Previous Section Back to Table of Contents Lords Hansard Home Page

As a consultant, I would regularly do an out-patients' clinic at Basildon hospital on Mondays. If I was also on call, as I sometimes was, I could be told that there was a patient in the emergency department who needed urgent treatment. That would ruin my out-patients' clinic because I would have to go to theatre and sort out that patient. Our last assessment showed that 64 per cent of the general surgeons in Great Britain and Ireland have a responsibility to be on call while they are doing elective work. If you have that degree of commitment to doing two things, you cannot provide the best possible care for your patients. If NHS consultants could structure their work so that it was possible to work in a centre which was perhaps in the hospital-there are a few hospitals, including one in Nottingham, with elective centres within the hospital-or perhaps outside, they would be able to take their registrar and SHO to the independent sector and they would be able learn how to carry out the surgery.

Baroness Finlay of Llandaff: Perhaps I may ask for clarification from the noble Lord. I am not sure whether he is advocating that the duty in the government amendment should or should not be on every provider, whichever sector it is in. I tried to make it clear that I felt that the duty to provide education should be on everyone who provides patient services. I was hoping that the Minister would clarify that that was what was in the Government's mind, so that history-what had happened before-could not be replicated.

Lord Ribeiro: I accept that point, although it might be difficult to implement when you consider the third sector and the voluntary sector, which may not be in a position to undertake education and training. That is a point to bear in mind.

Baroness Finlay of Llandaff: Forgive me but, as someone who works hugely in the voluntary sector and is a patron of many of the healthcare providers, perhaps I may point out that they carry out a great deal of education. An example is Marie Curie running NVQ courses for care assistants across the whole country. They are trying to drive up the standard of care given by people who are absolutely not at the medical end but whose care is critical to the quality of service that patients receive.

Lord Ribeiro: The noble Baroness makes her case but there is a wide spectrum of medical provision, and the question is whether this could be applied to every

25 Oct 2011 : Column 697

single provider. I am not clear about that but perhaps the Minister will be able to address it.

Returning to the question of training, I believe that through the Bill there is an opportunity, perhaps when the contracts for some of the independent sector treatment centres are up for renewal, to give some serious thought to whether these centres could provide the extra capacity that the NHS desperately needs if it is to go forward with the functional separation of emergency and elective care. I am of course talking about surgery and I recognise that that is a special case. None the less, we come from a history of one type of surgical provision to the situation in this Bill. If we are talking about quality as the indicator of the outcomes that we are looking for, it may well be possible to achieve this by utilising the ISTCs for NHS consultants. I shall give way if the noble Lord wishes to speak.

Lord Winston: I had no intention of interrupting the noble Lord. I merely thought that he was concluding his remarks and I was going to follow.

Lord Ribeiro: I take the distinct hint that it is time to conclude my remarks. I merely wish to say that we have an amendment in the Government's name. It may well have been prompted by noble Lords introducing their own amendment, but the fact is that it is now there in the Bill.

Lord Winston: My Lords, I was interested to hear that the noble Lord, Lord Ribeiro, thought that the Chamber was full of doctors. I suspect that if we were discussing a legal matter, it would be full of lawyers, or if it was a matter relating to the City, it would be full of industrialists and so on. It depends on the nature of the Bill. It is very good that the Chamber is currently full of doctors because, like the noble Lord, Lord Ribeiro, we can give special credibility to the discussions and amendments that we are trying to tease out. It is a pity that there are not more members of the nursing profession in the Chamber, as well as others who are involved with healthcare and its wider applications.

Noble Lords: Hear, hear!

5.45 pm

Lord Winston: Perhaps I may be permitted to tell a very minor story. In the 1960s, I was in an NHS teaching hospital out in the sticks of Essex. It was certainly not a university hospital. I was a junior registrar in training and I had been supervised pretty carefully by a remarkable surgical colleague in his sixties, Mr Sandy Crawford, who was my consultant. One night, I rang him up at about two o'clock in the morning. It was a very cold night and it was snowing. I said, "I think this woman needs an emergency caesarean section". At the other end of the phone came the reply, "Eh, Robert, do you think you'd like to do it?". I said, "Well, I've not done a caesarean section without supervision before". He said, "Why don't I just come in and sit in the surgeon's changing room while you're doing the operation. You carry on and I'll drive in". That is what he did. When we had done the operation, which went perfectly smoothly, and delivered the baby, at about four in the morning he poked his head round the door of the theatre and

25 Oct 2011 : Column 698

asked, "Robert, is everything all right?". I said that it was and he said, "Do you think I could go home now?".I told him that he could. The following morning I told him that I thought it was very good of him to have come in to supervise me in that way. He said, "Training, which I think is important, is part of my responsibility as a member of the National Health Service".

