Health and Social Care Bill

My Lords, I remain very puzzled by what the noble Baroness, Lady Williams, said. There is no disagreement at all, it seems to me. My original amendment and the amendments of the noble Lords on the Liberal Democrat Benches are entirely about the whole question of what is an appropriate intervention by the Secretary of State. Perhaps the noble Earl is going to accept this amendment and the Liberal Democrats want the glory of having it accepted—who knows? I agree entirely with the analysis of the noble Lord, Lord Marks, that the powers of the Secretary of State have to be sufficient to enable the Secretary of State to discharge his or her accountability to Parliament and to be responsible for the overall performance of the National Health Service. I agree with him that the current intervention powers are too weak in terms of the threshold and I agree that they are set too high. I also agree with his analysis about the relationship between the board and clinical commissioning groups. It is very interesting as this Bill has progressed—somewhat slowly but none the less some progress has been made—that we have seen a number of interventions by the Secretary of State into the affairs of the National Health Service during that time. They have included coming down very hard on primary care trusts that were making people wait longer on the waiting list, although within the 18-week target period in order to save money, and on NHS trusts that, once a patient missed the 18-week target, let them wait many more months. I make no complaint about those interventions. I believe the Secretary of State was entirely justified. One of the questions is, how would that happen under this legislation? When we debated this last week, the noble Earl, Lord Howe, essentially said that provision could be made in the mandate set for the board by the Secretary of State. That in itself risks the mandate becoming prescriptive and potentially another way to micromanage the National Health Service as one thing after another is added on. He was not very keen on my noble friend Lord Warner’s suggestion that the mandate be restricted to, I think, five objectives and five desirable objectives. I suspect that when we see the mandate it is going to be very detailed because the Secretary of State will seek to cover himself so that when blame comes it will fall entirely on the NHS Commissioning Board. It may be that in writing the mandate there are some events or issues that could not be anticipated in advance. However, in the circumstances that I have mentioned, the noble Earl, Lord Howe, could say, ““Well, you have the intervention powers contained in Section 13Z1 on page 23””. As the noble Lords, Lord Owen and Lord Marks, have suggested, the problem is that the intervention has to be based on a failure, "““properly to discharge any of its functions, and the failure is significant””." The intervention is based on the consideration of the Secretary of State. The Secretary of State will be properly advised by his officials and possibly by the Government’s law officers. However, what if the NHS Commissioning Board rejects the Secretary of State’s view? What if clinical commissioning groups which had contained costs took the view that, in the case of non-urgent treatments, it was legitimate to make patients wait a few weeks if they were none the less treated within the overall 18-week target? Looking at the robust evidence given by the chair of the NHS Commissioning Board to the Health Select Committee, which scrutinised his appointment, it is just possible that the NHS Commissioning Board might tell the Secretary of State to back off. I do not think that is right. I am firmly on the side of Mr Lansley, since he is the Secretary of State and firmly answerable to Parliament. In the way that the Bill is currently constructed, I worry that the Secretary of State will be inhibited from necessary interventions. I listened with great interest to the remarks of the noble Lord, Lord Marks. I can see the logic of his amendments. The only point that I would raise is this: is it really necessary to add, "““considers to be in the best interest of the National Health Service””?" I do so in two regards. First, it adds words in a way that is potentially open to challenge and might lead us to the problem of judicial reviews, et cetera, which will certainly arise in the case of the Bill as it is currently drafted. Secondly, in my Amendment 152—which I invite noble Lords to give some consideration to—I have used the kind of wording that has been used ever since the NHS was established. Surely by definition the Secretary of State could only give directions if he thought it was in the best interests of the NHS because a Secretary of State must be bound to act in the best interests of the NHS. Perhaps the noble Lord, Lord Marks, will accept that perhaps my wording is rather more straightforward and less challengeable. Overall, however, I would say to the noble Baroness, Lady Williams, that I do not think that there is any real disagreement of substance. What is clear is that the Secretary of State is, in the end, the boss and accountable to Parliament. He or she must have intervention powers. They should not be qualified.