I beg to move amendment No. 123 in page 3, line 31, at end insert—
'(6) No functions shall be distributed to or exercisable by a Primary Care Trust unless the Secretary of State has laid before each House of Parliament a statement to the effect that such Primary Care Trust is ready, willing and able to receive and exercise such functions.'.
I will try not to give this debate an air of de''ja vu by referring to an earlier debate. This deals with the question of whether the negative or affirmative resolution is used to approve the secondary legislation that fleshes out some of the powers given to the Secretary of State to enact the Bill.
Clause 3 gives the powers for the transfer of functions to the strategic health authorities and PCTs to carry out their newly defined duties under the Bill. We must also bear in mind the contents of schedule 2. Not only does the clause give the Secretary of State the powers to delegate directly to PCTs the exercise of any functions conferred on him by health authorities, including things like providing hospital accommodation, but there is a range of duties and
functions in schedule 2 that will be carried out under the powers contained in the clause. All hon. Members will accept that this is an extremely important part of the Bill, because it provides the powers to ensure that the Bill fulfils its objectives and that the relevant bodies and organisations have the statutory basis to carry out their duties.
Those powers are given through secondary legislation, which again is carried out by negative procedures. My hon. Friends and I would argue that given the significance of the powers in this clause, the negative procedure is just not the right way to proceed. In an earlier debate on a similar clause with regulation-making powers, we pointed out that just over 2,000 statutory instruments laid before Parliament in the last Session required the negative procedures. The vast majority of them never had the opportunity to be debated in the House or another place. From memory, I think that about 30 statutory instruments subject to the negative procedure were debated in the House.
If one looks at the situation in the context of the proper monitoring and holding to account of legislation, I hope that the Minister will agree that it is unsatisfactory to use secondary legislation to enact parts of primary legislation that has been studied line by line in Committees such as this. The same argument applies as before. When the Minister was in opposition, in Committee after Committee on Bill after Bill, he and his shadow ministerial colleagues clamoured for more Government accountability to Parliament on significant pieces of secondary legislation. It was unacceptable that they should slip through almost on the nod by the negative procedure. Ten years ago, the Minister would have agreed 100 per cent. with every word that I am saying, but life has moved on and things have changed. He now has the responsibilities and I do not, so the arguments that Labour Members and possibly the Minister made in Committee at the time are no longer regarded as valid.
We cannot remain in a time warp. One should always be sufficiently intellectually alert to challenge perceived views when life moves on, and this is one of those times. I hope that the Minister agrees that the powers in the clause are crucial and warrant a more careful study by Parliament before being enacted. That could be done only by changing the negative procedure envisaged by Ministers into the affirmative procedure, so that we and another place have an opportunity to study what the Government are proposing and to ensure that they have got it right.
Even though a statutory instrument cannot be amended, it can be withdrawn if it is shown that there are significant flaws in any of its proposals, and it can be redrafted. However, we have the opportunity to prevent potential pitfalls only if we have a debate in a Committee, so that we can study the statutory instrument. If the negative procedure applies, according to the law of averages the past figures that I have quoted show that the chances of having a debate are negligible.
The Minister would be in an unenviable position if a statutory instrument gave the Government the powers to bring in the provisions, and a glaring error
or fatal flaw in the proposals was suddenly discovered afterwards. If the amendment were accepted, this Minister in particular would be more than anxious to thank me for helping him to avoid that pitfall and the tarnishing of the justifiable and reasonable reputation that he enjoys as a Minister of State in the Department of Health.
With the intellectual power of persuasion and a little flattery, I hope that the Minister will be reasonable enough to agree that my case for the amendment is overwhelming. In the long run, it would help him to avoid any pitfalls that parliamentary draftsmen, civil servants or Ministers looking through their boxes late at night had missed. I hope that for the common good and to avoid mistakes being found when it is too late, he will accept the amendment.
I am grateful for the flattery by the hon. Member for West Chelmsford. I always enjoy flattery and I particularly enjoyed that moment, so perhaps he would like to repeat it.
It very nearly did. I was seriously tempted to accept the amendment, but then I realised that the hon. Gentleman was over-egging the pudding just a little and I pulled back towards the end of his remarks.
I understand where the hon. Gentleman is coming from. He made clear his views on the general issue earlier, and I have set out my views on it as well. As always, we need to consider the amendment before us, not the general principle that underpins it, for which many of us may express some support. The Committee is charged with considering the amendment.