I think that here we are talking about the ethos of the Bill, as was the case with the previous amendment. I had some problems with that amendment because I felt that the Minister had demolished some of the arguments very well. However, here the issue is different. The noble Lords, Lord Walton and Lord Patel, have made very powerful points about absolutely embedding training in the Bill. That is of increasing concern, as the health service may become more fragmented and any willing provider may end up doing surgical procedures such as the ones on which I learnt. I am sure that the noble Lord, Lord Ribeiro, will agree. Doing a routine hernia, for example, within an academic environment was of great advantage to me, as I was able to learn how to operate and handle tissues in a general way for other procedures. One problem is that, because it is more efficient, willing providers may end up streamlining those sorts of procedures outside an academic environment, and that training experience will be lost.

I have worked in America, Belgium, Australia and one or two other countries. I spent a year in Belgium. I can tell your Lordships that the training, and commitment to training, in some of those other countries is quite different. We recognise that we have something rather special and unique in the academic environment in this country. In fact, it is not just two jobs that we do as consultants; in my view, it is four jobs. They include delivering the best possible clinical care that we can, but there is also the question of doing research in the academic environment, which is quite different. I know that the Minister agrees that we need more clinical research to improve the translational element which is so critical in our National Health Service, but there are two other areas which are different in many ways. One is teaching, which is different from training. Training is the ability, for example, to take a surgeon through a procedure and learn not to interfere when he or she might be making a minor error which will not damage the patient in any way or jeopardise the patient's care. In my view, that requires a different kind of judgment compared with training someone in the scientific basis of a procedure or the physiology of the patient undergoing the pathological condition.

At the heart of this is an issue which was briefly touched on by my noble friend Lord Turnberg. One concern is clearly how we appoint people to the health service-particularly nurses and doctors. If we have that ethos, which is stated clearly on the front of the Bill and very solidly within the Bill, we must have in mind that in appointing new people to the health service we must consider not merely their ability to do the job well but how they communicate skills. It is widely felt by the public that sometimes many of those aspects of communication are not well served, both in teaching and in communicating with patients. I hope that the Minister will agree that there is a very strong case for considering the points that have been raised by those in whose names these amendments stand.

25 Oct 2011 : Column 699

Lord Mawhinney: My Lords, it is hard to think of any group of people in this country who have had the opportunity to listen to six such distinguished medics talking about what is in the best interests of patients and the common good. It has been a privilege to listen to them all. I am conscious that I am not remotely on the same level as they are, although in a previous life I spent three years teaching medical students at the University of Iowa, 19 years teaching medical students at the Royal Free Hospital School of Medicine, and did a bit of radiography student teaching on the side. So I have some sense of the importance of the issue that we are discussing. I have a personal sense of its importance because, since I stopped teaching, at least two of those who I taught have subsequently offered me healthcare.

I am pleased that the Government have recognised the importance of education and training, and have tabled their own amendment. If there was any doubt about it, the six speeches that we have had thus far would have removed it. We spent some time in the debate on the previous amendment talking about the primacy of patient care. It does not make a lot of sense to talk about the primacy of patient care unless you have an education and training system that gives substance across the many activities that constitute our health service. Education and training are the sustainers of the importance of the primary care ethos.

My noble friend is in a slightly difficult position. If I understand the circumstances correctly, there will be more difficulties coming on education and training. The Government set out to produce an almost comprehensive re-evaluation of the health service. That was always a big ask. Here we are on day 1, and we have already discovered that that big ask is probably not going to be delivered in quite the way to which the Government aspired. I hope that my noble friend will not take the view that we will agree his amendment unadorned and wait for the next Bill that might come along. It is important that there should be some more substance to the Government's amendment than that which presently exists; welcome though that is.

My noble friend has the privilege of having not only the Department of Health to advise him, but, as we have heard, international experts in this House, who I am sure will also be willing to give their expertise and experience to him to help draft what might also be helpful in a government amendment.

