Amendments 146A to 150A not moved.
Health and Social Care Bill
Earl Howe (Parliamentary Under Secretary of State (Quality), Health; Conservative)
My Lords, the policy of the Government and the vision that we have consistently set out is that Ministers will be responsible for overseeing and holding to account the national bodies, backed by extensive powers of intervention in the event of significant failure. I say to my noble friend Lord Newton that that is what the Bill provides for. These powers are essential if Ministers are to be able to retain ultimate accountability for the health service, for the very reasons that he stated. I have to say that some of his phraseology was, in my view, unnecessarily extravagant, if I may use that phrase. The Secretary of State will not stand back; nor will he wash his hands of what is going on, as my noble friend put it. The Bill enables the Secretary of State to intervene where he believes that Monitor, the board, the Care Quality Commission, NICE, HealthWatch or the Information Centre are failing or have failed to exercise their functions, and that failure is significant. In the event that Ministers use these intervention powers, they will be required to publish the reasons for doing so, including an explanation of why they consider the failure to be significant. These requirements will provide transparency to the decision-making process.
I will deal with the question posed by my noble friend Lord Marks. Why should we use the word "significant"? The clear aim of its use is, exactly as my noble friend suggested, to stop Ministers intervening in inconsequential matters. There is no case law on the meaning of "significant failure". The Secretary of State will need to decide whether a failure is significant. However, cases have considered the meaning of "significant" in other contexts and have taken the approach that, while a dictionary definition of "significant"-
"noteworthy; of considerable amount or importance"-
is not to substitute a different expression for the statute, it remains a helpful indication of what the term means. There is a degree of flexibility inherent in the term "significant", and I believe that that is helpful in the context of the arguments put forward by the noble Lord, Lord Owen-who is not in his place-and my noble friend Lord Mawhinney.
I will first deal with Amendment 152. I respectfully suggest that there is a gap between that amendment and that of my noble friends Lord Marks and Lady Williams. Amendment 152 seeks to amend the Bill to give the Secretary of State wide powers to direct the board and clinical commissioning groups in how they carry out their functions. I said "wide powers", and that fundamentally cuts across the vision of a health service free from political micromanagement. It therefore gets us back into exactly the territory that we want to get away from.
Of course it is important, as I have said, that there are intervention powers if things go wrong and those powers are in the Bill. The Bill also sets out a robust system by which the board will hold CCGs to account. I will come on to that in a moment. Creating a sweeping power of direction would seriously undermine the autonomy of the board and local commissioning groups and allow Ministers to use directions or indeed the threat of directions to second-guess operational decisions. In addition, any direct power over CCGs would duplicate and undermine the role of the board which is responsible for overseeing local commissioning.
Amendment 153 makes a more subtle point. It seeks to enable the Secretary of State to direct the board should he consider it to be failing to carry out its functions in the best interests of the health service. Let me reassure my noble friend of what I am sure he does not need to be told. We would always expect the board to act in a way that is consistent with the interests of the health service. This is made clear by the duty on the board to promote the NHS constitution and the duty set out by proposed new Section 1E(2), which ensures that the board is also subject to the duty to promote the comprehensive health service. If the board were acting in a way that was not consistent with those duties, then it would be acting unlawfully. That may constitute a significant failure by the board to exercise its functions properly or indeed at all in relation to which the Secretary of State would consider intervening.