Clause 1 - The Secretary of State and the comprehensive health service

Health and Social Care(Re-Committed) Bill – in a Public Bill Committee at 1:00 pm on 30th June 2011.

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Amendment proposed (this day): 1, in clause 1, page 2, line 4, leave out from ‘(b)’ to ‘in’ in line 6 and insert

‘must provide or secure the provision of services.’.—(Liz Kendall.)

Question again proposed, That the amendment be made.

Photo of Roger Gale Roger Gale Parliamentary Assembly of the Council of Europe (Substitute Member)

I remind the Committee that with this it will be convenient to discuss the following:

Clause stand part.

Amendment 227, in clause 3, page 3, line 5, leave out from ‘must’ to ‘reduce’.

Government amendments 55 and 56.

Government new clause 1—Secretary of State’s duty to promote comprehensive health service.

Government new clause 2—Secretary of State’s duty to keep health service functions under review.

Photo of Emily Thornberry Emily Thornberry Shadow Minister (Health)

Before lunch, I was speaking to new clause 2 and amendment 227. I have finished the main points that I wanted to make. Some of my hon. Friends may wish to say more, particularly on the Secretary of State’s duty to reduce inequalities under clause 3, but in the interests of brevity, I refer whomever might be reading the report of this debate to the comments that I made in previous debates on equalities.

Having prayed in aid the previous debates, I have some additional points to make. There is without doubt huge concern about the Secretary of State’s duty in relation to the health service—indeed, it is one of the focuses of concern. I believe that hon. Members on both sides of the Committee have been contacted by an organisation that has been collecting a massive number  of signatures—now more than 400,000—to a petition. The first thing to which it refers, as I believe hon. Members know because they have all received a number of e-mails about this, is the concern about the ongoing duty of the Secretary of State in relation to the health service. In summary, if a change needs to be made to the original Act—the National Health Service Act 2006—in relation to the Secretary of State’s duties, we need a clear reason why, and that reason needs to be one that we can explain to the 400,000 or so people who have expressed concern through the online petition.

This cannot be brushed under the carpet. It is a matter of trust. It is hugely important and has ramifications throughout the Bill. As I have already said, we regret hugely the fact that we are unable to debate the entire Bill in the light of the ongoing duty of the Secretary of State, but I have made the point and I do not intend to labour it; nor do I think that I would be able to improve it by simple repetition. On amendment 227 and the duty to reduce inequalities, let us make the measure clear and straightforward and simply give the Secretary of State a duty to reduce inequalities. If the Bill does what the Government say it will, that should not be a problem.

On new clause 2, I have raised the appointment of the board by the Secretary of State, which is not within the Nolan rules. I want confirmation of whether there are any Government amendments relating to the appointment of members of the boards of all the other bodies listed in the new clause, and whether they will be appointed under the Nolan rules. Obviously, if they are, the question arises of why they are appointed under the Nolan rules and the national commissioning board is not. Perhaps the Minister of State could explain that to us.

Photo of Grahame Morris Grahame Morris Labour, Easington

I seek your advice, Mr Gale. Is this the clause 1 stand part debate, or are we dealing specifically with amendment 227?

Photo of Roger Gale Roger Gale Parliamentary Assembly of the Council of Europe (Substitute Member)

The entire group of amendments is under debate. I am aware that the hon. Gentleman had to be at a meeting earlier, so although I appreciate that he may not have heard the whole debate, if he wishes to speak, I am happy to call him.

Photo of Grahame Morris Grahame Morris Labour, Easington

I am grateful, Mr Gale. The Minister is looking perplexed, but I did indicate earlier that I wished to speak.

Photo of Grahame Morris Grahame Morris Labour, Easington

Other hon. Members have highlighted in this debate and on previous occasions, not least in the initial exchanges between my hon. Friend the Member for Oldham East and Saddleworth and the Secretary of State in the initial consideration of the Bill, the dubious relationship between what the Government say and what the Bill actually does. During his first attendance at an evidence session, the right hon. Gentleman was asked by my hon. Friend if he could explain why he decided to repeal the duty placed on the Secretary of State to provide a comprehensive health service. His reply was,

“I have not… Clause 1 effectively reproduces the 1948 duty on the Secretary of State and it applies it to the other organisations through the rest of the Bill.”

He went on to say,

“It is in the original language. It is reproduced the same way.”––[Official Report, Health and Social Care Public Bill Committee, 10 February 2011; c. 166, Q402-04.]

The duty of the Secretary of State under the National Health Service Act 2006, repeating the language of section 1 of the National Health Service 1946, is, for the purpose of promotion of a comprehensive health service, to

“provide or secure the provision of services in accordance with this Act”.

Clause 1 of the original Bill replaced that duty—the point made by my hon. Friend that the Secretary of State sought to push to one side. It provided instead that the Secretary of State

“in exercising functions in relation to a body mentioned in subsection (2A), must act with a view to securing the provision of services for the purposes of the health service in accordance with this Act.”

For the information of the Committee, new subsection (2A) lists the NHS commissioning board, the commissioning consortia, which we are now calling commissioning groups, and local health authorities in respect of their public health functions.

Our concerns about the clause, voiced in the original Committee, were that the Secretary of State sought to reduce the accountability of his role in the delivery of health services. That was vigorously denied. The recommendations of the NHS Future Forum are clear:

“The NHS should be freed from day-to-day political interference but the Secretary of State must remain ultimately accountable for the National Health Service. The Bill should be amended to make this clear.”

The clause establishes an NHS commissioning board, the commissioning groups as well as passes responsibilities to local authorities for public health. The importance of the clause is the way in which the Secretary of State’s responsibilities would change. He would lose his current duty to provide or secure the provision of services for the purpose of the health service. Instead, the new duty on the Secretary of State is the simple promotion of the comprehensive health service, which is an important and fundamental difference of approach. [Interruption.] The hon. Member for Southport says it is the same thing, but in fact it is quite a fundamental difference, placing a direct responsibility or duty on the Secretary of State, which is what the Future Forum indicated the Government should do.

Photo of Fiona O'Donnell Fiona O'Donnell Labour, East Lothian

My hon. Friend and I share the experience of being new Members, which is perhaps why we are so perplexed. Does he share my concern that the Government are seeking to amend a piece of legislation while saying that that will make no difference to it?

