I do not know of any such situation where he should not, but obviously each deal will be different. I cannot speak to a theoretical situation, but no one is suggesting that the Secretary
of State loses the powers, particularly in respect of his ultimate accountability to Parliament for the provision of NHS services.
Most of the limitations and conditions that the noble Lord, Lord Warner, outlines could be specified in an order using the provisions, if doing so were considered appropriate in the context of a bespoke devolution deal. For example, we could enable a conferral of health powers on a combined authority to be accompanied by a condition that the combined authority must also meet the current statutory duties held variously by the Secretary of State for Health, NHS England and clinical commissioning groups.
Further safeguards are already provided by other provisions in the Bill. Before making an order to transfer functions, the Secretary of State must consider that such a transfer will improve the exercise of statutory functions. The Secretary of State is also bound by various duties in relation to the health service when exercising his functions. These are set out in the NHS Act 2006, and concern duties such as the duty to act with a view to securing continuous improvement in the quality of services and to have regard to the need to reduce health inequalities. Such duties would be relevant here and, in making an order transferring health service functions, he would be obliged to discharge them.
The order implementing a particular devolution deal must be debated and approved by both Houses of Parliament, and Parliament’s consideration will be supported by the laying in Parliament of a report setting out the detail of the deal, a new requirement under the provisions in Amendment 33, which the House passed on Monday. Those reports will set out and explain the full deal—that is, the wider context in which any order is being made. Hence, the report will set out and describe any memorandum of understanding that councils in the area, the combined authority and the various NHS bodies involved have agreed. That memorandum of understanding will describe and make clear the nature of the devolution agreement, including the degree of permanence or how long it is expected to last. We can see this in the MoU which Greater Manchester has entered into.
Amendment 66 would also require a combined authority to publish an annual report on its deal in relation to health. As we have noted previously, there will be a process for evaluating the progress on each deal agreed with each area as part of the deal. For example, the Greater Manchester deal has an extensive programme of evaluation, with evaluations being public documents available to all with an interest in the area and the progress that it is making. In this context, it is not appropriate to make a requirement about the reporting or evaluation of some particular aspect of a deal—indeed, an aspect that may not be in all the deals which are agreed.
We do not feel there is a need to restrict the ability of the Secretary of State to intervene as set out in Amendment 66. The Secretary of State is already under a duty when exercising functions in relation to the health service to have regard to, always subject to the interests of the health service, the autonomy of the bodies exercising health functions.