The hon. Gentleman asks for the affirmative resolution procedure to apply. The amendment would require the Secretary of State to make a statement to the House that a PCT was ready, willing and able to receive and exercise the relevant functions. However, those are matters of judgment. They are not about the wording or otherwise of any regulation, so I am not sure that his point about improved scrutiny of the wording or technical drafting of regulations is relevant to the amendment. He is asking the House to make a judgment on the suitability or otherwise of PCTs. That is different argument from the one about improving the scrutiny of regulations. He has again chosen the wrong issue and the wrong amendment to make his point. The amendment was a vehicle for making the same general observations, and he has done that. I will not bore the Committee with another long description of my reasons why the amendment should not be accepted, I simply refer him to my earlier remarks. The hon. Gentleman has not raised any issue of substance or any different issue of principle. I do not want to leave him feeling disappointed or somehow chastised. I will find another occasion to flatter him. Indeed, I want to flatter him, but he will have to make it easier for me to do that.
I pay tribute to the hon. Gentleman and hope that that might help him. He talked about the need for us to be intellectually alert. He always is, and has a fine reputation in the House for that. I know how difficult it must be for him today, because I understand that he is trying to give up smoking. I gave up smoking, and know how difficult it is. I did not feel especially intellectually alert, and on the day that I tried to give up, I thought that my IQ had dropped by about 50 per cent. I wish the hon. Gentleman every success, although his performance today does not show that he is suffering from the effects of giving up smoking.
I am relieved that, in England at least, full implementation is slightly delayed until April 2003. However, we must face the fact that the change for GPs and PCGs that are turned into PCTs is huge. The paper that was circulated by the Minister entitled ''Functions currently directly conferred on health authorities and transferred by the Bill'', is a huge list of duties that go to PCTs. In my county, the three PCTs will be responsible for their own local services and each will be responsible for a huge list of county-wide services. My PCT will become responsible for children's services for the county. Will the Minister assure us that resources and expertise will be given to the PCTs by April 2003, so that they can take on the extra duties that, in the case of my trust, more than double the payroll of the staff for which it is responsible?
I apologise for not being here earlier due to business in the House.
The purpose of the proposal is to have a failsafe mechanism to ensure that before a PCT is given functions, it is willing and able to receive them. There is also the timetable issue. A PCT must be ready, and we have already amply debated the lack of preparedness of some PCGs. The hon. Member for Wyre Forest (Dr. Taylor) touched on the range of functions that could be transferred to a PCT, as well as those that are delegated by the Secretary of State. A PCT could be ready to undertake some functions that it is given, but not others, such as recruitment or dealing with retention difficulties. Does the Minister see any reason why it would not be possible, in an appropriate case, to give a PCT only the functions that it is ready, willing and able to take on, or does there have to be a template solution, in which all the functions are transferred in one go? In other words, is it possible to have what used to be loosely described as variable geometry?
No, I am not in favour of variable geometry. When I was at school, I never understood it, but with regard to the hon. Gentleman's argument it is clear that it would not be a recipe for consistency and effectiveness throughout the NHS. We must consider the issue in the context of the architecture of the new arrangements between SHAs and PCTs. The purpose of the exercise is to give the grass roots of the front-line
services as many functions as possible. Of course, the Secretary of State has to make judgments about the capacity and the capabilities of PCTs to discharge such functions. That is precisely his function and it is part and parcel of the decision making process that he must go through in authorising the establishment of a PCT. That is the right way to discharge those functions effectively, rather than an attempt at variable geometry in the way that the hon. Gentleman proposed. I would not want to signal to the hon. Gentleman that we are considering variable geometry; we are not.
According to the list, the current health authority functions listed will go to the PCTs. One function relates to special notices of births and deaths. I do not know what that amounts to—the Minister may be able to tell me—but it is probably not one of the health authority's major functions. However, a PCT may have difficulty in sorting that out.
There may be some mechanism that we have not yet heard about whereby the Secretary of State would simply transfer functions when the trust was ready, and the special notices of births and deaths function would be transferred in due course when it was ready to go on line. It may be that that is one of the powers of the Secretary of State in the schedules. There certainly is a provision in one of the schedules to the effect that the Secretary of State has powers to distribute the functions in a very wide way. Is it possible for the Secretary of State to distribute these functions a la carte or does he have to do them all at once and is the mechanism—
We do not want to encourage any more of that, thank you very much.
In theory, that is possible because the Secretary of State can exercise that discretion, but it would not be sensible to do so in the context of what we are trying to achieve through shifting the balance of power. We envisage the PCTs taking on the responsibilities and that is why we have set out the provisions today and I have tried to expand upon them in earlier sittings of the Committee. If the hon. Gentleman wants to raise specific questions about the special notices of births and deaths, we shall certainly be able to reconsider the matter when and if we debate clause 3. I do not have any information about that at my finger tips, but I am sure that I can obtain it if he wants.