Photo of Grahame Morris Grahame Morris Labour, Easington

That is spot on the heart of the matter. Time and again, our interpretation has been different and Ministers have said that we misunderstood the intent, but the NHS Future Forum, other organisations and, indeed, the Liberal Democrats have indicated that this is a major concern. It is, therefore, reasonable to highlight it.

Photo of John Pugh John Pugh Liberal Democrat, Southport

I might be wrong, but when the hon. Gentleman referred to the Bill as previously drafted, I think he said that the Government’s intention was to put in the clause only a reference to “promoting”, yet new clause 1 uses the verb “secure” twice. The hon. Gentleman should speak to the new clause, rather than to a clause that will be altered however we vote.

Photo of Grahame Morris Grahame Morris Labour, Easington

If the hon. Gentleman will bear with me, I am seeking to expose or identify the original arguments made by the Ministers. They are now moving away from that position and accepting the arguments made by Opposition members of the Committee, who, to be fair, were the first to discover that the emperor had no clothes. It seems to have been generally accepted that that is the case. A significant bone of contention is that Opposition members of the Committee believe that an elected official—a Minister—should be accountable for the performance of the NHS.

Photo of Nick de Bois Nick de Bois Conservative, Enfield North

On a point of order, Mr Gale. Perhaps you can give me some guidance. We have tight time limits and want to give due scrutiny to the Bill, so is it right for prepared texts to be used when speaking?

Photo of Roger Gale Roger Gale Parliamentary Assembly of the Council of Europe (Substitute Member)

That is not strictly a point of order, but I will seek to answer it. The Speaker has indicated, and the traditions of the House suggest, that wherever possible Members should speak from notes rather than from prepared speeches and that they should most certainly not read speeches prepared by any outside organisation. However, I have no indication at present that that is what is taking place.

Photo of Grahame Morris Grahame Morris Labour, Easington

I am grateful to you, Mr Gale. Many of the issues are highly technical. I am not absolutely familiar with the detail of the NHS Future Forum report, so I am afraid that I need to refer to a written text. It is important that the issues are placed accurately on the record.

Photo of Karl Turner Karl Turner Labour, Kingston upon Hull East

On a point of order, Mr Gale. I find it outrageous that Government Back Benchers should make such points. I have spent many days and weeks on this Committee, and have heard the Minister read prepared speeches into the record, with no criticism from either side of the Committee. I know that my hon. Friend the Member for Easington is not reading a prepared speech, but even if he was, it would be his own work, not that of an outside body.

Photo of Roger Gale Roger Gale Parliamentary Assembly of the Council of Europe (Substitute Member)

I listened very carefully to the question that was put to me and I answered it. I do not recall any suggestion being made, and I indicated that I had not seen any evidence to suggest, that the hon. Member for Easington was reading a prepared speech. I answered the question that I was asked. I have ruled on the matter. I think that we had better leave it there.

Photo of Grahame Morris Grahame Morris Labour, Easington

I am grateful to you, Mr Gale. We have identified a contentious point. An elected official—a Minister in this case—should be held accountable for the performance of the NHS, and the Secretary of  State should exercise responsibility for the provision of high-quality health care in a comprehensive national health service.

Until now, the Secretary of State has been directly responsible for securing the provision of all health services, as set out in the National Health Service Act 2006. If my memory serves me correctly, the disagreement with Opposition members of the Committee was based on the difference, which the hon. Member for Southport has just indicated, between whether the Government were delegating or conferring on other bodies the specific duties that were previously placed on the Secretary of State—essentially, delegating his responsibilities.

Photo of Daniel Poulter Daniel Poulter Conservative, Central Suffolk and North Ipswich 1:15 pm, 30th June 2011

I am following the hon. Gentleman’s argument and the case that he is making. The hon. Member for Islington South and Finsbury made the point that it is important for the Secretary of State to have a duty to reduce health care inequalities. Is the hon. Gentleman disappointed that such a duty was not put into legislation by the previous Government during their 13 years in power?

Photo of Grahame Morris Grahame Morris Labour, Easington

Mr Gale, I will confine my remarks to the issue in hand. I have some specific points in relation to health inequalities, but to move things along a little more speedily, I will not refer to them.

The Secretary of State should have a responsibility for a truly comprehensive national health service, as was previously the case.

Photo of Grahame Morris Grahame Morris Labour, Easington

The Minister says that, but our concern is that under the original Bill, those functions were delegated to other bodies—the NHS commissioning board, local commissioning groups and other organisations. The NHS Future Forum recommended that that was not an appropriate course of action, which is a view that was first highlighted by the Labour party.

Photo of Simon Burns Simon Burns The Minister of State, Department of Health

I am not sure whether the hon. Gentleman fully appreciated what the Future Forum said about this. Let me help him by reading what it said in its “Patient Involvement and Public Accountability” report. It says:

“We have heard concern from various quarters that the Secretary of State for Health will no longer have a responsibility or duty in respect of promoting a comprehensive health care service… We understand that this is not in fact the case as far as the proposed Bill is concerned.”

It continues:

The Secretary of State will remain ultimately responsible for improving the health of the nation”.

Photo of Grahame Morris Grahame Morris Labour, Easington

I am aware of what the Future Forum said. Indeed, we took evidence from representatives of the forum and questioned them at greater length in the Select Committee on Health, but I question some of the responses of Professor Steve Field on the basis on which he arrives at some of his contentions, not least in  relation to taking independent legal advice. Under questioning, Professor Field was asked whether European competition law applied and whether the Future Forum had taken independent legal advice. His response was that the only legal advice that it had taken was from the solicitors from the Department for Health. I can cite other examples of inconsistencies in Professor Field’s evidence to this Committee and the Health Committee.

Photo of Emily Thornberry Emily Thornberry Shadow Minister (Health)

I do not know whether my hon. Friend is aware that an application was made by Opposition Members to have an expert in international competition law called to give evidence, but that was voted down by the Government.

Photo of Grahame Morris Grahame Morris Labour, Easington

Yes, I was aware of that. It is disgraceful that the Government were not prepared to clarify this issue and have some independent legal advice.

John Pugh rose—

Dan Byles (North Warwickshire) (Con) rose—

Photo of Grahame Morris Grahame Morris Labour, Easington

I am happy to give way, but I am being berated for not making enough progress.