I finish with two very practical points. First, I absolutely agree with the noble Lord, Lord Winston, about the importance of communication. It is great that the medical profession know what to do to the best of their ability, but if they cannot convey that to the patient, that in itself constitutes a problem. I hope that my noble friend will think about that. The second point is something that I have raised in this House previously. I cannot be the only one who is concerned at the number of newspapers stories about patients going to see their GPs, to be told "You've got the flu", or "You've got indigestion", and within days they are dead because they had cancer, and nobody even identified it. That is a very good example of why training and education is so crucial. I give the Government high marks for their amendment, but I hope that my noble friend will be able to assure us that he can go a bit further.

25 Oct 2011 : Column 700

Lord Davies of Stamford: My Lords, I think I am the first person to speak in this section of our proceedings this afternoon who is not either a doctor or a specialist in some branch of science very close to medicine-in the case of the noble Lord, Lord Mawhinney, biochemistry. An enormous strength of this House is that we can bring to bear such expertise and personal knowledge in our proceedings on a Bill such as this, and it greatly adds to our credibility in the nation as a whole. Equally, I am not a Platonist in any sense. It would be a disaster for democracy if the only people who took part in debating and determining legislation were those with a professional background or current professional involvement in the field concerned, so I make no apology for speaking.

It has been something of a tradition so far this afternoon to say a few words about one's personal or family backgrounds in the field of the NHS. I will briefly follow that tradition. I am the third or fourth person to say this this afternoon, but my father also was a GP in the NHS, for 40 years, and an enormous believer in the NHS-he actually qualified a year or two after the NHS Act came into effect. I think that he believed that the NHS was a sacred institution, and I probably inherited some of that sentiment. His great political hero was Nye Bevan. Although he came to believe that something of a mixed economy, both on the supply and demand side, was necessary in the NHS-because otherwise great resources which were available to it would no longer be available to it-he avoided taking on private patients during his whole career. This was on the grounds that if he did not give them a better deal than his NHS patients he would be cheating the private patients; and that if he gave them a better deal than his NHS patients, he would be cheating his NHS patients. He was not prepared to put himself in that position, although of course he did treat his partners' private patients when they were on leave. That says enough about my family background in this area.

The matter of education and training is fundamental to the NHS-and has been, as the noble Lord, Lord Walton, and others, have pointed out. It has been a symbiotic relationship since 1947. It has been absolutely understood that medical teaching and education were inextricably linked with the delivery of NHS medical care; not just the formal requirement on consultants in teaching hospitals to teach-obviously part of the quid pro quo for their prestigious appointments-but right through the system, including in non-teaching hospitals. This includes the obligation to take on junior doctors and train them properly-the anecdote of the noble Lord, Lord Winston, went to the heart of that tradition; the very fine ethos of the medical profession to take on trainees right through the primary and secondary systems.

That has been the case for all that time since 1947. It is so enormously important that it should continue. Quite clearly, education and training are an existential requirement of the NHS. What has also been in place since 1947 and which has been accepted by successive Governments-I am not sure to what extent it is practiced at the present time-is a willingness to plan forward, to look and see if one has to make assumptions -one is never going to be exact about this. To look

25 Oct 2011 : Column 701

and see, taking account of doctors coming from abroad, of British-trained medical students who then want to emigrate; what kind of numbers we are going to have in the future, what kind of numbers we might need, and to modulate the supply against that anticipated level of demand. That is called planning, a word which I know is a very negative word for the present Government. I do not know whether that itself has had some influence on the point I am coming to.

The astonishing point I now come to is that education and training were not originally considered by the Government to be an absolute primordial, elemental responsibility of the Secretary of State and of the NHS, going forward. We had obligations in the Bill as it was originally presented to us from another place, for the Secretary of State to ensure that there was proper consideration given to removing inequalities, to maintaining common autonomy, to encouraging the promotion of research, which is obviously very important, and I commend the Government for that; and to promote public health-again enormously important, and I again commend the Government for that. There is nothing at all about education and training. It was an afterthought.

6 pm

I suspect that the explanation does great credit to the Minister. We in the House know that he is extraordinarily well informed, conscientious and politically sensitive. I speculate-I have no inside knowledge; if I did, perhaps I would not be able to talk about it-that the Minister went to his colleagues and said, "Good Lord, I can't possibly take this Bill to the House of Lords without something in it about education and training. I would be torn to pieces by the likes of the noble Lords, Lord Walton, Lord Patel, and other distinguished people, and not only my reputation but the Government's would be in tatters, so we have to have something in the Bill". I suspect that at the last minute he endeavoured to remedy the situation. If that is the case, I pay tribute to him; he did a very good day's work for the Government and, much more importantly, for the NHS.

