Noble Lords may understand why I got up a little impatiently earlier. I move Amendment 66 in my name and in those of the noble Lord, Lord Patel, and the noble Baroness, Lady Walmsley. Let me start by reiterating my support for this Bill and lack of any objection whatever to including the transfer of NHS responsibilities through it. This amendment brings us back to earlier discussions on the arrangements for devolving NHS responsibilities, which led to a very helpful meeting with the Minister and her colleague the noble Lord, Lord Prior, on 6 July, when Howard Bernstein, the Manchester City Council chief executive, and officials from NHS England also joined us. I thank the Minister for arranging that meeting. We clearly got across our main point of concern—that the Bill had failed to address how it dovetailed with NHS legislation, particularly the Health and Social Care Act 2012. I think that the Minister has accepted our main argument on that point, and I am only sorry that I was unavoidably absent when she moved her amendments to try to deal with that issue late on Monday evening, but I have read Hansard carefully.
Rather than ploughing on through the detail of my amendment, I raise a few points of clarification about the Government’s apparent response to the concerns that my noble friend Lord Hunt and I raised at earlier stages of this Bill. As I understand the Minister from reading Hansard, she is saying that Amendment 28 enables NHS responsibilities to be conferred by order on a combined authority instead of a current public authority or for those functions to be exercised concurrently by an existing authority and a combined authority. The order could also impose specified conditions or limitations on that particular deal. That certainly meets my concern that the Bill seemed to have no regard to the 2012 Act, but it raises some other concerns which I shall come to briefly in a moment.
The Minister went on to say on Monday that the power to specify conditions or limitations in orders on the transfer of responsibilities would also give the Secretary of State power to stop the transfer of regulatory and supervisory functions to the local level. However, she then rejected Amendment 31, which rather confused me as it more neatly excluded those functions altogether from Clause 6. She offers the prospect of coming back to this issue at Third Reading. I do not think that we have dealt properly with the issue of regulatory and supervisory functions going down to the local level. I think the Government are trying to stop that, but I am not sure that, by making it an order-by-order process, that meets the case. I have a few other points. I see the Minister wants to jump up, but let me just finish my argument and then she can probably deal with all of them.
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I do not wish to be churlish, but the Government’s way of dealing with my concerns and those of my noble friend Lord Hunt is pretty clunky. It could mean that each order could have different specifications of conditions and limitations depending on the local negotiations. This could mean over the years the piecemeal unpicking of the Health and Social Care Act 2012 across the country. We could end up moving from a “national” health service under that legislation to a service involving different arrangements in terms of entitlements and the Secretary of State’s duties to different populations. There is a problem for the Government, in that they do not understand fully that this is a “national” health service. Many of the other functions that are being devolved are not an integral part of a national service. I fear that, given where the Government are taking this—accidentally—we will end up with a piecemeal set of arrangements that basically take the “N” out of the NHS. I do not say that the Government are trying to do that deliberately. It is one of the consequences of doing this deal by deal, with no oversight of conditions that cannot be part of these particular local deals.
The Government seem to recognise that there may be a problem because, as the Minister said:
“Amendments 80 and 82 are minor changes … enabling the Secretary of State to amend or modify legislation”.—[Official Report, 13/7/15; col. 439.]
She gave the example of the National Health Service Act 2006. That adds to my concern that this agenda is a fragmentation of the NHS, involving a lot of local deals that make sense to a given locality, but with
many consequences for other parts of the country that may not be part of those local deals. I am not sure that the Government, through the Department of Health, have really thought this through. In a moment I will suggest how they might deal with these issues.
I am not going to plough all the way through my amendments, but what I am concerned about is the collective punitive effect over time of the Government’s “workaround” approach to the concerns that have been expressed while this Bill has been taken through the House. There has to be some overarching provision of the kind that my noble friend made in Amendment 31 —about regulatory provisions not accidentally slipping down into local deals.
I would welcome the Minister’s explanation, which I have never really had, of why she is unwilling, given the nature of the National Health Service, to include in the Bill a clear process for dealing with these issues. I accept that it may be late in the day for the Government to do that in this place, but they should still consider doing so in the other place. If they do not want to go that far, I have an alternative proposition: they should consider an amendment to the Bill which provides that, six months after Royal Assent and after consultation, some form of statutory code or guidance will be produced on how devolution of NHS responsibilities under the Bill will work, and how they will interpret the wide powers they have taken in the Bill to organise that devolution. I fear that if they do not clarify the situation, there will be a great deal of confusion, chaos and misunderstanding in the NHS, which could rebound on the Government over time.
That is my constructive suggestion to deal with a set of circumstances that are bubbling up as a result of the Government trying to do this quickly and without thinking through all the implications of using the Bill to devolve NHS responsibilities. In the mean time, I beg to move the amendment so that we can have a brief discussion on these matters.