Photo of Dan Byles Dan Byles Conservative, North Warwickshire

I am a little concerned about the hon. Gentleman’s comments about the apparent inconsistencies in Professor Field’s evidence. Are you accusing him of incompetence or of misleading us? What exactly are you saying about Professor Field?

Photo of Roger Gale Roger Gale Parliamentary Assembly of the Council of Europe (Substitute Member)

Order. The hon. Gentleman must address his remarks through the Chair. I am not commenting upon it at all.

Photo of Grahame Morris Grahame Morris Labour, Easington

I am grateful to the hon. Gentleman for raising that because my observations are based upon fact. It calls into question the reliability of Professor Field’s evidence.

Photo of Grahame Morris Grahame Morris Labour, Easington

I will in a moment. When Professor Field came before the Health Committee in his capacity as one of the leaders of the Future Forum, he was asked about its role and independence. He was asked whether the Future Forum had taken representations from the trade unions and the staff involved in the health service as legitimate stakeholders in the exercise and whether they had raised with him their concerns about the fragmentation of the service caused by implementation of the proposals and the threats to national bargaining on pay and conditions. He replied that no such representations had been received, yet the written evidence that this Committee received on Tuesday from the trade union representatives Professor Field consulted states that they had made that very point. To my mind and that of many other people, hat calls into question the reliability of Professor Field’s evidence. I do not know if he is a reliable witness on that basis. He said one thing to the Select Committee and something  completely different to the Bill Committee, which was directly contradicted by a stakeholder group with whom he had had dealings. That is a simple point.

Photo of Fiona O'Donnell Fiona O'Donnell Labour, East Lothian

I am sure my hon. Friend will remember that on Tuesday Professor Field also acknowledged that he had omitted caps on private patients in foundation trust hospitals from the report.

Photo of Grahame Morris Grahame Morris Labour, Easington

That is a relevant point when the whole basis of this Committee’s deliberations is the recommendations of the Future Forum report. Many of the issues that have been raised have not been taken up either as clauses referred back or as Government amendments. There is an issue of consistency and fairness in this.

Returning to the clause stand part debate, we were dealing with delegating or conferring duties from the Secretary of State and on to other bodies. It was the Minister or the Secretary of State, I think, who in their evidence coined the expression that when the bedpan is dropped the noise should be heard in Whitehall.

Photo of Simon Burns Simon Burns The Minister of State, Department of Health

I rise to help the hon. Gentleman. That is actually a quote from his hero, Nye Bevan.

Photo of Owen Smith Owen Smith Shadow Minister (Wales)

He is my great hero and the bedpan in question was in Tredegar.

Photo of Grahame Morris Grahame Morris Labour, Easington

Anyway, it was referred to in this Committee as a way of saying that the Secretary of State should be in tune with problems and issues in the health service.

I accept that, under current arrangements, it is only possible for the Secretary of State to do that. My hon. Friend the Member for Islington South and Finsbury made an excellent point this morning about the Secretary of State for Defence not being responsible for equipping individual soldiers with items of kit—army boots were given as an example—but is ultimately responsible for ensuring that the Army is properly equipped and able to deal with the tasks that it faces. Similarly, I am not suggesting that the Secretary of State should be hands-on and micro-manage, as Government Members often say, every single issue. I accept that he cannot do that because, at the moment, those functions are exercised through structures such as the strategic health authorities and primary care trusts, which will not exist under the new arrangements. It is therefore all the more important that the duty is conferred upon an accountable individual. Despite the delegation under the current arrangements, it is quite clear that the SHAs and the PCTs remain under the duty of care of the Secretary of State, who—this is the key point—remains accountable to Parliament for the provision of services.

Despite the Secretary of State’s denials to the Committee, the Opposition have been clear from the very start that the duties outlined in the Bill would no longer be delegated and that direct responsibility would be taken away from the Secretary of State through the modified clause 1. It is also clear that direct responsibility for securing the provision of health services would be conferred on the bodies that I referred to earlier—the NHS commissioning board and the local commissioning  groups—and that provision is set out explicitly in clauses 5 and 6. We will deal with those later, so I will not say any more about that.

Government new clause 1 changes the role of the Secretary of State, but it is disingenuous to pretend that the original duty on the Secretary of State has been fully applied. As I have said, these concerns have been raised by several organisations and, indeed, by the Liberal Democrats as one of the three key issues. The hon. Member for Southport mentioned the number of e-mails that he has received, and I have received a similar number, including some that also highlighted the duties that are to be placed on the Secretary of State. New clause 1 reiterates the

“duty to promote comprehensive health services” and, although it uses the original language, it adds a key point:

“For that purpose, the Secretary of State must exercise the functions conferred by this Act so as to secure that services are provided in accordance with this Act.”

We have an ever more complicated set of intertwining and cross-cutting stipulations about who is responsible for what.

I found the grouping of amendments slightly confusing this morning, Mr Gale, but I now appreciate that we are dealing with similar themes. I shall refer briefly to clause 5 because it covers some of the same elements. That clause creates a new section 1D of the 2006 Act, whose wording is similar to clause 1, giving the NHS commissioning board its general duty. This group of amendments also affects clause 5, but new section 1D(2) remains, meaning that the board will be concurrently bound with the Secretary of State to the duty in section 1(1) of the 2006 Act, which is to promote comprehensive health services—except for public health, which is going to local government. However, where the duty on the Secretary of State is to act

“with a view to securing the provision of services”,

that has now been changed, and it remains applicable to the board.

Government amendment 55 outlines the board’s duty to

“exercise the functions conferred upon it by this Act in relation to the commissioning consortia so as to secure that services are provided for those purposes in accordance with this Act.”

However, the changes to section 3 of the 2006 Act, which is the successor to section 3 of the 1946 Act, remain intact, and it currently states that the Secretary of State

“must provide throughout England, to such extent as he considers necessary to meet all reasonable requirements”.

For the Committee’s information, those requirements are:

“ (a) hospital accommodation,

(b) other accommodation for the purpose of any service provided under this Act,

(c) medical, dental, ophthalmic, nursing and ambulance services,

(d) such other services or facilities for the care of pregnant women, women who are breastfeeding and young children as he considers are appropriate as part of the health service,

(e) such other services or facilities for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness as he considers are appropriate as part of the health service,

(f) such other services or facilities as are required for the diagnosis and treatment of illness.”