The amendment is essentially about whether the House should go through the affirmative resolution procedure when the Secretary of State wants to bring a PCT into existence and he has to make the statement that it is ready, willing and able to receive and exercise its functions. According to the amendment, he has only to make that statement, and I do not see how that is an improvement in the scrutiny role.
The issue of accountability is important; I do not dispute that. My view is that clearly, as the Secretary of State will hopefully be given powers to make these decisions under this legislation, he is accountable to the House for his decisions. There are various ways open to Members to hold the Secretary of State to account. This is a genuine question that we would need to be further satisfied about. I have no doubt at all that the Opposition Chief Whip will want to reflect on the question. I suppose it is different in opposition, but if the hon. Gentleman succeeded in amending the proposal and, by some miraculous turn of events, the Conservatives became the party of government, he would have to explain to his business managers why hundreds of orders have to be debated on the Floor of the House simply because the Secretary of State has to make a statement. With the benefit of 20:20 vision they might welcome such a proposition, but I strongly suspect that in reality they would not. Most Government Members probably regard the hon. Gentleman's point as a bit of window dressing, and not substantive.
The hon. Member for Wyre Forest made one important point, and I will deal with it. He asked me about functions and resources and, in particular, whether PCTs will have the resources to go with the functions. That is our intention. It is not part of our programme of NHS reform to give grass-roots primary care organisations important new functions but no means to deliver them. We are not stupid. He asked for a simple response, and I have given one.
Opposition Members must bear in mind that, although PCTs will be given new responsibilities, people in the NHS are already discharging them. In this matter, they tend to be working in health authorities. We envisage those people continuing to exercise important responsibilities in the new PCTs, and we want those who wish to transfer to do so. I hope that there is no misunderstanding. The functions are being discharged by public servants in the NHS, and they will continue to be discharged by public servants working for PCTs. The resources that are needed to ensure that the SHAs and PCTs can discharge those important responsibilities will be available.
The Minister may be labouring under a misapprehension of what we were aiming to achieve with amendment No. 123. He said that it would be wrong to deal with the matter under the affirmative resolution procedure because each order would have to be debated on the Floor of the House, but there would be no need for that. There would be a debate in Committee, similar to the one that we had on Monday, not on the Floor of the House, although there would be provision for seeking to divide the House after the Committee had examined it.
The procedural point is not the most important part of the amendment. If the Minister is saying that the amendment would be acceptable if it used negative procedure, we will examine that option for Report. Our point is that because many PCGs are not ready at the moment—concerns have been expressed widely about that—there should be a duty on the Secretary of
State not to impose duties and burdens on PCGs that are not ready for them, or, if he does impose such duties, to make a statement to the House to the effect that they are not only ready, but willing and able to take on the functions. That is a sensible suggestion. If the Minister's only objection is that he believes that we should do that using negative procedure, I would be prepared to withdraw the amendment and reconsider it for Report.
Some current health authority functions, such as the management of family health services, are significant matters. Indeed, as the Minister may agree, it is one of the most crucial functions. General medical services are similarly important, and general practice plays a vital role throughout our constituencies. However, some functions are minor. I raised some points during my long intervention, and I have not yet had a satisfactory answer. I hope that the Minister will be prepared to take up those points briefly. He seems to suggest that all the functions would be given to the PCT at once. If a PCT can manage most of the functions but has difficulties with one or two aspects, for whatever reason, could not most of the functions be transferred? Or would they all have to be transferred because the health authority had been abolished and there was no one to take responsibility? We are keen to probe the practical aspects. It is part of the theme that we have developed throughout the Committee that not all the PCTs and PCGs are ready. We want to be satisfied that the Government have thought through all the issues.
''A Strategic Health Authority may, in relation to any specified functions of theirs, direct a Primary Care Trust whose area falls within their area to exercise those functions.''
It also provides that
''a Strategic Health Authority may not so direct a Primary Care Trust in relation to any functions of the Strategic Health Authority arising under section 28C arrangements if the Primary Care Trust is providing any services in accordance with those arrangements.''
It goes on to provide that the Secretary of State may direct strategic health authorities that specified functions are exercisable or not by PCTs.
The list that the Minister produced, for which I thank him, is helpful in detailing the functions that are currently directly conferred on health authorities and would be transferred by the Bill. Will the Minister comment on the general point that that distribution of functions is fine in that it gives the PCTs responsibility
for important issues, such as the management of family health services, general medical services, and so on, but that it has to be seem in the context of the numerous target performance indicators and the fact that the Secretary of State retains numerous powers throughout the Bill? To what extent can the Minister help us with the programme for the transfer of those functions? I asked earlier whether each of the health authority functions would be transferred to the PCTs or whether one range of functions could be ready and another not, so that the changes could be stepped in over a period. Have I misunderstood the way in which that works? Is it a take-it-all or leave-it-all option?
