Health and Social Care Bill

My Lords, this is a most significant area of the Bill, as my noble friend Lady Williams of Crosby has said. This group concerns the regime whereby, in the event of a significant failure, the Secretary of State can intervene in the board’s exercise of its functions. That is in Amendment 153. The board in its turn can intervene in the exercise by a clinical commissioning group of its functions. That is the purpose of Amendments 220ZAA and 220ZAB. I would add Amendment 220ZA, which is not currently in the list of the group, which simply amends the title of the proposed new Section 14Z19. Also in the group is Amendment 277, which removes the restriction on the Secretary of State’s intervening where there has been a significant failure by Monitor to act in relation to a particular case. May I first address the question of the Secretary of State’s intervention in the board’s exercise of its functions? When we debated at some length Clauses 1 and 4 and the proposed new Section 13F, noble Lords were clear that whatever may be the outcome of those discussions and debates on those clauses, this House must ensure that the Secretary of State will have powers and functions that are up to the job of enabling him or her to carry out those overarching duties. Those duties involve him or her in carrying ultimate responsibility and accountability to Parliament and in the courts for the NHS. We should remind ourselves that my noble friend the Minister and my honourable friend Mr Paul Burstow have repeatedly assured Parliament that the Government are determined to make it clear that the Secretary of State will remain responsible and accountable for the NHS in Parliament and at law. In considering how far the proposed intervention powers meet those objectives, two features of the Bill are central. The first is the devolution of the commissioning arrangements to the CCGs, which is, as my noble friend mentioned, at the heart of the Bill. The second is the supervisory role of the board over commissioning. The board is to act on the mandate of the Secretary of State and will implement regulations laid by the Secretary of State and approved by Parliament. That certainly gives the Secretary of State considerable responsibility. However, the Secretary of State cannot exercise that responsibility effectively unless he is able to intervene appropriately when the board does not act in accordance with the best interests of the NHS. Under the arrangements presently proposed, the continuing responsibility of the Secretary of State for the functioning of the board and, hence, for the whole system, is disconcertingly weak. The problem is not that the powers given to the Secretary of State are inadequate, if he is in a position to intervene. They are adequate and admirably drafted. He may give a direction to the board to exercise its functions and say how it should do so. If the board fails to comply, the Secretary of State can take over. The problem lies in the threshold, because the bar for intervention is set far too high and it is only in very limited circumstances that the Secretary of State is to be permitted to intervene by the Bill. He may give a direction to the board only if it is failing or has failed to discharge any of its functions or has failed to do so properly, and the failure is significant. The board could therefore say, if challenged, that it was carrying out its functions properly, even if it was acting entirely contrary to the views of the Secretary of State, as to what the best interests of the NHS required. The reason for that is that failing to exercise its functions properly would almost certainly be interpreted by the courts as acting in a way in which no reasonable board, having the duties of the NHS Commissioning Board to perform, could rationally act. It would not matter to that argument if the board decided to act, or declined to act, in a way that the Secretary of State considered to be entirely contrary to the best interests of the health service. The situation is made much worse by the duty to promote autonomy that has been adjourned for further discussion. Even independently of the autonomy clause, the high threshold for intervention is offensive to the notion that the Secretary of State remains responsible for the health service. There is no accountability in a Secretary of State who is debarred from intervening when his own views can be so comprehensively traversed by a body whose supervision is supposed to be in his charge. At first blush, the requirement that a failure be significant to justify intervention might appear to raise the bar still further. I am, however, satisfied that, provided the word ““significant”” is given its usual interpretation of ““not insignificant”” or ““more than trivial””, that limitation is sensible. It would, though, be helpful to have a Statement from the Minister—in Parliament—saying that the use of the word ““significant”” is intended to eliminate the unimportant or inconsequential rather than to import into the Bill some test of higher seriousness. The same considerations apply to the board’s right to intervene in the clinical commissioning group’s exercise of its functions. The Secretary of State sets the board the mandate, the board is obliged to comply with it, and if a CCG is acting in a way that is inconsistent with the mandate and inconsistent with the strategy the mandate represents, the board must, I suggest, be able to intervene. Yet the limitation, as currently drafted, does not meet that objective. It is far from clear that a departure by a CCG from the objectives set by the Secretary of State for the board, in the mandate, would justify the board in saying that the CCG was not acting properly, given the way in which I believe that term would be interpreted. So the whole structure of accountability is at risk of being found impotent, because there could be a significant failure by a CCG and no means of redress by the board. Our amendment would enable the board to intervene if it considered that the CCG was failing to act in a way the board considered to be in the interests of the health service. I turn finally to Amendment 277, which is concerned with the prohibition in Clause 67(3) on the Secretary of State intervening in Monitor’s operation in relation to a particular case. Monitor’s regulatory functions involve regulation of all NHS foundation trusts, some of which are very substantial. Things can go wrong, as the Mid-Staffs inquiry demonstrates, and they can go wrong with Monitor. Monitor has a plethora of functions that are directed to individual cases, not least the entire licensing procedure for NHS foundation trusts. Each trust must apply for a licence, and it is Monitor that determines the application and then sets the conditions. I appreciate that there is an appeal against refusal or revocation of a licence. However there is no appeal against a grant. In those circumstances it is simply illogical that the Secretary of State has a general power of intervention where there has been a significant failure by Monitor in relation to the exercise of its functions, but that that power cannot be exercised in a particular case because of Clause 67(3). Our amendment would remove that illogical distinction.