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Clause 46 - Care Trusts where directed partnership arrangements

Health and Social Care Bill – in a Public Bill Committee at 12:00 pm on 6th February 2001.

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Question proposed [this day], That the clause stand part of the Bill.

Question again proposed.

Photo of Philip Hammond Philip Hammond Shadow Spokesperson (Health)

Before lunch, I drew a distinction between clause 45, which provides for an evolution of care trusts from the partnership arrangements first introduced in the Health Act 1999, and this clause, which provides for compulsion in that regard.

It is fair to say that the power to remove a function of a democratically elected body, take control of a slice of that body's budget, including locally generated council tax funding, and allocate it elsewhere, possibly directing it in support of a centrally funded and controlled service—the national health service—is a serious step. Despite the Minister's rhetoric of co-operation and partnership, which we heard today and during previous discussion of arrangements for co-operation between NHS and local authority bodies, it is, in effect, the exercise of brute power—the Secretary of State using his power under the Bill to re-allocate tasks from one body to another, as well as the budget that supports them.

An interesting exchange took place this morning about the Government's dilemma and their thinking on these matters. The Minister, of course, wants the arrangements to be entered into voluntarily. Indeed, he told us that they should be voluntary whenever possible. He also said that the one-size-fits-all approach did not find favour with him, and that flexibility is necessary, along with a recognition that different solutions will recommend themselves in different situations.

The undertone of the Minister's comments was that, if the Government regard something as a good idea, there is a moral obligation to roll it out. Clearly, a tension exists between the assertion that voluntarism is to be the main principle, and the assertion that there is an obligation to push forward measures that the Government think are a good idea.

If I may hark back to a couple of years ago, when a Committee debated primary care groups and primary care trusts, and a great deal of time and energy was expended on discussing the degree of pressure that would be applied to primary care groups to take on primary care trust status. Nobody questions that primary care trust status may be a good idea for some primary care groups. I concluded from those discussions that the Government's view was that there should be a genuine mixed economy of primary care groups and primary care trusts, and that some arrangements would suit some areas, while other arrangements would suit other areas. The assurances given by Ministers satisfied us that that was a sensible approach—that there would not be a push for a one-size-fits-all model. It was a nice soundbite.

However, two years later, inexorable pressure is being put on primary care groups to move towards the primary care trust model. The Government have clearly stated their preference for that model. When I heard the Minister saying that care trusts would be a model, but not the only model, I wondered whether, in two years' time, we will find that the Government are putting so much pressure behind their preference for care trusts that they will become, in practice, the model to be followed. We are worried that the Secretary of State will have powers under the clause to oblige movement to a primary care trust or directed partnership arrangement.

The pernicious thing about this measure is that the Minister is absolutely right: the Secretary of State will not have to use the powers under clause 46, except perhaps in extreme cases-of course he will not, because the mere existence of those powers means that he is unlikely to have to use them. When an unarmed man walks up to a man holding a machine gun, the chances are that the unarmed man will do what the man with the machine gun wants him to do without him being obliged to use it.

Photo of Mr Hilton Dawson Mr Hilton Dawson Labour, Lancaster and Wyre

Is not the logic of what the hon. Gentleman is saying that he and anyone else who votes against this clause are prepared to tolerate inadequate services?

Photo of Philip Hammond Philip Hammond Shadow Spokesperson (Health)

No, that is not the logic. I said this morning that the Secretary of State has adequate powers-which he has used on several occasions-to deal with failing social services providers. He already has those powers, so that in an emergency, when the public are at risk, he can step in and give those authorities ultimatums. Eventually he can take over their powers as social services authorities if they are performing inadequately. The Minister is looking aghast. My understanding is that the Secretary of State has the power to take over the powers of a failing social services authority, and unless my memory is failing me, when the Minister of State, Home Office, the right hon. Member for Brent, South (Mr. Boateng) and I had the pleasure of discussing the situation that arose in Ealing some two and a half or three years ago, he made it clear that he would indeed be ready to use those powers.

Photo of Mr Hilton Dawson Mr Hilton Dawson Labour, Lancaster and Wyre

I hope that the hon. Gentleman is right, because I would support that power, but if that power is available-and presumably the hon. Gentleman supports it-why does he object to the power under this clause?

Photo of Philip Hammond Philip Hammond Shadow Spokesperson (Health)

As I said this morning, for the Secretary of State to have the power to step in when something is going badly wrong-when an authority is clearly failing-is one thing. For the Secretary of State to take powers to impose what is supposed to be an enduring partnership arrangement is palpably crazy: you cannot impose a requirement on people to work together and co-operate; that is clearly a problem.

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

I have to check this, but as far as I am aware, the Secretary of State has no powers to take over the direct running of the social services department of a local authority. Social services have to be delivered under section 7 of the Local Authority Social Services Act 1970 under general guidance from the Secretary of State, and of course there are best value powers, but they do not involve or encompass the Secretary of State directly running a social services department.