As for the issue of consistency between clause 1 and some of the other clauses where similar changes would make sense, clause 9, which we will come to later, replaces the duty on the Secretary of State that we have just been talking about with a duty on the commissioning consortium. As the Minister kindly pointed out this morning, we have changed the nomenclature, so that the commissioning consortium

“must arrange for the provision of the following to such extent as it considers necessary to meet the reasonable requirements of the persons for whom it has responsibility”.

Again, on ensuring consistency and a similar approach throughout all the clauses, clause 10 will add to the 2006 Act new section 3A, which provides that consortia

“may arrange for the provision of such services”—

Photo of Roger Gale Roger Gale Parliamentary Assembly of the Council of Europe (Substitute Member) 1:30 pm, 30th June 2011

Order. When the hon. Gentleman got to clause 5, he was referring to Government amendments, which was fine and in order. Clauses 9 and 10 will be considered through other amendments, so I trust that he will not seek to speak on the same subject when we reach those clauses.

Photo of Grahame Morris Grahame Morris Labour, Easington

I accept that, Mr Gale. Overall, the Government amendments go some way towards restoring the duty on the Secretary of State. I acknowledge that, but I regret that the Government were not prepared to admit that initially when Opposition Members made exactly the same arguments in the original Bill Committee. As I say, the Government’s amendments go some way towards restoring the duty on the Secretary of State, and apply it to the commissioning board with regard to securing the provision of services, but only in so far as it is exercising functions conferred by the Bill. Indeed, the Bill as amended by clause 1 gives the commissioning board a duty to ensure that services are provided through its functions in relation to the local consortia, but specific services are left to local determination.

Despite the Government’s amendments, the Bill as a whole still considerably weakens the Secretary of State’s duties and places the most significant weight of duty at the national level, with the NHS commissioning board. If there is not an accountable individual—a politician in the form of the Secretary of State—and those duties are exercised by the national NHS commissioning board, Opposition Members will have concerns about accountability issues. We have already been told that we should refer to clinical commissioning groups, rather than commissioning consortia. The legal framework places the bulk of power with clinical commissioning groups, which will be able to determine what services are provided on the NHS to a far greater extent than local commissioners ever could under existing arrangements.

Photo of Simon Burns Simon Burns The Minister of State, Department of Health

It has been extremely useful to be able to talk this morning and this afternoon about the Secretary of State’s duty to promote a comprehensive health service. That is an important point, and I am pleased to have the chance to explain to the Committee the changes that we have made to clause 1, and the reasons for the changes, particularly in clause 1(2).

The Government’s amendments respond to the Future Forum’s recommendation that

“the Secretary of State’s responsibility for promoting a comprehensive health service should be made clearer to the public in order to allay any concerns and remove any confusion”.

The Future Forum was right to point out that the drafting of the Bill is not clear enough, and we are amending the wording to remove any doubt that the Secretary of State remains ultimately accountable for the NHS.

We intend clause 1 not to stand part of the Bill, and in its place we propose new clause 1. Unlike clause 1, new clause 1 sets out section 1 of the 2006 Act, as revised, in its entirety. Section 1(1) of the 2006 Act remains unchanged since the founding National Health Service Act 1946. The provision is identical to the wording in the 2006 Act, including the words:

The Secretary of State must continue the promotion in England of a comprehensive health service”.

That duty has stood the test of time for more than 60 years. It is the core duty that underpins the NHS. It has never changed. We are not going to change it, and we are amending the Bill to make that crystal clear. It is that duty to which we are referring when we say that the core duty on the Secretary of State remains the same.

Owen Smith Will the right hon. Gentleman give way?

Photo of Simon Burns Simon Burns The Minister of State, Department of Health

I shall make a little more progress first. Section 1(3) of the 2006 Act would also remain unchanged. The provision reproduced in the Bill is almost identical to the provision set out in the 2006 Act, which derives from the founding NHS Act of 1946. Services will continue to be free at the point of use where they are now.

Photo of Fiona O'Donnell Fiona O'Donnell Labour, East Lothian

Will the right hon. Gentleman give way?

Photo of Simon Burns Simon Burns The Minister of State, Department of Health

I will finish this point first and then give way to the hon. Member for Pontypridd.

The only difference in wording is the reference to services that are part of the health service, rather than services that the Secretary of State provides or secures. That ensures that the prohibition on charging applies to the services commissioned by the board or clinical commissioning groups. I reassure the hon. Member for Oldham East and Saddleworth that it includes all free services that form part of the health service, so it covers services commissioned by the board, clinical commissioning groups and, in relation to public health, local authorities. As set out in the Government response to the Future Forum report, we have committed to not introducing any new charges.

Photo of Owen Smith Owen Smith Shadow Minister (Wales)

The right hon. Gentleman will forgive me if I misheard him—perhaps he was going on to explain this—but did he not say a moment ago that clause 1 is unchanged? If that is the case, is that not effectively what the Secretary of State said, in slightly different language, in his oral response to the Future Forum? Is the reality not, as I hope the Minister will go on to explain, that clause 1(1) and clause 1(3) are the same as in the 2006 Act, but clause 1(2) is fundamentally different? Therefore, is it not slightly disingenuous of the Government to suggest that they are replicating the 2006 Act? In fact, there are slightly different words,  although the spirit of what is proposed is the same. The NHS will be placed at one step’s remove from the Minister.

Photo of Simon Burns Simon Burns The Minister of State, Department of Health

What I said to the Committee was basically an echo of the first part of what the hon. Gentleman has said. I said that section 1(1) of the 2006 Act remains unchanged, and that section 1(3) remains unchanged, and I then explained what the change to clause 1(2) was and why.

The Bill originally replaced the Secretary of State’s duty in section 1(2) to

“provide or secure the provision of services” with a duty to secure the provision of services—a duty to

“act with a view to securing the provision of services”.

That was for two main reasons: first, because the Secretary of State—that is, the Department of Health—does not in practice provide or commission services, because that function is delegated to SHAs and PCTs; and, secondly, because commissioning functions will in future be conferred directly on a dedicated NHS commissioning board and clinical commissioning groups, acting subject to the mandate and the standing rules.

