Health and Social Care Bill

My Lords, I should declare a non-financial interest as an honorary fellow of three of the royal medical colleges associated with the health service. One of my earliest clients was the Scottish branch of the BMA, and the first time I appeared as a counsel in this House—when the House had jurisdiction to deal with these matters—was as counsel for the Medical and Dental Defence Union. So I have had a fairly long interest in health matters, including the health service, up to the present time. We have all had a good deal of correspondence about the profit motive in relation to the health service. It is worth reminding ourselves that the main suppliers to the health service, both of drugs and equipment, are powerful industries in the private sector, and therefore the health service has to be able to deal with these in an effective manner. But the main issue for me is that raised by your Lordships’ Constitution Committee. Its report, as we have come to expect, is clear, comprehensive and concise, and the Government have given a full response. What are required now are decisions. The principal issue is the effect of deleting from the statutory duties of the Secretary of State the first part of the provision in Section 1(2) of the NHS Act 2006 that: "““The Secretary of State must for that purpose provide or secure the provision of services in accordance with this Act””." It is the taking out of the word ““provide”” that is a small but extremely important amendment. I agree entirely with the noble Lords, Lord Owen and Lord Hennessy, that this is a vital matter. The committee referred to the decision of the Court of Appeal in Coughlan in which my noble and learned friend Lord Woolf, then Master of the Rolls, said that the Secretary of State, "““has the duty to continue to promote a comprehensive free health service and he must never, in making a decision under section 3””—" which was an issue in that case— "““disregard that duty””." What is important is that that duty in these terms does in fact remain in the present Bill. The Constitution Committee, which includes distinguished parliamentarians and very distinguished lawyers, has put that question in clear terms to us all. I do not believe, although I have the greatest possible respect for the great range of talent in this House, that any other committee could have put it better, more succinctly or more comprehensively. Yesterday, the right reverend Prelate the Bishop of Bristol referred to this as a ““foundational”” matter. I agree with that, and the sooner it is resolved, the better. The problem with the proposal of the noble Lords, Lord Owen and Lord Hennessy, is that, while I agree entirely with its importance, is the method by which it should be resolved. If, in truth, this is a foundational matter, it is very unusual to leave the consideration of the foundation to the end of the consideration of the structure, and that is what is going to be involved here. My submission to your Lordships is that the sooner the sting and toxicity coming out of this issue is removed from the consideration of the Bill, the better. I have every confidence that a full debate in an ordinary Committee of the Whole House will resolve it at the beginning rather than at the end of the process. However, according to the proposal of the noble Lord, Lord Owen, the rest of the Bill is to be considered without a decision on this point. But that decision is bound to affect all of the rest of the Bill, so consideration of the rest of the Bill is subject to a condition about its foundation, which cannot be effective. Noble Lords do not need to listen to the whole of the debate, although I have listened to a substantial part of it, to know that very important issues need to be debated in order to improve the Bill. Certainly I would like to see it improved to the best possible standard because the health service is the most precious system in our country. I personally am highly devoted to it and have now used it for long enough to have become one of the ageing population which is threatening to be a rather serious burden, although I hope that I will not be too burdensome. The right way for this House to deal with this matter, in accordance with its ordinary methods, is at the proper place in the Bill. Whatever wrongs the Secretary of State has done—people are finding fault with all sorts of different aspects—at least this point arises at the beginning, the foundation, of the Bill. Surely this House should not lose the opportunity of dealing with it in its place, in accordance with the full and comprehensive issue put before us by our own committee. I do not want to say anything about the issue itself at this stage, just simply that it is one of great importance which should be decided at the beginning, not the end, of the process. I hope that we will be able to decide it in Committee. It is always open to come to a conclusion in Committee, although many conclusions are reached on Report. But I would like to see this issue decided at the beginning of the Committee stage because it has the capacity to draw out a lot of the toxicity that is affecting consideration of the Bill. A lot of people have written saying that the whole of the health service is going to be damaged, lost and so on. We need to consider that and see what we can do to deal with it. I think that the Government have indicated in the other place that they would be willing to put this beyond legal doubt. The Committee has given us one way of doing that; namely, to go back to the way it was, in which case the legal doubt is resolved. But there may be reasons for not doing it which the Committee will have to consider, one of which was mentioned by the noble Baroness, Lady Finlay of Llandaff; namely, that it is highly desirable to prevent the National Health Service becoming a political football. I have a sad recollection of a general election in which the ear of a particular patient of the National Health Service was a political football for days. That does no good for any of us. Indeed, it denigrates our health service. I am not saying that this Bill would eliminate that for certain, but the object of this change in the early part of the Bill is to try at least to reduce the risk. Your Lordships will want to consider that, but I suggest that we do so as a matter of priority at the very earliest stage in Committee.