I am not sure that his amendment is adequate. I would like to have seen words in it such as "comprehensive" or "integrated". I sense that these concepts are deeply suspect to the Government. However, they are inherent in the concept of the NHS and in its success over several generations not merely in delivering healthcare, which is its main aim, but in preserving the extraordinarily high and internationally recognised quality of British medicine. That is a remarkable achievement that could not have been conceived of had there not been an effective system of training and education, proper planning to ensure that that took place and a symbiotic relationship between the delivery of healthcare and training for healthcare.

I would like to know from the Government the explanation for treating education and training as an afterthought. Perhaps I will have the answer from the Liberal Democrat Benches straight away.

Baroness Tonge: I do not have an answer for the noble Lord, but I am as horrified as he is that education and training were not in the Bill from the beginning.

25 Oct 2011 : Column 702

I had not noticed that the words were not there and I was incredulous when I saw the amendment. I could not believe it. Would he agree that it would be better, in case there are other huge omissions that at this late stage we have still not spotted, if the Bill were withdrawn immediately and rethought?

Lord Davies of Stamford: I certainly agree with the noble Baroness on that. If I have to speculate again, the only hypothesis that I can credibly come up with is that the education and training requirement was not initially in the Bill because the whole thing is a hurried, makeshift, politically driven, ill thought through and frankly almost frivolous exercise-an appalling way to treat a great national institution of which we are all so proud.

I return to the publication of the White Paper in 1944, to which the noble Lord, Lord Walton, referred. He even lobbied the Minister at the time, Mr Willink. It was before I was born and it is wonderful to see the noble Lord in such great form all these years later, defending the NHS. It was an all-party achievement. I am afraid that the Conservative Party in its modern form no longer has the deep commitment to what many of us feel is a matter of national consensus that we hope will continue.

I repeat that this is in no way a personal attack on the Minister: far from it. He did everything that he could to remedy the situation. However, the Government right through the election campaign were against any kind of top-down reorganisation of the health service. They come out with a half-baked Bill, are immediately attacked from many sides and make concessions. People continually run to David Nicholson and say, "You'd better redraft this or that, we haven't thought about this, we have a problem here, what do we do about this?". David Nicholson dashes off something on a piece of paper and we get another amendment. It is not the way to legislate on any serious matter. It is certainly a lamentable way to legislate on our great National Health Service.

Lord Kakkar: My Lords, I strongly support the amendment in the names of the noble Lords, Lord Walton of Detchant and Lord Patel. I remind your Lordships of own interest as professor of surgery at University College, London. I point out that of all the Members of your Lordships' House who have a background in medicine, I completed my training most recently, some 12 years ago, and am acutely sensitive to the fact that training is vital if we are going to deliver high-quality care. I still remember vividly, and benefit from, the instruction that I was given in my training as a general surgeon.

The purpose of the Bill is to ensure that we provide the highest quality healthcare, achieving the very best outcomes and always putting the interests of the patients of our country at the centre of everything that we do. For this purpose, we need to achieve two fundamental objectives. We need high-quality education of undergraduates to prepare them properly for a life in any of the healthcare professions and to inspire them to be excellent doctors and other healthcare professionals. We must also ensure in postgraduate

25 Oct 2011 : Column 703

training that we train future doctors and other healthcare professionals to develop the skills that they require to deliver the best for our patients, and the judgment to apply their skills in an appropriate fashion.

Our system of training is so good and respected throughout the world because it is clinically based. Throughout, those who are fortunate enough to be taken on for training in positions in the National Health Service are exposed to, and have the great privilege to be involved in, the care of the patients of our country. However, the delivery of education and training is a hugely complex issue. Not only must we have the matter in the Bill; it must be dealt with in detail. Notwithstanding the fact that Her Majesty's Government propose to introduce a further Bill to deal with education and training in healthcare, which will be hugely welcome, in the intervening period we must recognise that the delivery of healthcare is integral to the delivery of education and training.

I give an example from training in surgery. Consultants who wish to take on training responsibility have to be trained to do so. They must make time available to have the training to become a trainer. They need to organise the delivery of their clinical practice in the care environment in which they work in a thoughtful fashion, to provide training opportunities for their trainees. Frequently that will mean that the utilisation of NHS resources is less efficient than if the facilities and sessions were delivered purely by a consultant. Training takes time; trainees work at a slower rate; they interrupt what they are doing to seek guidance; and they must be provided with the confidence to become good practitioners.