Hon. Members will, of course, be familiar with the fact that the mandate is issued to the commissioning board by the Secretary of State. That was wrongly interpreted by some as a reduction in Ministers’ responsibility. We have therefore amended the Bill to make it clear that the Secretary of State will retain ultimate accountability for securing the provision of services. In future, in relation to the NHS, the Secretary of State, rather than delegating to NHS bodies the duty to provide or arrange services directly, will exercise his duty through his relationship with the NHS bodies. For example, he will set the mandate for the NHS commissioning board, report annually on the performance of the comprehensive health service, and hold the arm’s length bodies, such as the NHS commissioning board and the regulators, to account.

In reply to the question from the Member for Islington South and Finsbury, the Secretary of State has powers to appoint and remove the chair and non-executive directors in each of the arm’s length bodies listed in new clause 2. He will have extensive powers to intervene in the event of significant failure. I will explain that in further detail for the benefit of the Committee.

Photo of Emily Thornberry Emily Thornberry Shadow Minister (Health)

The right hon. Gentleman says that he has answered my question. Perhaps I was not sufficiently clear. My question was about the appointment of the chair and non-executive directors in relation to all the arm’s length bodies, not their removal. Will he help us by saying whether, avoiding the Nolan principles, the Secretary of State will have the power to appoint the boards of all the arm’s length bodies?

Photo of Simon Burns Simon Burns The Minister of State, Department of Health

I am sorry if the hon. Lady thinks that. I was responding to a point that I thought she made before lunch. I was going to come on to her subsequent point about the Nolan principles, but I will deal with it now, as she has intervened. The Nolan principles and the code of practice of the Office of the Commissioner for Public Appointments will apply to all ministerial appointments to the arm’s length bodies. That includes  the chairs and the non-executives of Monitor, the CQC, the National Institute for Health and Clinical Excellence, the Information Centre, and the NHS board.

The Secretary of State will also have extensive powers to intervene in the event of significant failure. As I said, I will explain that in detail for the benefit of the Committee because I think it would be useful given some of the comments that we have listened to during this debate.

The Secretary of State has the power, under proposed new section 13W in clause 19, to intervene if the board fails to discharge its functions properly or at all. In the first instance, he could direct the board on how it carries out its functions. If it fails to comply with those directions, the Secretary of State could either discharge the function himself, or make arrangements for another body to do so on his behalf. Clearly, that would be a last resort. The aim would always be to ensure that the NHS commissioning board carries out its functions in the way that Parliament intends. That would not give the Secretary of State a power to provide services. The board will have two main functions—first, a function to commission certain services and, secondly, functions in relation to clinical commissioning groups, such as allocating funding, which it must exercise so as to secure the provision of services. The Secretary of State could not use his intervention powers to exercise a function that the board does not have. I hope that the Committee now understands that the Secretary of State has all the necessary and appropriate functions in the Bill to enable him to secure the provision of services.

Photo of John Pugh John Pugh Liberal Democrat, Southport

Does it not follow from what the Minister says about the step-in powers that the Secretary of State has a clear role in ensuring provision when it is otherwise deficient? He would thus retain the central role, which I think people want him to have, in provision without allowing a lot of commissioning to take place on a local and regional basis.

Photo of John Pugh John Pugh Liberal Democrat, Southport

Will the Secretary of State retain a role in provision, and ensure that provision takes place when commissioners fail to provide a comprehensive health service?

Photo of Emily Thornberry Emily Thornberry Shadow Minister (Health)

I still do not understand the Minister’s argument; let me make that clear. As section 1(2) of the National Health Service Act 2006 states:

“The Secretary of State must for that purpose provide or secure the provision of services in accordance with this Act.”

The Minister does not want that in the clause, so he has changed it, but I do not understand why. Under the previous regime, if I understand what the Minister has said, the Secretary of State had a duty to provide, and did so by delegating powers to others. Is the Minister saying that that will not happen now—that the Secretary of State will not have a duty to provide, and will not do that by delegating powers to others?

Photo of Simon Burns Simon Burns The Minister of State, Department of Health

Opposition Members have some understanding of the position, but I will go into slightly more detail, in the hope that that will clarify the situation. As there is a misunderstanding about the duty to provide services, I will talk hon. Members through it.

Providers have the function of providing services. Commissioners have duties to commission services from providers. The Secretary of State and the national bodies have a duty to ensure that those activities take place as they should. I am sure that Opposition Members do not realistically intend the Secretary of State personally to provide health services, but that is what reinstating the duty to provide would mean, as set out in the relevant amendments. The critical thing is that mechanisms are in place to ensure that services are commissioned and that providers provide those services, and that there are mechanisms to circumvent problems and ensure that services are provided. The Secretary of State, in extreme cases, has the ultimate sanction to ensure that that continues if there is a problem.

Currently, the Secretary of State’s duty to provide services can be fulfilled with the benefit of two additional provisions, which are the power in section 12 of the 2006 Act to commission services instead of providing them directly, and the power in section 7 of that Act to delegate functions to SHAs and PCTs. The Secretary of State takes advantage of both those provisions, so that PCTs commission services from providers on his behalf. That is the existing system, which no one seems to object to.

The proposed new architecture sets out far more clearly where responsibility should lie, rather than relying on a system of delegation. I hope that helps to reassure the Opposition Front-Bench team, although I suspect that it will not.

Photo of Emily Thornberry Emily Thornberry Shadow Minister (Health)

This is the nub of the difference. Previously, health providers commissioned on behalf of the Secretary of State—no one expected him to go and peel someone’s bunions for them. Other people did that on his behalf, but he was ultimately responsible, and he had political accountability. We are no further forward than when the Bill first appeared in the original Bill Committee. We have the Secretary of State setting up architecture and saying, “Right, I’m the Secretary of State, but you’re the commissioners, so I’m giving you that job. It’s nothing to do with me, guv. You go and commission. If you do it wrong, I may be able to sack you.”

Photo of Emily Thornberry Emily Thornberry Shadow Minister (Health)

“I will be able to”, then. There will be something in the way, however. You are putting obstacles in the way of the Secretary of State’s direct accountability to the public, through Members of Parliament, and you are clinging on to—sorry, obviously you are not, Mr Gale. The Secretary of State and the Department are clinging on to a change that people fundamentally do not want. Some 400,000 people have signed a petition urging the Government to drop the reforms. All that the Minister has done is confirm that the changes made are simply cosmetic; the fundamental point remains the same. Clause 1(2) addresses the power of the Secretary of State, and if you will not change that, you are clearly not bona fide on that point.

