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Lord Hunt of Kings Heath: My Lords, I hope I can reassure noble Lords that the power will be used in a sensible and important way, ensuring that ultimately the Secretary of State can discharge his responsibilities to Parliament for the performance of the National Health Service.
The Secretary of State can intervene using this power as set out in subsection (1) only if he is satisfied that an NHS body is not performing one or more of its functions adequately, or that there are significant failings in the way that the body is being run. In addition, the Secretary of State must also be satisfied that it is appropriate for him to intervene.
The clause would permit intervention in cases where there has been a serious one-off incident, or where there has been failure to provide a satisfactory service to patients over a period of time. In the second of those situations it would clearly be inappropriate to use intervention powers at the first sign of merely "inadequate" services being delivered. I can reassure the House that that would not be our intention.
The kind of situations in which the Secretary of State may use that power could include a failure of trust management to address serious malpractice--for instance, carrying out procedures without informed consent; a continuing failure of a trust board to take the necessary action to ensure that the trust was in financial balance; or a continuing failure to provide services to an adequate standard. We envisage that the use of those powers of intervention would, generally speaking, be a last resort when other actions had failed or were deemed inappropriate because of the seriousness of an incident.
When an NHS body was first identified as providing inadequate services we would not ordinarily look to use the intervention power. Other possible actions to improve the performance of failing NHS bodies are already set out in the NHS Plan. They do not require legislation. It could take the form of a recovery plan agreed between the NHS body and the Department of Health; it could include monitoring of the body by the regional office; and it could include more frequent inspections by the Commission for Health Improvement.
Those wider messages and the powers included in this clause have to be seen as part of a much wider package of performance improvement initiatives that we outlined in the NHS Plan. Again, I stress that we are committed to developing within the NHS a system of earned autonomy that removes the burden of bureaucracy and allows greater operational freedom to those parts of the NHS that are performing well. The other side of the coin is the need for us to take action where there are NHS bodies that are not up to the task and are not providing adequate services.
I do not believe that such a change is necessary. The test of whether the body is performing adequately is not intended as a low test. Indeed, I have already outlined the sort of circumstances in which we may use the power and that we envisage such intervention being taken only after other steps have been taken. However, we should not accept inadequate services. It is right that the Secretary of State should be able to intervene where adequate services are not being provided. To suggest otherwise is to accept very low ambitions for the NHS and the services that it delivers.
Amendment No. 17 stipulates that the Secretary of State should make an intervention order only when all other appropriate remedial action has been taken. I have no disagreement whatever with the principle put forward here. As I said, we see the measures in the clause as being taken as a last resort or at the end of a series of other measures, except in the event of an immediate or catastrophic failure when urgent action must be taken.
However, it is important to remember that if an example of performance failure were particularly serious, such as one which posed a real or potential threat to patient safety, and it was clear that other measures would be insufficient, an intervention would be appropriate as it would enable quick and decisive action. I do not believe it would be helpful to impose on the Secretary of State a duty to ensure that he had exhausted all other appropriate action in those circumstances.
Amendment No. 18 relates to making available to Parliament details of the reasons for intervention. It would be unusual to make it a statutory duty to lay copies of an intervention order before both Houses as the order is not astatutory instrument. That is because intervention will by its nature be particular to the individual body rather than general in application, and particular account will need to be taken of local circumstances. Our view is that these orders largely concern operational detail. They are concerned with how an individual NHS body is performing its functions or being run. Although an intervention order may remove or suspend the individuals involved in managing the body, it will not fundamentally alter the body's constitution or remove or alter any of its powers or duties.
In our view, given the nature of the order, it is not then necessary to subject them to the parliamentary procedure. The Select Committee on Delegated Powers and Deregulation agreed that it was appropriate to disapply the negative procedure. I reassure the House that that does not mean that the Government would not seek to be fully open about the reasons for intervention and what was expected of the
I believe that, given that reassurance and the fact that the plan will be in the public domain, there is no need to go down the route set by the noble Earl. I envisage the intervention order being used very sparingly and I hope that I have reassured your Lordships on that point.
Earl Howe: My Lords, the Minister certainly reassured me that the present Government have no intention of using these powers lightly or wantonly. I fully accept that. However, I sought to make the point that once the power is on the statute book, a future government can use it to the full extent that the law permits. I found his answers unsatisfactory in that regard particularly.
My noble friend Lady Noakes was right to say that by any standards we have here a fundamental intervention in the operation of the NHS. She was also right to say that the NHS has typically in the past coped with catastrophic failures that reflect badly on management. There are ways of doing that without resorting to an intervention order. Furthermore, I agree with my noble friend that in the wording of the clause, particularly the word "adequate", we have potentially a low threshold of failure, even if current Ministers do not view the terminology in that way.
Alarmingly, the Minister said that generally speaking the power in the clause would be a last resort and that the Government would not ordinarily look to use the power when other actions are open to the Department of Health. If anything, those words are less strong that those which the Minister deployed in Committee. But even if they are intended to represent an equal measure of reassurance to me, I return to my earlier point: we are talking about putting on to the statute book a draconian power which is capable of being used in a way which runs counter to the intentions of the present Government. I am not in the least comfortable with that.
The Minister said that there was no need to go down the route that I propose. I am certain that on the principle of my proposal he has no objection, other than the principle of Amendment No. 18, in respect of which he believes that there are problems. But as regards Amendment No. 16, if he feels that there is no need to go down my proposed route--clearly, he has no fundamental objection to it--I should like to take the opinion of the House.
Resolved in the negative, and amendment disagreed to accordingly.