Beyond that, we need to release those working in our healthcare systems to support medical royal colleges and other professional bodies to set and then supervise the standards of training that must be applied across the National Health Service. That takes them away from clinical practice and again makes the utilisation of the resource potentially less efficient. For trainees, we have to provide an environment that supports training. This is complex, because it requires not only release from service commitments-again, this has an impact on resource utilisation in healthcare systems-but time within the delivery of clinical practice to learn to develop judgment in a fashion that is less efficient than it would be if the clinicians had been fully trained as medical or other healthcare practitioners.

For this reason, I strongly support the amendment that education and training must appear in the Bill as a commitment, an obligation on the Secretary of State for Health. We must also spend more time dealing with the issues that might present problems between the enactment of the Bill and the subsequent appearance of a future health Bill that deals specifically with education and training.

Lord Warner: My Lords, I support Amendments 2, 6 and 44 in particular in this group. However, I am sympathetic to and support the other amendments. The debate is going downhill. Following the eminent doctors, noble Lords will now get the perspective of a jobbing ex-Minister who was responsible for workforce matters in his time. What is particularly attractive

25 Oct 2011 : Column 704

about this set of amendments is not just that they put education and training of staff in the Bill, but that they bring a proper national perspective to this set of issues. I want to talk more about that national perspective because it is often lost sight of as people get very concerned about the responsibilities of employers at the local level. Of course, employers at the local level have a lot of responsibilities. They have the responsibility to ensure that the people they appoint to particular jobs have the skills, expertise and character, and can actually do those jobs. However, the sphere of operation of many of these local trusts, or even GP practices, is quite small geographically and they simply do not have the perspective to do the kind of planning that is required.

My noble friend Lord Davies said that planning is a dirty word. I am a child of the 1960s and was brought up to think that planning was rather a good idea, and I still think it is rather a good idea. Trying to work out what you want to do in the future seems quite a sensible way to run a National Health Service. We need to accept that there is a national role for the Secretary of State and the Department of Health in workforce planning and development. If you do not believe me, it would be worth going back to some of the Health Select Committee reports on this issue under the previous Government, which are very condemnatory of historical approaches by the Department of Health to doing good workforce planning across the NHS.

The issues that arise in this area for a Minister sitting in Richmond House are not ones that you can leave to employers at the local level to deal with. These issues are of long-standing provenance, such as the relationship between doctors from other parts of the world coming to work in the NHS, immigration law and the European working time directive, which has had a massive influence on the way doctors work. We cannot expect local employers to sort these issues out. We also have other big issues to consider; for example, revalidation of health professionals to ensure that they can and do keep up to date.

Another area where the previous Government have a lot to be proud of is the development of a range of sub-medical professionals who could take on jobs to relieve doctors to do more significant work. A good example of this was emergency care practitioners in the ambulance service, where totally new groups of people were brought in, who turned the ambulance service, if I may put it this way, from being just a taxi service to a hospital into a service that had people who could keep patients alive until they got to the hospital. We have a good tradition of developing those areas but in many cases, after a lot of good pilot schemes were introduced by particular local employers, the NHS was reluctant to go to scale. Nurse prescribing is a very good example where we trained lots of nurses but local employers did not always use them to do the job they had been employed for. You need some national perspective to tackle some of these areas.

I now want to say a few words about the much-maligned strategic health authorities. It has become fashionable to say that they were just bureaucratic empires that did not do anything terribly worthwhile. I am still proud that I set up 10 SHAs. They did a good

25 Oct 2011 : Column 705

job. The Government will find that they will need an intermediate tier between Richmond House and clinical commissioning groups and local trusts. No one has run the NHS since 1948 without an intermediate tier. The strategic health authorities were the hosts; they worked with the deans and helped to do some of the workforce planning and development in this area. They were the people you could rely on if you needed to ensure that there were enough training places at the local level for the next generation of doctors to secure their specialist training. If you do not have some capacity at that level, you will end up with the really rather difficult problem of how to find the training posts for the next generation of doctors to undertake their specialist training.