Photo of Simon Burns Simon Burns The Minister of State, Department of Health

I am sure that you have nothing to do with it, Mr Gale, but to respond to the hon. Lady, this is the nub of the problem. After all our debates, and after all that she has presumably studied and read, the hon. Lady does not understand the ethos behind our modernisation of the NHS—or seeks to misunderstand it in public. The principle is this. We said before we came into power that we did not want political interference and micro-management in the day-to-day running of the NHS, although we did want high-quality services based on the core principles of the NHS.

The Secretary of State will provide a mandate to a national commissioning board to drive the commissioning of care through clinical commissioning groups and, in certain cases, through direct commissioning. However, as we keep saying, the Secretary of State will still be responsible for the health service, and even the Future Forum. When Opposition Members like what the forum has said, they cite it with admiration, saying how wise the forum is, but if it says things that do not agree with their prejudices, they say that it is wrong, or that it has not consulted or whatever.

If it is any help to him, I correct the hon. Member for Easington. If he would care to read the Future Forum’s report, he will see that on page 37 it says that among the more than 250 national stakeholder organisations that it consulted at its many meetings were the unions, although the hon. Gentleman did not seem to think so.

Grahame M. Morris rose—

Photo of Simon Burns Simon Burns The Minister of State, Department of Health

I regret saying that, because the hon. Gentleman wishes to intervene. First, however, may I finish answering the hon. Member for Islington South and Finsbury?

The hon. Lady constantly repeated the mantra that the Secretary of State cannot be held to account by Parliament. That is just not true. I shall explain why in simple language. The Secretary of State is responsible for a comprehensive health service. He produces a mandate, saying what he expects for taxpayers’ money, through the commissioning board and the other layers of commissioning. That mandate will be placed before Parliament, which can then debate it—at Question Time and in Adjournment debates, Opposition day debates and Government debates. That is holding the Government to account. Similarly, the commissioning board will produce an annual report that will be placed before Parliament. For the same reasons, it too will be accountable.

Even in a modernised NHS, I do not think that there will be any changes. Members will still be writing to Ministers about local health issues, about constituents’ health problems and so on, and they will also raise health matters at Question Time and in debates, asking about the configuration of the service or whatever. I cannot see how there could be a reduction in the accountability of Ministers and the Government to Parliament in the area of health provision. It is a fact, and hon. Members will have to live with that. They must accept that it is not changing or being diminished from what happens now, with hon. Members being able to hold the Government to account.

I wish to make some progress; first, however, I shall give way to the hon. Member for Leicester West.

Photo of Liz Kendall Liz Kendall Shadow Minister (Health)

The truth is that the Government are in a mess over this. They wanted to push responsibility away and down, but that has frightened people and Ministers are now having to change the legislation. The Minister says that he does not want micro-management, but later amendments give the NHS board the power to tell consortia how often to hold board meetings, what the groups should be called and how to obtain clinical advice. That is micro-management.

Photo of Simon Burns Simon Burns The Minister of State, Department of Health

First, I assure the hon. Lady—she is a reasonable person—that the Government are not in a mess over this. Governments rarely do this, so she might find it strange, but, because we care so much about the NHS and its future success, we were prepared to listen and to pause. If we can strengthen and improve the proposals in light of the criticisms that have been raised—some genuine, some less genuine—we believe it is right to do so. We have listened and made changes that strengthen and improve the Bill and that meet some of the genuine concerns of organisations and individuals, both inside and outside the NHS. It shows our strength of character that we were prepared to do that. Many Governments would not do it; they would carry on regardless.

It is ironic that the issues that the hon. Lady raised on what management and clinical commissioning groups should do are things that have been called for to improve transparency and accountability.

Photo of Simon Burns Simon Burns The Minister of State, Department of Health

Indeed. It is all part of holding to account and having transparency, yet we are still criticised for it. Frankly, we have to move forward on the basis—[ Interruption. ] The hon. Lady has had her chance. She has blown it, and we are going to move on.

Photo of Simon Burns Simon Burns The Minister of State, Department of Health

I said that I would give way in a minute, but let me finish. I did not expect to get any credit from the Opposition for doing the grown-up thing by listening and being prepared to make improvements, but I find it a little ironic that they criticise us for doing what they have urged us to do for a long time. Because I want to make progress, I am now going to give way to the hon. Member for Easington, as I promised. I will then make progress.

Photo of Grahame Morris Grahame Morris Labour, Easington

The Minister is being generous. May I set the record straight? He said that I had suggested that the Future Forum had not consulted staff as a stakeholder, but I did not say that.

Photo of Grahame Morris Grahame Morris Labour, Easington

The Minister suggested that that is what I said. It is not that the Future Forum did not consult them; my issue is that when I specifically asked Professor Field whether the trade unions had  raised their concerns—he gave evidence to the Select Committee on Health on 16 June, just after the report was published—and what the implications were in the NHS constitution for the changes to staff pay and conditions, he said:

“When we met with them, that question did not come up in the discussion with the unions.”

When the trade unions appeared before this Committee on Tuesday afternoon, I specifically asked that question of Gail Adams, and she responded: “As the—”

Photo of Roger Gale Roger Gale Parliamentary Assembly of the Council of Europe (Substitute Member)

Order. Much has been made of the amount of ground that we have to cover. We will not cover it if we have over-lengthy interventions.

Photo of Simon Burns Simon Burns The Minister of State, Department of Health

I understand that one of the hon. Gentleman’s complaints is that representatives of the unions were not consulted as part of the listening process. If I have misunderstood, I apologise profusely; no doubt we will both be consoled and reassured that the proof is in the pudding. The report shows that the unions did have an opportunity to input their views. I cannot comment on what went on in those meetings, because it was an independent forum at arm’s length from Ministers. I am not familiar with the minutiae of the meetings that were held by Professor Field and his colleagues.

