My Lords, I am nearly convinced that I should have put my name to the opposition to Clause 39 standing part of the Bill.
We have had a very informed and interesting debate which comes to the heart of the balances of power that the Bill seeks to change. My noble friend Lord Hunt set out concerns over Clause 39, which gives general powers of direction to NHS England. Amendments 174A, 174B, 175A, 176A and 175 seek to mitigate the power and to put in safeguards. This is very much in tune with concerns expressed across the Committee, by the Delegated Powers and Regulatory Reform Committee, and by the Constitution Committee. Our amendments stop short of that from the noble Lord, Lord Lansley, and the noble Baroness, Lady Walmsley, but theirs is a more elegant solution in many ways. However, the Minister will need to explain why some powers of direction are required, and we on these Benches will listen very carefully indeed.
This is all part of the balance between the responsibilities of the Secretary of State, especially to Parliament, and the powers the Secretary of State has to enable them to discharge their duties. If there is a clear and consistent solution to this, we have yet to hear it. In a way, we are repeating debates we have already had in Committee. The Bill has been severely criticised as a clear and disturbing illustration of disguised legislation, and it will need to be changed. We will need to move on to proper talks about how to do that.
On whether Clause 64 should stand part of the Bill, the issue is a different one. The 2012 Act introduced the formal notion of NHS bodies having autonomy, and since 2003, foundation trusts have had some degree of at least theoretical autonomy. But in the years of austerity a lot of that has gone, and all trusts of all kinds are simply struggling to manage day by day. It may have been the noble Lord, Lord Stevens, who observed that the difference between a trust and a foundation trust was a distinction without a difference. For some years, the process of managing foundation trusts has been the same as for trusts.
We have been hearing in our recent deliberations about local flexibilities. Our scepticism about this has been strong, because it appears—and this group of amendments addresses this—that any flexibility will be as great as NHS England permits. Let us not reject autonomy. Why remove the duties to promote autonomy? Why not replace them, for example, as the noble Lord, Lord Mawson, said, with a duty around subsidiarity and localism?
I will not repeat what was said by the Constitution Committee, but it was very critical of the powers that the Secretary of State seeks to take. Indeed, I raise a different issue: the fact that I thought NHS England was undertaking implementation of the Bill before it has finished its passage through Parliament. It is all
part of the same pattern. Since we have an undertaking from the Minister to respond to that concern, we will look for an undertaking from him to provide an explanation and perhaps further discussion about why he wants autonomy removed from the Bill.