be all too easy for a Chancellor faced with enormous financial pressures, as he is, to transfer responsibility to local government or combined authorities and then deny responsibility, putting the blame firmly on local government and using local government legitimacy to defend the rationing of services to an extent that the NHS has never seen.
Of course, one can go back to the foundations of the NHS, to the arguments in the post-war Attlee Government between Morrison and Bevan. Morrison had been leader of the London County Council, which before 1948 had been the largest hospital authority in the world, and wanted local government to run the NHS, but Bevan was concerned that it would be a very patchy service. Bevan won the argument and we had a national NHS. So the arguments we are having today
will be very familiar throughout the history of the NHS. The key question is: how do we get the advantage of local government leadership and democratic legitimacy while ensuring that we have what we would recognise as a national NHS? That is why this is such an important debate and why the Bill lacks clarity.
The Minister was very helpful on Wednesday and spelled out a number of principles. She said first that healthcare services,
“must remain firmly part of the NHS … and the position of NHS services in the area in relation to the NHS constitution and mandate cannot change”.
She said that,
“all national standards for health services … must … be complied with”.
I take that to mean that the NICE technology appraisals will be fully complied with as well. She said:
“The Greater Manchester deal does indeed put health as a function of the combined authority and not of the mayor”,
but that it will not prejudice arrangements elsewhere, which is a very important factor—for me, certainly—in relation to greater Birmingham, although very few of us in greater Birmingham actually want a mayor and very much object to the blackmail that is being put upon us by the Government forcing us to have a mayor in order to accept the greater responsibilities that would be given. We had a referendum in Birmingham not so long ago when we voted very clearly not to have an elected mayor. It is highly objectionable for the Government now to come along and say, “We don’t really care what the public thought, we insist that you have a mayor”. Significantly, the Minister went on to say that,
“in the field of health and social care, all decisions about Greater Manchester will be taken with Greater Manchester”,
with,
“clinical commissioning groups … providers, patients, carers and partners to shape the future of Greater Manchester together”,
and that the Bill will give local authorities within the combined authority,
“the powers to participate in … strong, collaborative partnerships”.—[Official Report, 24/6/15; col. 1672.]
I would just say that they already have statutory freedom to enter into those partnerships.
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In principle, the key issue is that all decisions about Greater Manchester will be taken by Greater Manchester. The Minister referred to the two governance bodies which will prepare a strategic plan and commission Greater Manchester-wide services, but what is unclear is who on earth the decision-maker in Greater Manchester is. Where do decision-making authority and accountability lie? Which of the many bodies in that great region will be held accountable for NHS services and planning and strategic direction? One of the real risks here is that, far from giving Greater Manchester a huge opportunity to lead change in the health service and integration with social care using the fantastic life science base in the city of Manchester, an additional bureaucratic tier is being added.
No decision about Greater Manchester can be taken without Greater Manchester—but what does “Greater Manchester” stand for? Is it the Greater
Manchester Combined Authority or is there a different definition of Greater Manchester? Does the Greater Manchester Combined Authority have a power of veto over the strategic plans and Greater Manchester-wide commissioning decisions of NHS commissioners? If it does not, does that mean that NHS bodies in Greater Manchester can ultimately ignore what the combined authority says? Does NHS England have a performance management relationship with the Greater Manchester Combined Authority?
We come to the point raised by my noble friend Lord Warner. The Minister said that if the Manchester authorities made a wrong decision, she was sure that the Secretary of State would have to intervene. The question is how. I remind the noble Baroness of Section 47 of the Health and Social Care Act 2012. This amends Section 253 of the National Health Service Act 2006, which relates to the Secretary of State’s power to direct NHS bodies and so is the crucial relationship. The 2012 Act does not give a general power to give directions to NHS bodies and an amendment was necessary to enable the Secretary of State to give power to direct NHS bodies—by reason of an emergency—in order to ensure that a service under the Act is provided. My assumption is therefore that if the Secretary of State transferred a function from an NHS public authority to a combined authority under Clause 6, the emergency power of direction in Section 47 of the Health and Social Care Act 2012 would and could be used in relation to the combined authority. However, this can happen only by reason of an emergency. The Government deliberately set the bar very high in the 2012 Act. I am not aware that this has yet been tested in the courts but my reading of the Act is that the power of intervention by the Secretary of State in relation to the combined authority is actually going to be very limited.
The Minister said on 24 June at col. 1672 that for the purposes of the Bill, NHS bodies are covered by Clause 6. That is highly significant because Clause 6 provides a very wide order-making power. Indeed, the second report of the Constitution Committee said that Clause 6 is broadly framed. It,
“would allow the Secretary of State to reallocate very extensive powers from central government to local government, … This equates to a significant extension of Ministers’ powers—powers which are so broadly framed that they could potentially involve the amendment of primary legislation by order, known as Henry VIII powers”.
That is why I am very suspicious of Clause 6. My reading of it is that the commissioning responsibilities in their entirety could be transferred to the combined authority and CCGs abolished. That may be a good thing—I am not arguing against it—but I want to know what the intention is. Can the Minister help with a definition of “public authority”? The clause defines public authority as including,
“a Minister of the Crown or a government department”,
but,
“does not include a county council or a district council”.
Can the Minister tell me which NHS bodies are included in that definition? My reading is that it would be quite possible to abolish the Department of Health, and with it, of course, Department of Health Ministers, simply by taking an order through both Houses of
Parliament. My noble friend Lord Warner and I may say there is an argument for that—indeed, there is a strong argument for pulling the Department of Health and the DCLG together; I remind your Lordships that Nye Bevan was Minister for Health and Housing—but a simple order-making power which could have such a draconian impact on the way the NHS is organised does not seem to me to be the way forward.
My noble friend Lord Warner elegantly sets out the kind of strategic framework that is necessary to enable this devolution and delegation to happen. The Minister must be clear about what is likely to be delegated or potentially devolved. For instance, is national speciality commissioning to be delegated or devolved to the Greater Manchester Combined Authority? Would that also involve the cancer drugs fund? Will that be devolved to Greater Manchester? Is resource allocation to CCGs to be devolved to Greater Manchester? Is CCG performance management to be devolved or delegated to Greater Manchester? What specific powers are going to be handed over by NHS England to Greater Manchester? The memorandum of understanding is clear that it is about devolution and the eventual delegation of responsibility. It is the duty of the Government during the passage of the Bill to spell out exactly what is going to be devolved and delegated.
It would be wrong of this House to allow Clause 6 to pass in the current state of uncertainty when it could have such a dramatic effect on the National Health Service. I very much hope that the Minister will reflect on this before Report so that we can come back for a fully informed debate and deal with it broadly in the way suggested by my noble friend Lord Warner.