89.The White Paper proposes a number of additional powers that would be conferred on the Secretary of State for Health and Social Care. These fall into three main areas which we consider specifically in turn later in this chapter:
90.In general, the White Paper does not set out in detail the range and restrictions that will accompany these powers and as a result, a number of our witnesses were concerned about the effect they could have on the day to day operational independence of the NHS.
91.The King’s Fund argued that the direction of travel from primary to secondary legislation at the same time as powers were being moved from independent arm’s length bodies to the Secretary of State required assurances that “an appropriate balance” would be struck between parliamentary oversight and reasonable flexibility for the health service. Both the King’s Fund and the Nuffield Trust argued that any additional powers required a commensurate level of parliamentary scrutiny and accountability to be put in place. The NHS Confederation was of a similar view. It advised “caution” over proposals to increase the Secretary of State’s powers of direction and advised that Ministers should “resist the temptation to centralise it further”.
92.A number of witnesses also believed that the new powers could result in the politicisation of decision-making in relation to the NHS. The Nuffield Trust said:
Politicians face electoral incentives which are not aligned to the optimal running of a health service and previous Secretaries of State for Health from both parties have in the past revised the allocation formula for NHS funds in a political context.
93.The Health Foundation described the proposal to bring the NHS under closer ministerial control as “concerning” and warranted closer scrutiny. It warned that the proposals appeared to be “politically driven” and without a “clear rationale”. To counter this, the Health Foundation asserted that the Government needed to:
Clearly articulate the rationale and perceived benefits of the proposed changes, how additional powers will be used, and outline the checks and balances that will be in place to ensure that they are used as intended”.
94.In written evidence, the BMA stated that clear safeguards and limits would be necessary for all of the additional powers “to avoid increased political influence in NHS decision making and undermining long-term planning”. NHS Providers acknowledged that the White Paper offered reassurances that the Secretary of State “will not be involved in day-to-day operations”. However, it warned that the clinical and operational independence of the NHS could be undermined by the “worrying trend within the proposals of the legislation allowing political overreach”.
95.In response to these concerns, the Secretary of State confirmed to us that “if and when a power of direction is exercised, it should be done transparently and subject to a public interest test”. The Secretary of State also confirmed that the clinical and operational independence of the NHS would be set out in legislation:
That will be absolutely integral to the framing of the power of direction clauses in the Bill. The wording is slightly different from that which you have used a couple of times. It is clinical and day-to- day operational independence, and that will be enshrined in the approach that we take, which will be set out in primary legislation.
96.The Secretary of State for Health and Social Care is responsible to Parliament and the taxpayer for health and social care. It is therefore reasonable that the Secretary of State has the appropriate levers to ensure that Government policy is delivered. However, the White Paper does not give adequate detail on how the new powers proposed for the Secretary of State will be used. Nor does it set out the necessary safeguards to ensure that the powers do not open the door to the politicisation of the NHS.
97.We recommend that the Bill includes provisions that set out in detail, both the range and restrictions that will apply to each of the additional powers proposed including provisions for transparency around ministerial interventions and the operation of the public interest test.
98.The first proposal is for the Secretary of State to be granted powers to make structured interventions in relation to NHS England to set clear direction, support system accountability and agility, and also enable the Government to support NHS England to align its work effectively with wider priorities for health and social care. The White Paper states that these powers of intervention will be granted while maintaining the “clinical and day to day operational independence of the NHS”. As a reassurance, it continues that:
These powers will not allow the Secretary of State to direct local NHS organisations directly nor will they allow the Secretary of State to intervene in individual clinical decisions.
99.Despite that reassurance, contributors to our inquiry remained concerned by this power. The Patients Association thought that the proposal was defined “quite vaguely” and as a result, could amount to “a broad right for the Secretary of State override NHS England’s decision-making, including for political reasons”. The NHS Confederation argued that the intention to give the Secretary of State more control over the direction of NHS England and NHS Improvement risked contradicting the ambition of the White Paper to facilitate integration and local leadership”.
100.If this power is to be conferred on the Secretary of State, our witnesses believed that additional safeguards needed to be put in place. For example, the Nuffield Trust argued that there should be a requirement to publish any direction or intervention and that any such direction laid before Parliament in the form of a draft Statutory Instrument so that Parliament could vote on its approval.
101.In supplementary written evidence, NHS Providers said that the Bill needed to define this power in terms of:
Furthermore, NHS Providers believed that the Department should consult with the sector before these provisions are approved.
102.We recommend that the Bill sets out in detail, the scope and areas of decision-making that will apply to this power. We further recommend that the Bill places a duty on the Secretary of State to publish any direction made by his office, including responses by the affected body, and that such powers are implemented in accordance with a public interest test.
103.The second power related to reconfigurations. At present, the Secretary of State is only able to intervene in a reconfiguration of services after receiving a local authority referral. Once received, the Secretary of State may commission the Independent Reconfiguration Panel to provide recommendations. After that, a final decision will be made. The White Paper proposes that the Secretary of State is given a power to intervene “at any point” in the reconfiguration process in relation to a Trust.
104.The extension of the Secretary of State’s power to intervene was highlighted by a number of organisations that submitted written evidence to our inquiry. The Royal College of General Practitioners said that it had “significant concerns” in relation to the proposed power, as the Royal College saw the potential for the powers to be “triggered in response to political pressures unrelated to the overarching needs of patients, the greater good for local health and care services, or contrary professional advice”. As a result it believed that detail was required on what independent advice would sought and considered, alongside strong safeguards to insure that “interventions in reconfigurations are for the greater good for patients and the service”. The Patients Association also argued in favour of the introduction of “well defined restrictions” on when it could be used, including a specific bar on the power being used to “overturn decisions which enjoy the strong, demonstrable support of affected and potentially affected patients”.