6.15 pm

I could go on but I will not. I just want to deal with what is becoming an urban myth about private providers of elective surgery services and their attitude to training. For my sins-it is a good confessional evening for me-I was responsible for negotiating wave 2 of the ISTC programme with the private sector. The private sector wanted more training responsibilities. It had been cut out of training in wave 1-a mistake-and it wanted training because it thought it would get better doctors working in its centres if they had a training function. Doctors in those centres wanted to see doctors in training, watching them and learning their trade in that setting, because those centres would be doing a very high volume of elective surgery, so you needed to use that. It has been put about in some rather strange way that the private sector did not want to do that. Frankly, it was not even in its commercial interests not to do that, so it is becoming a bit of an urban myth that it was trying to duck its responsibilities in the area of training.

Lord Ribeiro: I should just like to acknowledge that the references that I made earlier were to wave 1. I fully recognise and appreciate the work done by the noble Lord, Lord Warner, in trying to get a training contract with the private sector. However, there was a determination on the part of the Government when ISTCs were first introduced to keep the NHS consultants and trainees out of those centres.

Lord Warner: I ought to make clear that I was not launching an attack on the noble Lord, Lord Ribeiro, with whom I had an excellent relationship as a Minister when he was president of the Royal College of Surgeons.

I finish by saying that although we are making progress on this Bill by having amendments of this kind early on, it is important to realise their limitations. A number of noble Lords, particularly my noble friend Lord Turnberg, have raised a whole raft of issues which still need to be grappled with. This may be the first of a number of debates we have on the issue of education and training as we try to strengthen the Bill in this area.

Baroness Emerton: My Lords, I rise as the one nurse here. The debate so far is music to my ears but it would be even more so to the professions. When the Bill was published there was great concern and great disappointment that we had to wait for education and

25 Oct 2011 : Column 706

training to come as a further step in the White Paper and after this Bill. They see, as I think every professional here sees, that education and training is a fundamental basis for ensuring the primacy of patients.

This Bill gives an opportunity to look at the future of health and social care and to bring in integration and holistic care, as was pointed out at Second Reading. To do that, we have to look at the education and training of all healthcare professionals, and the holistic approach from primary to secondary and tertiary, back to primary and community care, and to work alongside social care.

One of the things that we particularly need to address is the commissioning of the workforce in the future. The noble Lord, Lord Warner, has mentioned the strategic health authorities. I am sure that we all have comments against the strategic health authorities, but one of their functions was to engage in workforce planning. At the moment, it does not seem at all clear how the commissioning will be for the future workforce of healthcare professionals. This will be a great issue that needs to be addressed urgently because we all know that education and training is a three or four-year process-longer for doctors. It will need to be addressed immediately.

I want to support the amendment tabled by my noble friends Lord Walton and Lord Patel, proposing an overarching responsibility for the Secretary of State. I am sure that we will have certain other amendments, which have been already mentioned, and future debate. I would just say how urgent it is that we get something in the Bill to reassure the professions that education and training are essential for the primacy of patients.

Baroness Jolly: My Lords, it seems that we are now getting an outbreak of agreement that there should be a duty on the Secretary of State regarding education and training in the Bill. This is to be welcomed.

The noble Lords, Lord Mawhinney and Lord Kakkar, put it really well, and I will slightly paraphrase what they said. The delivery of high-quality patient care is absolutely predicated on quality training. It is also critical, however, that standards are set, maintained and monitored, not only for doctors and nurses-we have heard a lot today from very eminent doctors-but for allied health professionals.

There will, however, be a plethora of local healthcare providers: some within the NHS and some outside. We are anxious to ensure that the local responses to the delivery of training will meet these standards. We hope that proper checks and balances will be put in place to give some sort of national oversight on this. The noble Baroness, Lady Finlay, alluded to this in her remarks. I was going to carry on by giving a couple of examples about the need for co-ordination across providers and talking about these independent treatment centres. I will refer only to phase 1 and not to phase 2; we will have got it right by then.

There were complaints, certainly in my local district general hospital, that doctors were seeing only quite complicated operations and not standard ones. It was to do with hips there, and we have already heard about elbows or shoulders elsewhere. Similarly, the noble Lord, Lord Winston, cited hernias and I have a hernia example, which I shall not share with the House.

25 Oct 2011 : Column 707

With this Bill, there is a wholesale need for a total change of culture within the NHS about the way we work. If we put patients at the centre it will create a huge need for training. It will be one-off training in the first instance but it will also need to be ongoing. This is something that I had hoped the Future Forum might be considering as part of its deliberation.