Photo of Philip Hammond Philip Hammond Shadow Spokesperson (Health)

I stand to be corrected, and obviously I do not have available to me the instantaneous resources available to the Minister to check my recollection, but my understanding is—I may be wrong on the detail—that the Secretary of State already has powers to step in and deal with a problem. I made that assertion this morning and the Minister did not question it then; no doubt he will have chapter and verse to hand in a moment to correct me if I am wrong on that point, but that is my understanding. I suspect that it is not essential to my point, so perhaps I can move on and if I have got that wrong I should be interested to hear the detail from the Minister, and I will then have to go and refresh my memory of the exchanges that I had with the right hon. Member for Brent, South.

I have raised this issue because we are dealing with the question of compulsion—of requiring a local authority to surrender its functions. I am referring to assertions and assurances that have previously been given about the Government's intention to compel things to happen. In that context, I listened carefully to what the Minister said this morning. At one point, he said that I had ungraciously questioned the assurances that he has given to the Committee. I did that for a reason, which is that the hon. Gentleman and I already had such an exchange when discussing the Health Act 1999 in Committee.

Clause 46 gives the Minister the power to

``direct those bodies to enter into such delegation arrangements or pooled fund arrangements in relation to the exercise of the appropriate function''.

Pooled fund arrangements are defined as

``arrangements falling within section 31(2)(a) of the Health Act 1999''.

When debating in Committee what eventually became that section of the Health Act 1999, I tabled an amendment that would have inserted

``provided that nothing in this subsection shall be construed as requiring any such bodies to enter into such arrangements.''

By that, I meant arrangements for the co-operation and pooling of funds between local authorities and health bodies. Our consistent position has been that those arrangements may be beneficial when they are voluntary, but are unlikely to be helpful when they are imposed. When speaking to that amendment—it must have been nearly 1 o'clock because I was extremely brief—I said:

``The amendment takes us back to a theme that we have already explored—the permissive nature of the arrangements. In our minds, there seemed to be a doubt about the wording of the clause. By adding the additional words, the amendment is designed simply to make it absolutely clear that nothing in subsection (1) should be construed as requiring such bodies to enter into such arrangements for any reason. If the Under-Secretary''—

now the Minister of State who is with us today—

``can give us an assurance that that is the Government's intention that the arrangements will be entirely voluntary and that the Secretary of State will not issue any directions that would require pooled budgets, I shall have no problem in withdrawing the amendment.''

The Minister responded by saying:

``I can give the hon. Gentleman that assurance.''—[Official Report, Standing Committee A, 18 May 1999; c. 801.]

He gave me a clear and categorical assurance that the Secretary of State would not issue directions requiring pooled budgets.

Here we are less than two years later with a Bill that will give the Secretary of State the power to

``direct those bodies to enter into such delegation arrangements or pooled fund arrangements''.

I am not seeking to be ungracious, but since that discussion in 1999 when the Minister gave me that assurance, which induced me to withdraw the amendment, perhaps he has had a change of heart. Alternatively, perhaps the Government intended all along that there should be such powers of direction to require a pooling of budgets between health bodies and local authorities. However, the Minister did not say that to me in Committee in 1999.

Will the hon. Gentleman say whether it was always the Government's intention to create such directed partnership arrangements or whether such a policy came into their mind since he made the statement in 1999? If so, what has happened since then to make the Secretary of State believe that coercion may be necessary and is a desirable weapon? To say that the Government may believe that coercion is better than voluntarism may be a slight exaggeration.

Without wanting to put too fine a point on the matter, what has happened has started to colour my judgment a little about some of the Minister's assurances to Conservative Members this morning. Given the nature of such proceedings, we often table amendments to probe the Government on certain matters and receive assurances that, although certain measures are not in the Bill, the ubiquitous regulation-making powers that the Government are giving to themselves will be used in a certain way or, indeed, will not be so used. However, now I find, on checking back, a clear example of legislation that is less than two years old—in fact, it came into force last April, so it is less than one year old—in which the assurance given by the Minister in Committee is clearly no longer valid. In this Bill, the intention appears to be diametrically opposite to that asserted at that time by the Minister in Committee.

Photo of Dr Peter Brand Dr Peter Brand Liberal Democrat, Isle of Wight 4:45 pm, 6th February 2001

In an ideal world, the Secretary of State would set out strategies that local authorities would have the will, ability and resources to deliver. The real world is not like that. Luckily, it is rare for things to go completely amiss or disastrously wrong, but the Secretary of State is rightly held accountable when they do. However, it is unreasonable to hold him accountable if he does not have the powers to intervene. That is the dilemma for politicians in opposition: we do not want to give the Secretary of State powers, but we want to hold him accountable for everything that goes wrong. I have some sympathy with the Government's point of view.

If the Secretary of State is to exercise powers of coercion, that process should be seen to be open, transparent and accountable. I am worried that no process is provided in the Bill for appeals or further consideration when a decision has been made.

Government amendment No. 318 to clause 45 inserted the words

Where a body is designated as a Care Trust under this section— and set out ways in which the trust could be dissolved. Does the Minister envisage having two types of care trust? The legislation suggests an interest not in performance, make-up or responsibilities, but in how care trusts were set up in the first place. Would a care trust set up under this clause have the same right to ask the Secretary of State to reconsider its future under that amendment? We might more easily accept the powers that the Secretary of State is taking—which I hope will be exceptional—to force an amalgamation of functions through a care trust, if we knew that the protective devices that the Government felt were necessary under clause 45 were also available under this clause.

