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Baroness Noakes: May I respectfully suggest that the Minister has demonstrated a sense of schizophrenia about this issue? In one sense he is suggesting that the powers will be used only in very few cases, yet the powers are drawn very widely and would enable the Secretary of State to intervene in a large number of cases. If, as the Minister has done, we link it to earned autonomy, it is potentially 25 per cent of cases; and, if we go into the middle band, it is potentially up to 75 per cent.
I think that the Minister will accept that the powers are drawn very widely. I find it difficult to understand what he is saying. He said that it is only for a very few cases. We have asked him to explain to us what kinds of case but they seem to exist in his imagination; they are not shared on these Benches. We have severe doubts about the nature of the power being taken, although not about the necessity for intervention in extreme cases. I find it difficult to sign up to the fact that the powers are necessary to deal with the generality of managing the health service from the perspective of the Secretary of State.
Lord Hunt of Kings Heath: Perhaps I may make two points in response. My first point concerns traffic lights. It is my hope that we shall have very few red light organisations. The whole emphasis of the earned autonomy is on recognising those that are successful and helping those who are less successful to improve their overall standards.
None the less, I believe that there may be occasions when, in a very few organisations, there is a problem which, despite all efforts, the trust is either incapable of solving or refuses to put right and when some intervention will be necessary. It becomes very much a last resort in this whole context of performance management and earned autonomy.
Ultimately, the Secretary of State is accountable to Parliament for the NHS. It is right that he should have these intervention powers. Equally, I have tried to assure the Committee that these powers will be used very sparingly indeed.
Baroness Northover: This debate has illustrated just how important are the amendments that I have tabled. It is a running theme throughout the Bill that the Secretary of State is seeking to take wide powers. It does not seem to be a conflict, therefore, with what the Secretary of State may be seeking to do to have a back-up sitting alongside the Secretary of State, to have other organisations involved in these decisions, and to have a report-back mechanism built in. So I am afraid
that I am not reassured by what the Minister has said. It sounds as if other Members on these Benches are not reassured either.
Earl Howe: Before the noble Baroness decides what to do with her amendment, perhaps I may respond briefly to what the Minister said. As always, I am grateful for the full way in which he addressed the points raised. However, I was disappointed by his response. His language was couched in many cases in reassuring terms, but a great many of my worries remain.
The Minister said that these powers would be treated only as a last resort measure. That assurance was given in another place. But the Bill does not state that. Legally, the Secretary of State would have scope to take action at any time he liked. I do not think that the drafting is tight enough.
Equally, the Minister admitted that these powers could be used without warning--something that again worries me. I accept that there are cases where time can be of the essence, but I believe that we should think twice, if not several times, before drafting legislation to cater specifically for the extreme circumstance. In the past, the NHS has always managed to cope with genuine one-offs without special legislation. My strong preference, if we need these powers at all, is to draft the clause with much more routine circumstances in mind.
The Minister is right to speak of the general tension between control from the centre and local autonomy. I do not dispute that at all. It has been a feature of the NHS, as he rightly said, since it began. But whenever we see before us, as we do now, a new and very wide power, as my noble friend said, to arrogate yet further control to Ministers, that power must be justified fully. We are talking about intervening in the day-to-day affairs of health service bodies.
The Minister spoke of "earned autonomy", a concept that we discussed earlier in Committee. As I remarked then, it is a somewhat Orwellian phrase. It means autonomy earned in return for achieving objectives that are set by the Secretary of State. If one were not a cynic, that might appear perfectly satisfactory. But the targets and objectives set by the Secretary of State are not, as we all know, always such as the man in the street would regard as beneficial to patients. I hesitate to raise the matter again, but the waiting list initiative is one such example. Politically driven objectives make me feel distinctly uncomfortable in this context.
I think I shall want to return to this matter at a later stage of the Bill, if indeed there is a later stage. In the meantime, in the interests of allowing the proceedings to continue, I shall say no more.
Baroness Northover: At this stage I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 147 to 151 not moved.]
Baroness Northover moved Amendment No. 152:
- Page 15, line 35, at end insert--
The noble Baroness said: This amendment adds care trusts to the bodies appropriately covered by any new arrangement that might replace CHCs. The thinking behind the amendment was to try to produce closer links between health and social services, a subject that is addressed later in the Bill.
However, yesterday I heard the Minister explain that care trusts would be included in this kind of context. Given the importance of the inclusion of care trusts, perhaps he is willing to comment. I beg to move.
Lord Hunt of Kings Heath: As the noble Baroness suggested, I said yesterday--and I say again tonight--that it is unnecessary to add care trusts to the list of bodies to which intervention orders can be applied. They would be constituted legally either as a primary care trust or as an NHS trust, both of which are already listed in the clause as drafted. Perhaps I may give the Committee an example. If we are talking about a primary care trust that has delegated some local authority responsibilities, it would be a care trust but it would be formally known and recorded in statutory provisions as a primary care trust. However, in similar circumstances, if we are talking about a mental health acute trust that has taken on responsibilities delegated by a local authority, it would be a care trust but in statute it would remain an NHS trust. I certainly agree with the principle behind the amendment, but I believe that its purpose is already covered.
Baroness Northover: I am reassured by the position being made explicit. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 153 and 154 not moved.]
Earl Howe moved Amendment No. 155:
The noble Earl said: I shall deal briefly with two amendments that relate to various consequential aspects of an intervention order. In moving this amendment, I shall speak also to Amendment No. 156. The first concern I have is that there should be a proper process for selecting people to take over boards following an intervention order. Ideally, the full process laid down by Nolan or Neill would be involved. However, with time pressing, I am the first to recognise that that course is impractical. In its place, I have suggested something that I hope is quite flexible; namely, that the process used for making the
The Minister will need no explanation from me as to why I have chosen that particular route. I do not need to go into too much detail if I simply mention the recent report by the Commissioner for Public Appointments, in which some pretty critical comments were made about the political nature of some of the appointments made by the present Government.
Perhaps I may ask the Minister a specific question about the sub-contracting provisions. Subsection (5) empowers the Secretary of State to force the body to sub-contract some or all of its functions. The Explanatory Notes say rather baldly that expressions of interest will be selected from an approved list, but there is no mention of how such an "approved list" will be drawn up. It would be helpful to have some detail in that respect.
In subsection (5), we have a provision that specifies that the health service body itself has to foot the Bill for any sub-contracting. That is not a wholly unreasonable requirement. However, Amendment No. 156 seeks to ensure that the intervention order is not used to specify a price or any other conditions that are unaffordable to the body concerned. In the sections of the 1977 Act, and other Acts that are cited here, the basic financial duty is to break even. With this amendment, the Secretary of State could not force the body to incur a deficit. I beg to move.
"(e) Care Trusts"
11 p.m.
Page 16, line 22, at end insert--
"( ) The Secretary of State shall agree with the Commissioner for Public Appointments the process whereby individuals are selected prior to being specified in or determined in accordance with the order to replace those removed from office under subsections (2) or (3) above."
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