105.The British Medical Association captured the views of many organisations saying that:
Increased powers to intervene in local service reconfigurations, whilst enabling reorganisations to occur earlier, could also leave the Secretary of State more vulnerable to pressure from local politicians to intervene in planned service reconfigurations. We would want to see clear safeguards and limits on the use of these powers included in any legislation.
In a similar vein, the Royal College of Nursing believed that the proposal had the potential to “undermine local decision-making processes” and was “at odds with the direction of travel of the wider reforms” towards collaboration of local decision makers for the benefit of the local population.
106.The King’s Fund stated that reconfiguration decisions “should not be politicised” while the Nuffield Trust highlighted the risk that the power had the potential to create political incentives for the Secretary of State and for MPs that do not align with the best interests of people’s health.
107.The King’s Fund acknowledged that while there may be exceptional cases that would require “escalation to a national level”, decisions on such cases “should continue to be informed by the existing Independent Review Panel or a new independent panel.” However, as the Nuffield Trust pointed out, the White Paper did not provide detail on any successor organisation to replace the Independent Reconfiguration Panel (IRP). In the absence of that, the Nuffield Trust believed that published criteria for intervention would be necessary so that any Ministerial intervention could be scrutinized effectively.
108.When he came before us, Sir Simon Stevens explained that the principle of intervention had already been established and that “ultimately the Secretary of State gets to make the decision” in relation to reconfigurations. However, he believed that if the Secretary of State was to intervene earlier in the process that transparency would be important. He added that the use of any such powers of direction should be set out in writing and published at the time, “so that everybody can see what is going on”. Furthermore, he believed that it would be subject to a public interest test so the use of the power of direction would be “justiciable”. Sir Simon also believed that Ministers would benefit from having expert clinical advice from “outwith the local area” in the form of the IRP or a successor body and told us that the IRP had “performed an important role in that respect in the past”.
109.NHS Providers told us that the following detail was required in relation to this power:
110.The Secretary of State already has the power to intervene in reconfigurations and therefore the proposal is an extension of that power in relation to the timing of an intervention. However, the White Paper is not clear on the criteria for intervention, nor is it clear on the role or replacement of the Independent Review Panel. This lack of clarity needs to be addressed if there is to be confidence in the process of Ministerial intervention in reconfigurations.
111.We recommend that provisions be included in the Bill that set out the criteria under which the Secretary of State may intervene in reconfigurations. We further recommend that a duty be placed on the Secretary of State to lay before Parliament all information and advice in relation to an intervention in a reconfiguration.
112.The third power proposed for the Secretary of State is the ability to transfer functions to and from specified Arm’s Length Bodies, and, where it is deemed necessary to, the ability to abolish an Arm’s Length Body (ALB).
113.NHS Providers argued that this new power represented “a further significant centralisation of power and potential loss of independence for the NHS from political considerations”. The Royal College of Physicians welcomed the Department’s assurance that it would undertake a consultation on any proposals for transfer of functions between arms-length bodies. However, it argued that in doing so, the Department must “meaningfully” engage with stakeholders, including the affected ALB and that their views on any proposed transfer of functions must be heard.
114.The King’s Fund did not support this additional power without the need for primary legislation. It argued that it was “hard to justify giving the Secretary of State powers that are not currently needed just in case they may be in the future” as the new powers could “erode the autonomy of arm’s length bodies”. If such powers are to be granted, the King’s Fund believed that “arrangements for review and accountability after use of the powers [and] arrangements for consultation before their use” should be included on the face of the Bill. The Nuffield Trust also put forward the view that the power would “enable a future government to carry out reorganisation on a scale usually done in the NHS through primary legislation”. It believed that if such changes were to be made by secondary legislation it should be made under the affirmative procedure to enable scrutiny and debate by MPs.
115.NHS Providers also recognised the “logic” of the Secretary of State having the power to move responsibilities between Arm’s Length Bodies by secondary legislation. However, it believed that it would be “inappropriate” for those powers to be used either to abolish the newly merged NHS England or the Care Quality Commission, or to “neuter” those bodies by transferring the majority of their powers to other bodies.
116.The additional powers proposed for the Secretary of State have the potential to provide a more agile response to the changing health and care landscape. However, that power requires a commensurate level of Ministerial accountability and Parliamentary scrutiny. We believe that the Bill should set out in detail the extent of this power and the restrictions on its use - including bodies that would be outwith the scope of the power—so that it does not become an unfettered power to chop and change the ability of arms’ length bodies to carry out their important roles.
117.We recommend that the Bill includes schedules setting out the use and restrictions of the power to transfer responsibilities of Arm’s Length Bodies -including a list of bodies outwith the scope of the power. We further recommend that the affirmative procedure for secondary legislation is used in the transfer of functions and responsibilities of Arm’s Length Bodies to ensure that Parliament has the ability to approve or reject such changes.
145 King’s Fund ()
146 King’s Fund ()
147 NHS Confederation ()
148 Nuffield Trust ()
149 Health Foundation ()
150 BMA ()
151 NHS Providers ()
154 , para 3.18
155 , para 5.68
156 , para 5.71
157 The Patients Association ()
158 NHS Confederation ()
159 Nuffield Trust ()
160 NHS Providers ()
161 , para 5.83
162 The Royal College of General Practitioners ()
163 The Royal College of General Practitioners ()
164 The Patients Association ()
165 BMA ()
166 Royal College of Nursing ()
167 Nuffield Trust ()
168 Nuffield Trust ()
171 NHS Providers ()
172 , Annex A
173 NHS Providers ()
174 The Royal College of Physicians ()
175 King’s Fund ()
176 Nuffield Trust ()
177 NHS Providers ()