No body other than the PCT can take on the functions. As I understand it, the proposal is to abolish the health authorities before the PCTs are set up. The Minister said earlier that there would be a gap between the strategic health authorities being set up and the PCTs coming into effect. Our original idea, based on the Library brief and ''Shifting the Balance'', was that all the events, including the transfer of functions, would happen on the same day. We would have completion, to use a conveyancing term: on the same day, the authority would pass its powers over, and the PCT would pick them up.
If I am right, and the strategic health authorities are being set up on 1 April 2002 but the PCTs—or some of them—will not be established until October that year or allocated a budget until April 2003, what happens to the distribution of functions?
We have been over this ground. In April 2002, the Secretary of State will use his existing legal powers to complete a merger of health authorities along the boundaries of the proposed strategic health authorities. Clearly, there will not be strategic health authorities in the sense of the Bill at that time, because the Bill will not have passed through both Houses. Later, when the Bill receives Royal Assent—say, by October 2002—we can properly complete the establishment of the strategic health authorities, in accordance with the provisions. That is when the architecture will be symmetrical: the PCTs and the strategic health authorities will be in place and discharging the functions that we decide on in the House. That will complete the process; there will not be a gap, as the hon. Gentleman implied.
The point is that there will be a vesting date on which functions are distributed from the health authorities to the PCTs. Will the date be October 2002, or later? I understand that the health authorities will merge. At the moment, they have various powers and duties, which are either delegated to them by the Secretary of State or provided by law. If the health authorities retain all those powers and some of the PCTs have been set up, but not all of them, how are the functions distributed to the PCTs in the period between 1 April 2002, when the mergers occur, and the date when the Bill, assuming it becomes an Act, comes into force? In other words, what is the
Government's scheme for distributing the functions, before the Bill has been passed? Perhaps the Minister understands; I do not.
We had all thought that 1 April 2002 would be the vesting date. Obviously, that was an over-ambitious view of the time needed for the Bill to become an Act. If that will not be the date, I do not understand how the PCTs will function in the period between now and whatever date is the vesting date. Will the Minister help me?
I thought that I had. The hon. Gentleman is labouring the point and making a substantial mountain out of a very small molehill. He needs to refresh himself about the legislative context of the debate. The functions that are directly transferable to PCTs cannot be transferred until the Bill becomes law. Existing functions conferred by the Secretary of State under the National Health Service Act 1977 will continue to be discharged by health authorities until the process of establishing and delegating functions to PCTs is complete and the Bill becomes law.
Will the PCT, as an agent of the health authority, be able to carry out its role from April? In other words, is the clause legislative cover? Perhaps PCTs will acquire more powers in October. A budget must account for transferred functions, but PCTs do not yet know what their budget will be. They assume that it will be what was spent on a function in the previous year plus a bit extra, in line with pronouncements from the Government, the Chancellor and so on. Will the Minister explain how their functions and budget dovetail? If PCTs have a budget at the beginning of the financial year, they will be able to undertake their functions. If they start in October, how will that process work? Will there be a health authority budget for 2002-03, with part of the money given to the PCTs mid-year to help with the new functions? The British Medical Association and the Royal College of Nursing were told that the starting date would be April 2003. How does the timetable for implementation accommodate the functions and the money? Those factors are interlinked, and PCTs are concerned about the Government's intentions.
Under existing legislation, the Secretary of State can directly delegate his functions only to health authorities, and further delegation to PCTs is carried out by health authorities. Certain excepted functions, which include provisions for the special secure psychiatric hospitals, arrangements for local representative committees and most family health service duties, cannot be delegated beyond health authority level. The clause will simplify the system in England by making all the Secretary of State's functions directly delegable to strategic health authorities and primary care trusts. It also removes the concepts of delegable and excepted functions and enables a strategic health authority to direct a PCT on the exercise of any functions.
The clause streamlines the exercise of delegating and dispersing functions throughout the NHS, and transfers significant responsibilities directly to PCTs.
To labour the point, the transfer completes the process of devolution, which was outlined in the 1997 White Paper and was further developed in ''Shifting the Balance'' and our most recent proposals, so the clause is important. The NHS plan was not just a programme of investment, important though that is. It also set out a process of reform, which will be greatly assisted by the clause. The clause makes a reality of that aspiration.