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

The debate has reached the point from which we started, when we discussed the principle of whether the Secretary of State should be given the power to establish a care trust compulsorily, against the wishes of local partners, as a result of a failing service.

Hon. Members need to address the fundamental question of what measures should be available to the Secretary of State to deal with evidence of a failing public health service. We should all consider that issue, not only in our constituencies but in the context of the Bill. The clause is designed to give the Secretary of State new powers to deal with clear evidence of a failure to deliver public services of an appropriate quality, which our constituents have a right to expect.

I accept that Opposition Members have reservations and concerns about the fundamental philosophy behind the clause. As I understand their argument, they do not believe that it is right in principle that services that are locally democratically accountable should ever be the subject of such an approach by the Secretary of State. However, we argue that giving the Secretary of State that power puts public interest at the top of the list of priorities. I do not query their position, but it is a difficult one for the official Opposition to occupy, because I do not see any proposal for an effective resolution of these problems in their argument.

Photo of Philip Hammond Philip Hammond Shadow Spokesperson (Health)

Our point is that the imposition of a partnership arrangement against the wishes of the partners is internally illogical, as the words ``imposed partnership arrangement'' suggest. We are saying that it is not practical. Other mechanisms may be necessary to deal with failure, but requiring people to co-operate and work harmoniously together cannot be the solution.

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

I accept the hon. Gentleman's argument, but that is only half the clause. The other half relates to the establishment of a care trust. We have provided directed powers in relation to the partnership arrangements and have included provisions relating to the care trust. I do not agree with the hon. Gentleman: that is how the clause will work in practice, as I shall explain in a moment.

The hon. Gentleman mentioned our proceedings on the Health Act 1999. It was never my intention, and I hope that he was not suggesting that it was, deliberately to mislead the Committee. As I understand the debate—I stand to be corrected—we were discussing whether the Health Bill required or allowed the Secretary of State to mandate or require partnership arrangements to be entered into. It does not. That is why we decided to introduce the new powers, as I shall explain later.

Underlying today's debate is an important argument relating to the legitimate Government response and how to put the interests of patients and the public first in dealing with a failing public service. The hon. Gentleman has a different view on such matters. We have presented our proposals in clause 46, and we believe that the powers are necessary and sensible. I believe, and I hope that my hon. Friends agree, that they put the interests of the public first and foremost, and will allow us to make progress in improving public services.

Photo of Philip Hammond Philip Hammond Shadow Spokesperson (Health)

I must clear up one point. Of course I accept that the undertaking that the Minister gave in Committee related to the Health Act 1999. He is now taking a power for the Secretary of State to direct pooled arrangements, which he told us the Secretary of State would not do under the Health Act 1999. The Secretary of State will now be able to do so under this Bill. I accept that technically what the Minister said in 1999 was correct and does not contradict the Bill, but the spirit of it is certainly contradictory, and he should have the good grace to recognise that, and explain to the Committee what has happened between then and now that has caused him to make a 180-deg U-turn in his view about what is necessary or expedient.

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

I will certainly do that if the hon. Gentleman will allow me to finish my remarks. As I explained on earlier amendments to clause 46, the power will not be used lightly, or, I hope, frequently. However, it gives us a positive opportunity to act when other methods are inappropriate. I regard it as a power of last resort, as I said this morning. I envisage the power being used when it seems that no effort, support or outside help can change a culture of failure and decline, and when delegating a function to another body would release those problems and give staff and management a new lease of life.

I do not accept Opposition Members' implicit suggestion that the clause is an attack on social services. It is not. There are some outstandingly good social services throughout the country, as evidenced in our constituencies and on our travels around the country, but I do not believe that any of us would claim that that is universally true.

Difficult though it is, it is absolutely right for the Government to examine all such issues and consider what powers they believe to be appropriate in the public interest to advance the cause of high-quality public services. That is what underlines the provision made in clause 46. I understand the differences that exist between the two sides of the Committee, but as a matter of principle and record it is important to state clearly why we are taking the new powers.

The issue of what constitutes failure arises, and the clause refers to inadequate services. A body of evidence drawn, for example, from inspections will show us where we need to direct our attention. An inspection will be the precursor of consideration of the use of the powers. In tackling the problem, care trusts are one option, but they are not the only solution. They are not the default mechanism, but one of the options for directed partnership arrangements. The power is just one of a range of powers that can be used in specific circumstances. Just like the existing powers to intervene in social services, the new powers in the national health service relate to specific circumstances. We must be able to act appropriately to protect vulnerable people. That in a nutshell is what the clause will allow us to do, and that is why I hope that my hon. Friends will agree to its remaining part of the Bill.

Question put, That the clause, as amended, stand part of the Bill:—

The Committee divided: Ayes 11, Noes 4.

Division number 6 Adults Abused in Childhood — Clause 46 - Care Trusts where directed partnership arrangements

Aye: 11 MPs

No: 4 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly agreed to.

Clause 46, as amended, ordered to stand part of the Bill.