May I get back to a more general point on the question of accountability? I have spoken, partly via the intervention of the hon. Member for Islington South and Finsbury, about accountability vis-à-vis Parliament, but I would also like to deal with the questions that were raised this morning about accountability and legal liability. I would like to make the point, as I have done already, that accountability to Parliament and legal liability are separate, albeit related, matters. The Secretary of State is accountable to Parliament for the health service, and that is not altered one jot by the Bill. In relation to legal liability, the board and the clinical commissioning groups have the primary legal responsibility to commission NHS services, as I have said.

Photo of Simon Burns Simon Burns The Minister of State, Department of Health

The hon. Lady made an interesting noise—I am too polite to suggest what it sounded like, but it is related to a pasture. [ Laughter. ] I think we will start again.

Photo of Simon Burns Simon Burns The Minister of State, Department of Health

In relation to legal liability, the board and clinical commissioning groups have the primary legal responsibility to commission NHS services, and they are legally liable for a failure to carry out that responsibility. The Secretary of State is not directly liable for a failure on the part of the board or a clinical commissioning group, or a failure by a provider. He is not liable, for example, if a hospital or a clinical commissioning group is negligent, but he is liable and could be the subject of a claim for judicial review by an affected member of the public if he fails to carry out his statutory duty under the legislation, including his duty to exercise his functions so as to secure the provision of health services under proposed new section 1(2) of the 2006 Act.

Opposition Members have tabled amendment 1, which would restore the Secretary of State’s original duty to

“provide or secure the provision of services in accordance with this Act.”

Critics mistakenly believe that that duty is fundamental to the comprehensive service, but it is not. It is simply a means of achieving the overarching aim of promoting a comprehensive health service, not the test of whether that aim is being achieved. It does not even create a free-standing power itself. The duty in proposed new section 1(2) of the 2006 Act is a duty to

“provide or secure the provision of services in accordance with this Act.”

The words

“in accordance with this Act” mean that the actual powers and duties to provide and commission are set out elsewhere in the Act.

As I explained earlier, in the new legal framework that we propose, the Secretary of State would no longer have general powers to provide or commission services directly himself. Under the Bill, the duties and powers to commission NHS services are transferred to the NHS commissioning board and clinical commissioning groups, as I mentioned earlier.

The Secretary of State can provide or commission services himself, but only in exercise of his public health functions. If we kept the duty to provide, it would be a wholly inaccurate reflection of the framework contained in the rest of the Bill, which confers the functions of commissioning NHS services on the NHS board and clinical commissioning groups. If the Secretary of State were to retain those powers in parallel, that would enable him to cut across the board and clinical commissioning groups, undermining the mandate that he issues and the stability of the system, and opening the door to political micro-management, as I said near the start of my comments.

Photo of Emily Thornberry Emily Thornberry Shadow Minister (Health)

What the Minister has just said is of huge importance, and I want to put on the record our alarm. If, for example, someone wants to take out a personal injury case because they have been treated badly in hospital following an accident, at the moment they would sue the Secretary of State. As I understand it, what the Minister has said indicates a fundamental shift of direction.

Photo of Emily Thornberry Emily Thornberry Shadow Minister (Health)

You take out the action against the Secretary of State. If I have got that wrong, I stand corrected, but it has highlighted exactly what our problem is. It is all very well for the Minister to say, “We can’t change subsection (2), because if we do, it will be inconsistent with the rest of the Act.” That is the whole point; that is the point of what we are saying. We are saying that the Bill is wrong. It is an attempt to take away political power from the Secretary of State and hand it to a group of quangos that do not have the same political accountability, in a cold climate of £20 billion- worth of—

Photo of Roger Gale Roger Gale Parliamentary Assembly of the Council of Europe (Substitute Member)

Order. I am sorry, but the hon. Lady is making a speech. I try to be tolerant in these Committees, but hon. Members must understand the difference between an intervention and a speech. If the hon. Lady wishes to catch my eye again when the Minister has finished speaking, she may do so.

Photo of Simon Burns Simon Burns The Minister of State, Department of Health

This is the nub of the matter. I just fundamentally disagree with the hon. Lady’s interpretation. She talks as though the situation is a new revelation. It is not. The whole ethos of the policy from before the election was that we did not want political interference in and micro-management of the NHS on a day-to-day basis. That has been the guiding principle, along with improving and enhancing patient care and giving greater decision-making powers to clinicians to be able to look after their patients.

Photo of Simon Burns Simon Burns The Minister of State, Department of Health

No, I am sorry but I will not give way at all, because I want to finish answering some of the points that the hon. Lady made in the course of her rather long intervention. She said that, at the moment, an individual would sue the Secretary of State. That is not the case. If there is a problem, action is taken now against the PCT in the case of commissioners, or against the trust in the case of providers. Neither of them is the Secretary of State. The hon. Lady is wrong. The situation is the same now; it will just apply to different bodies. There is no sea change or difference in that.

I will move on. Hon. Members have asked what removing the words “to provide” means. The short answer is that although the Secretary of State must ensure that the NHS services are provided by, for example, exercising powers over the NHS commissioning board and other bodies, he has no responsibility to provide those services himself.

We should consider what a duty to provide means. A duty to provide involves having the premises and the staff necessary to offer health services directly. At present, the Secretary of State has a duty to provide, but even under the current system, that does not reflect the reality of a situation in which commissioning and provision rest with NHS bodies, not the Secretary of State. Retaining a duty to provide would not be an appropriate way forward for NHS services; it would be a retrograde step and utterly inappropriate, given the network of NHS commissioners and providers already set up to commission and provide services.

It is worth noting that, subject to a few exceptions, the duty in section 1(2) of the 2006 Act to

“provide or secure the provision of services”,

and the section 3 and 12 functions of providing or arranging the provision of particular services, have for many years not been fulfilled by the Secretary of State’s providing or commissioning services directly. Those functions are delegated to SHAs and PCTs. Although there is a small amount of direct provision of community services by PCTs, that is due to cease, because PCTs are almost entirely commissioning bodies.

In future, the split between commissioning and provision, which Labour Members supported while in government, will be even clearer, so that the board and clinical commissioning groups will not have the function of  directly providing services. The current system of delegated functions held by the Secretary of State but exercised by other bodies has led to confusion, as the debate today has shown. The framework established by the Bill will improve transparency and strengthen accountability by ensuring that all parts of the system have their functions conferred on them directly by Parliament in primary legislation.