The clause provides for the Secretary of State to delegate his own health functions directly to PCTs. The provision fully recognises the changing role of the front line. I understand that the Opposition have reservations about the speed of those changes and that they have some fundamental objections to the process of devolution itself. However, this is a very important clause that I hope hon. Members on this side of the Committee will be able to support.
The hon. Member for North-East Hertfordshire asked me a number of questions about functions, and I tried to deal with his question about the timetable. He also asked about resources and how they would be transferred.He referred to a vesting day; the day on which we implement clause 2 will be when we shift all the directly conferred functions. We currently intend to do that around 1 October 2002, so we are envisaging a vesting day in the way that he has described. I cannot confirm to the House that it will be 1 October—it may well be a Sunday—but it will done in October. That is when the functions will be transferred. All the key family health services will be directly conferred and all PCTs will be given the responsibility of delivering those important functions.
The hon. Member for Wyre Forest asked me about resources and, as in all spheres of life, this is the crunch. When the functions transfer, the resources have to transfer with them. It would not be sensible of me to go into the detail of how the precise resources will transfer to each PCT because I am not in a position to have that discussion today. The obvious and only logical position for us is to ensure that the necessary budgetary allocations are transferred on the day on which the functions are transferred.
I am happy to go into more detail at some future point with the hon. Member for North-East Hertfordshire. Perhaps he would like to come into the department, or perhaps he would like me to provide him with a briefing. However, the resource issue, the audit trail, where the money is going; all of these issues will be in the public domain. We have nothing to hide about that. Many of the earlier debates have again become crystallised in this clause. I have tried to respond to the hon. Gentleman's concerns as fully as I am able at the moment.
I understand that there is a question over the power of functions that are directly transferred to the PCTs—these functions are listed—but there is also a power for a strategic health authority to direct that a specified function shall be dealt with by the PCT. Are those functions the same ones as are set out in the document that has been given to the Committee, or are
they a different group of functions? Subsection (2) talks about the Secretary of State's functions going to PCTs. Is that what the Minister was referring to when he talked about the vesting day, or does the subsection apply to both matters?
The power for the strategic health authority to direct a PCT relates to any of its functions. It is important that there is an opportunity for that power to be exercised at some point. The difficulty is how we square devolving power to the front line while continuing to have a power of direction. We have thought about this very carefully; the alternative is to have the Secretary of State issuing directions from the centre. The hon. Gentleman and his hon. Friends will be the first to moan at me that that would mean micromanagement of the NHS by Ministers in Richmond house.
We need to have this power to ensure that the NHS does not become a free-for-all, and that the strategic health authority is able to have that power when necessary. However, it is a power that we have moved away from the Secretary of State down as close to the front line as we can. The power is given to the strategic health authorities. I do not have anything else to say about clause 3, so I shall sit down.
I am obviously trespassing on the Minister's good will, but I shall continue. The document on the functions directly conferred on health authorities and transferred by the Bill states:
''This table sets out those functions which are directly conferred by legislation on Heath Authorities. There is a large number of functions which are conferred on the Secretary of State by legislation, which can be delegated to Health Authorities. Some functions can, in turn, be delegated by Health Authorities to Primary Care Trusts. The Bill does not deal with these functions''.
These include such things as ambulance services. It then goes on:
''It is expected that those of the Secretary of State's functions which are currently exercised by Health Authorities will be delegated by the Secretary of State instead to the Primary Care Trusts.''
It then lists the current health authority functions and the bodies to which they will be transferred.
Clause 3 concerns directions and the distribution of functions. I may be wrong, but I believe that it is concerned with different functions from those in that list. However, it may not be. Is the Minister saying that the list in the document of the current health authority functions that will go to the PCTs is a list of the functions that the strategic health authority will direct the PCTs to do? If so, I can understand that. If not, could the Minister give us an idea of what functions are dealt with? Subsection (2) mentions the Secretary of State's directions and his functions, and the health authority's directions and functions are also mentioned. Is that what the document is about? Are those directions transfers?
I thought that I had answered that question. The primary care trusts' functions go down various routes. Some are transferred directly by the Bill; some will be delegated to the PCTs by the strategic health authority or the Secretary of State. The power in clause 3 to allow the strategic health authority to
make a direction to a PCT is exercisable by the strategic health authority in relation to any of the functions that the PCT is discharging. It does not matter by which route the functions go to the PCTs; directly under the Bill or down any other route. The power given in the Bill to make directions to the PCT is exercisable by the strategic health authority in relation to any of the functions that it is discharging.
I shall write to the hon. Gentleman and to the Committee.
Question put and agreed to.
Clause 3 ordered to stand part of the Bill.