My Lords, we come to Clause 39, which I think is one of the most significant ways in which the Bill will increase the powers of the Secretary of State over the NHS. The clause gives a general power of direction over NHS England in the exercise of its functions. It is a very significant change from the legislation the noble Lord, Lord Lansley, put through in 2011-12. It also is clear that many NHS bodies are, like the Nuffield Trust,
“concerned that these new powers will result in a more politicised NHS, with ministers dragged into micromanaging how local services work.”
I do not think you can consider this clause without considering further clauses in the next group, led by the noble Baroness, Lady Cumberlege, in relation to the power of the Secretary of State to intervene at any time in proposals to change services. In addition, Part 3 of the Bill gives the Secretary of State the power to move responsibilities between several arm’s-length bodies in health and to abolish them. We have already had the CQC debate today, about an increase in the Secretary of State’s capacity for intervention. There is also the question of the regulators, which will be discussed later, which again leads to the individual professional regulators, which, again, the Secretary of State can abolish.
Although I am going to talk about the general direction, I do not think you can do that without thinking about the other accretions of power that the Bill takes. Together, I believe it is a fundamental difference —a change in philosophy—from the 2012 legislation. NHS Providers, with which I have discussed this extensively, is concerned. As it says:
“Clinical and operational independence must be maintained in order to ensure equity for patients within the service; the best use of constrained funding; and clinical leadership with regard to prioritisation and patient care.”
Although I do not want to completely open up this debate, I have to say that the allegations made by Conservative MPs about threats made in the last few days by Government Whips, over the funding of services, are very apposite to how a power direction might be used by Ministers under this Bill.
6.15 pm
Let me explain my amendments. Amendment 174A would mean that a direction by the Secretary of State
“may be given only in relation to a particular instance, not generally … A direction … must provide for the direction to cease to have effect on a date specified in the direction, which must be no later than one year from the date the direction was given.”
This really reflects the reality that the public interest is not static and objective circumstances may change. If, after a year, the Secretary of State believes the direction is still necessary, they can renew it, but there has to be an explanation of why it remains in the public interest.
Amendment 174B would mean that a direction must include a statement of
“why the Secretary of State believes the direction will be in the best interests of the public.”
The public interest test is based on the principle of them carrying out their duties. Ministers, civil servants and public authorities must act demonstrably on behalf of the public as a whole, not on behalf of individuals or private interests. This constitutes another check and balance that needs to be put in place.
Amendment 175A would mean:
“The Secretary of State must publish any direction … at the time that the direction is issued and lay it before Parliament.”
Additionally, I would like the Secretary of State to
“publish an impact assessment … at the time the direction is issued or within that financial year.”
Again, transparency is essential to ensure all the required processes and safeguards are being adhered to during the decision-making process.
Amendment 176A would mean that the power could not be used to direct NHS England to make a particular procurement decision or grant of NHS funds to a particular person. This means the power could not be used to undermine the integrity of a fair-share allocation to local systems by unfairly seeking to amend allocations to a particular part of the country, contrary to the allocation formula.
Amendment 176A would remove existing procurement requirements, with the intention to move away from the competitive tending by default in favour of a more collaborative approach to planning and delivering services. For example, ICBs will have the ability to continue with an existing provider while having to go through a competitive procurement process, under the Bill. We discussed this on our last Committee day.
While the Secretary of State sets the overall budget for NHS England, they should not have the power to circumvent and interfere with this new procurement regime. The power of direction conferred on the Secretary of State in Clause 39 should not be used to interfere in NHS England’s operational independence and direct it to make a particular procurement decision.
My Amendment 176A concerns the weighted allocation formula. NHS allocations are underpinned by a weighted capitation formula, which calculates the target fair share of the national budget for local authorities.
The ACRA makes recommendations on the optimum geographical distribution of health spending, advising the Secretary of State on public health allocations and the chief executive of NHS England on NHS allocations. The power of direction in the Bill should not be used to undermine the integrity of fair-share allocations to local systems.
The noble Lord may say, “This is all fine and dandy, because the Secretary of State will only ever use this power of direction on very few occasions.” My view, however, is that this is such a significant difference from current legislation that safeguards ought to be set out in legislation. In reality, I have to say that once you have a power of direction, it changes the relationship between the Secretary of State and NHS England in any case, because if NHS England knows that the Secretary of State has a power of direction, it is bound to take note of that in terms of their relationship and the instructions and advice the Secretary of State may give it. I am not naive enough to think that my amendments would necessarily prevent undue involvement by Ministers in the operational activities of NHS England, but I do think they would go some way to providing some reassurance.
Again, I say that you cannot consider this group of amendments without taking account of the noble Baroness’s group of amendments, which are equally important, and the other accretions of power that the Minister is taking. I hope the Minister will give a proper justification—I have not yet heard one—for why the Secretary of State feels the need to take these powers. I beg to move.