Government amendments 55 and 56 make changes to the board’s core duty in clause 5 that are consequential on the changes to the Secretary of State’s core duty in clause 1. Amendment 55 replaces the current drafting of

“act with a view to” with the words

“secure that services are provided”,

thus restoring the alignment between the drafting of the Secretary of State’s and the board’s overarching duties.

Amendment 56 sets out the Secretary of State’s public health functions, which were originally in clause 1 of the Bill but would be removed by the introduction of new clause 1. The provision is restated here because this is the first place in the Bill in which a clause distinguishes between the Secretary of State’s NHS and public health functions.

Government new clause 2 introduces a new duty on the Secretary of State to keep health service functions under review. The purpose of that is to make it clear in legislation that the Secretary of State is ultimately accountable for ensuring that the national arm’s length bodies, such as the NHS commissioning board, Monitor and the CQC, are performing their functions effectively. This duty is backed by extensive powers of intervention in the event of significant failure.

New clause 2 also gives the Secretary of State the power to report on how the national level organisations have discharged their functions as part of his annual report on the performance of the health service.

Photo of Simon Burns Simon Burns The Minister of State, Department of Health

I will make progress. The hon. Lady has had many opportunities to contribute to the debate, and we need to move on because we are timetabled and there is still quite a lot to do.

I now turn to Opposition amendment 227, which relates to the Secretary of State’s duty to reduce inequalities. Helpfully, we established during the previous and extensive debates on this issue that we all supported the principle set out by clause 3, which is the need to reduce health inequalities, and agreed that it should be at the heart of Government decision making. Let me take the opportunity to remind hon. Members that this will be the first time that there has ever been a specific legal duty in relation to reducing inequalities in the health service in primary legislation. That reinforces our determination and commitment to reducing inequalities.

In the country, we have a good understanding of what health inequalities are and different ways in which we can work to address them. For example, we have accepted the analysis in the Marmot review and emphasised our commitment to a social determinants approach.

Photo of Simon Burns Simon Burns The Minister of State, Department of Health

No, I will not. This social determinants approach has been shared across Government and in our partnerships with others, including the charitable and voluntary sector. It has informed the development of other reviews, such as the Frank Field child poverty review and the Graham Allen review on early intervention, as well as Government strategies on social mobility, child poverty and, most recently, the natural environment White Paper.

We will continue to work through the ministerial sub-committee on public health and other bodies to underline the importance of the social determinants approach in tackling health inequalities. However, we also know that there is no easy answer or quick fix to reducing health inequalities. It is not something that the Department can do alone. The causes of and remedies for health inequalities lie across many areas of Government policy and beyond. Health inequalities are a societal problem.

The amendment would give the Secretary of State sole responsibility for the reduction of health inequalities, but that is not something that he can do alone, and it is not solely within the gift of the Department for Health. The duty in the unamended clause is more practical and achievable. It is intended to give him a duty to do the things that he can do on inequalities. The concern behind this amendment is that the need to strengthen the inequalities duty on the Secretary of State is misplaced. I will explain why the amendments do not do what hon. Members wish to achieve.

The clause as it stands reflects the language set out in the Equality Act 2010, which applies to all public sector organisations, including the Department for Health and NHS bodies. It places a legal obligation on the Secretary of State to consider how he can reduce inequalities and what more can be done to reduce inequalities whenever he is making any decision in relation to the health service.

The duty applies when the Secretary of State is exercising functions in relation to other bodies and not just when he is acting directly. That is important because it embeds the need to consider inequalities across all the Secretary of State’s functions relating to the health services and it entrenches those principles in all departmental policies.

By contrast, the duty proposed by the amendment is narrower, as it will capture only the actions that the Secretary of State can take directly. It fails to recognise that in practice, much of the way in which the Department of Health can influence health inequalities is through the policies and objectives that it sets for other organisations. I am sure that hon. Members would not wish to limit the Secretary of State’s obligations in this way.

The amendment is not necessary. The clause as it stands is more practical. The duty it places on the Secretary of State is more wide reaching and will achieve exactly what the amendment aims to do. It is for those reasons that I oppose the amendment. In summary, I invite members of the Committee to join me in supporting Government amendments 55, 56, new clause 1 and new clause 2 and in agreeing that the current clause 1 should not stand part of the Bill.

I hope that Opposition Members understand my reasons for rejecting amendments 1 and 227. However, should they wish to press the matter to a vote I invite my hon. Friends to join me in opposing the amendments. Because it is a little complicated, I will explain once more: I hope my hon. Friends will join me in voting for new clause 1 and new clause 2, Government amendments 55 and 56 and—this is the bit that may come as a bit of a surprise—voting against clause 1 standing part of the Bill and against amendments 1 and 227.

Photo of Grahame Morris Grahame Morris Labour, Easington 2:15 pm, 30th June 2011

On a point of order, Mr Gale. Is it possible to speak in support of amendment 227 or have we finished this group?

Photo of Roger Gale Roger Gale Parliamentary Assembly of the Council of Europe (Substitute Member)

We had—possibly partly in your absence, Mr Morris—a fairly comprehensive debate on amendment 227. The ground was covered at some length this morning so I do not think it would be appropriate at this stage.

Photo of Emily Thornberry Emily Thornberry Shadow Minister (Health)

I am attempting to check what the Minister said about legal actions and I am afraid that my research is not fast enough. However, I would appreciate a note about the changes to legal liability so that we are absolutely clear about that. It is a concern.

Photo of Simon Burns Simon Burns The Minister of State, Department of Health

May I give the hon. Lady this assurance? I want to be helpful and I understand that it is a complex issue. If, after she has read my comments in this debate, she still wants a note, I will be more than happy to provide one.

Photo of Liz Kendall Liz Kendall Shadow Minister (Health)

I want to press the amendment to a vote.

Question put, That the amendment be made.

The Committee divided: Ayes 8, Noes 13.

Division number 4 Decision Time — Clause 1 - The Secretary of State and the comprehensive health service

Aye: 8 MPs

No: 13 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Clause 1 disagreed to.

Photo of Roger Gale Roger Gale Parliamentary Assembly of the Council of Europe (Substitute Member)

No. Let me explain again. We take the clauses in sequence as they are on the amendment paper. The other items will all be voted on, including for the hon. Lady, when we come to clause 3, amendment 227. The next item on the agenda is clause 2.