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Clause 2
Mr. Barron: I beg to move amendment No. 1, in page 1, line 6, leave out 'ceases to exist' and insert
- 'is dissolved or abolished by the Secretary of State'.
- 'is dissolved or abolished by the Secretary of State'.
The nub of the problem is that the phrase "ceases to exist" is vague and open to misinterpretation. We are concerned that the phrase has been placed in the Bill to
cover eventualities of which the House would take a dim view were they to happen. We wish to be assured about one matter in particular. If a trust could go bankrupt,or into receivership, without or before action having been taken by the Secretary of State, the House should be told about that now. If the phrase "ceases to exist" means anything other than the dissolution or the abolition of the organisations covered by the Bill, the House should be told now.
We recognise that the original National Health Service and Community Care Act 1990, to which the Bill adds, made it appear unlikely that a health service body could cease to exist without specific action by the Secretary of State for Health. We are concerned that the organisations covered by the Bill are being treated to different phraseology from that in the originating Act. Dissolution and abolition by the Secretary of State are the ways in which trusts and health bodies cease to exist. The Bill appears to open the door to other ways in which those bodies may come to an end. The clear implication of the wording is that the health service bodies covered by the Bill may come to some sort of sticky end without the Secretary of State's approval, and that such events may not be clearly within his control, as they are under the current Act.
It is an implicit admission by Ministers that they may well lose control of private sector involvement in the health service. Profit-dominated organisations may hold sway over our health care and a private contractor's bottom line may determine the continued provision of certain local health services. If that is not the case, the Minister has plenty of opportunity tonight to give us the correct position.
I have taken legal opinions from various sources on the phrase "ceases to exist", and they have given contradictory views on the interpretation of that phrase. The Minister will recall that my colleagues and I warned him in Committee that the phrase might open the floodgates to legal challenges should the Bill's provisions ever be used. It seems that the differing legal opinions that I have obtained may reinforce that warning.
In Committee, the Minister argued that the phrase "ceases to exist" was an umbrella term, but the umbrella term already exists in law--in part IV of schedule 2 of the National Health Service and Community Care Act. That Act defines the Secretary of State's powers as being exercisable, if considered appropriate,
Why, then, has the second term come into being? Perhaps the Minister would like to argue that his phrase puts in plain English the occasions on which the powers granted to the Secretary of State under the Bill may be exercised, but it is surely an extremely unusual definition of plain English that confuses, rather than clarifies, the position.
Amendments Nos. 1 and 2 make the position clear. They insert in the Bill the concept that trusts and other bodies can come to an end only after the Secretary of State for Health has exercised a specified, positive
powers. Our amendments suggest that "dissolved or abolished" is the term that effectively covers the exercise of those powers. That is real plain English. Both terms are well defined in the legislation and neither is open to misinterpretation by the courts.
There can be no reason to object to the amendments unless the phrase "ceases to exist" is in the Bill for some purpose other than plain English. Will the Minister assist the House by placing it on record that the Bill covers only the following eventualities: first, that a national health service trust is dissolved by the Secretary of State for Health; secondly, that a health authority or a special health authority is dissolved by the Secretary of State? If there are any other ways in which the Bill's provisions can be activated, the House must be told, and the Minister has the opportunity to do so in this debate. He must take this opportunity to assure the House that the continued day-to-day existence of national health service organisations lies with the Secretary of State and the powers invested in him through Parliament, the electorate and the British people.
If the Bill transfers risks from the private sector to the public, rather than the other way round, it already breaks the fundamental principle of the PFI. It already guarantees that the private sector will have an apparently unfettered line of credit from the public purse. Now, there is a further threat to the provision of health care and to the continued existence of the national health service, and it is no slight matter that that uncertainty is intended to be written into law.
The national health service does not need the uncertainty caused by the Bill's existing wording. The amendment helps to re-establish the principles of continuity in health service provision that we all wish to see. Sadly, continuity has not been a major feature of the Government's attitude to health care. The Secretary of State has not been backward in exercising his powers to dissolve, merge and establish trusts and, to some extent, health authorities.
There are frequent revisions to originating capital debt--given levels of interest-bearing loans and public dividend capital--as well as changes to external financing limits and various guarantees from the Secretary of State. Most of that process is designed to prop up the internal market and most of it simply adds resources to the bureaucracy at the expense of front-line patient services. Unless the Bill is amended in the way that we suggest--or by some similar wording, perhaps at a later stage in another place--that tangle of financial directives, limits and guarantees will be balanced all the more delicately against a crash.
The private sector, not the Secretary of State, will have the upper hand in determining whether a health service body crashes or survives. The Secretary of State will be giving away his ability to act positively, by abolition or dissolution, and will be left with no other duty than to pay off the debts and pick up the pieces.
Mr. Horam:
I agree with the hon. Member for Rother Valley (Mr. Barron) on this occasion. I do not think that there is any difference between the two sides about the matter and I can give him the assurance that he seeks.
All NHS bodies covered by the Bill are creatures of statute: they can be established and can cease to exist only by statutory procedure. The existing NHS Acts listed in the notes on clauses to the Bill provide the means by which those bodies can cease to exist. There is no other way, short of an Act of Parliament--which would come before the House--that they can do that.
The hon. Gentleman asked whether an NHS trust could go into receivership. That cannot happen--as a statutory body, insolvency legislation does not apply to an NHS trust. It can cease to exist only by the statutory procedure that involves the House. Therefore, I give the hon. Gentleman the assurance that he seeks: there is no other way in which such bodies can cease to exist, and we do not seek to enlarge that process.
I assure him that we mean nothing sinister by using that phraseology. It is a matter of semantics and of using what we believe to be plain English. If the hon. Gentleman's measures were adopted, wherever the phrase "cease to exist" appeared in the Bill, it would be replaced with "dissolved", "abolished" or "revoke the establishment order of". That is quite a mouthful. We are on common ground in talking about simple, straightforward terms that cannot be misinterpreted in law. I repeat that they are statutory bodies that can cease to exist, only by statutory procedure.
Mr. Barron:
It is a great pity that the Minister did not provide that explanation when we discussed the amendment in Committee. He did not explain his position as succinctly as that then. I am sure that the House will be reassured by his comments. We will not argue over the Dispatch Box about what constitutes plain English. The Opposition and the people of this country--who dearly love the national health service--want to be clear that major decisions about local health services will be taken by the Secretary of State for Health and not in a banker's office or anywhere else in the City. On that basis, I beg to ask leave to withdraw the amendment.
"in the interests of the health service."
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