We are assured that the Government are keeping deaneries in place at present, but we share the anxiety of some of the royal colleges about their future. I have to repeat what others have said-and I heard it only this morning: there really is anxiety about this second Bill. The first assurance was that it would come in the next Session but now organisations are worried that the delay might be even longer. Therefore, we need something from the Minister that will help to focus people's attention and give them confidence that things are in place.

I have spoken to universities and other providers of training. They need reassurance and certainty, too. They need to plan their staffing and, in this, they form part of the health economy. It is in no one's interest to destabilise them. Can the Minister offer such reassurance on this?

We welcome the duty for Monitor to have regard to the need for high standards in the education and training of healthcare professionals. How will this interact with the potential for insufficient caseloads, in some circumstances, to train new healthcare professionals properly? How will national oversight of education and training be carried out to ensure higher quality? All these areas need to be teased out further, and we will come back to them on Report.

We all acknowledge the critical need for training and for standard setting. Can my noble friend give the House some reassurance that he will look at these issues again and, where possible and appropriate, consider regulation as a way of moving some of them forward in advance of the Bill?

Lord Alderdice: My Lords, I do not wish to repeat what other noble Lords have said very eloquently, but there are one or two issues which have not been referred to, to which I wish to draw attention. First, I pay my own tribute to the noble Lords, Lord Walton of Detchant and Lord Patel, and indeed other noble Lords who have kept fighting the good fight on education and training.

It is important, however, that we see this in as broad a fashion as possible. I am a doctor but I intend to speak mostly on non-medical education within the health service, since it has not, perhaps, received as much attention as it might. Like everyone else, I will undoubtedly speak from my own experience, which is, perhaps, a little different because it is in psychiatry and the psychological services. That is not just about treating patients; it is often also about training doctors in communication skills and the capacity to understand the psychological aspects of disease.

The noble Lord, Lord Hunt of Kings Heath, knows that I am not a recent convert to this question of trying to get regulation of psychotherapists and counsellors so that they can properly become part of an overall healthcare system.

25 Oct 2011 : Column 708

Lord Hunt of Kings Heath: My Lords, I think it was in 1999 that I was converted, alas.

Lord Alderdice: Sadly, just a little late, but there we are. The point is that when we think of medicine and nursing, we largely think about people who are educated at public expense-partly within the healthcare system and partly within the higher academic institutions-and employed largely in the health services but, in some cases, outside. In the area in which I work, I am afraid the truth is that the health service has not tended to provide the training for these people. In many cases, psychotherapists, counsellors, and HPC-approved people such as art therapists and music therapists, have had to train at their own expense because the health service has not provided the training. Some of them have worked in alcohol and drug addiction services, which the health service uses; or they have been used in suicide and self-harm services, which the health service uses; or they have been employed in general practice or in psychiatry and psychological services, which the health service uses. The health service, however, has not paid for the training of these people.

When I see amendments that refer to the maintenance of education and training, I see an ambition that is too small. I see a sense of self-satisfaction-of, "We've got to maintain what we've got because it's the envy of the world", rather than, "Some parts of the world have been moving substantially ahead of us, and we have to do some work to catch up with them". Therefore, I welcome the fact that there are amendments on this front, but also that the Minister has gone a little further. He is not just talking about the health service; he is talking, in the words of this amendment, about anyone who may be,

He is also saying that the Secretary of State will need a greater area of responsibility to ensure a wider provision of training.

Even within those services, which have been provided for the training of doctors and others, I have noticed in recent years that it has become more and more difficult for doctors to continue to provide for their own continuing professional development-which is an aspect of education and training-and to be free to provide supervision and training for others. The pressure is on them to provide the direct clinical service, and not to be free to commit themselves to education and training. I welcome these amendments, particularly that of my noble friend the Minister, which say, "No, the Secretary of State will have to undertake this".

I come to one final matter because I know the clock is going along. The noble Baroness, Lady Finlay, raised concerns about those who are outside direct healthcare provision having to demonstrate that they are providing training. I understand that entirely, and there is a lot to be said for it. However, one needs to be a little careful. In my service, for example, it was clear that the NHS was not going to provide care and treatment services, and it was not going to employ more people. So the question for me was this: how did I find a way, by using a small number of experienced and highly trained people, of creating a multiplier effect out in the community? The only way I could do

25 Oct 2011 : Column 709

it was by taking on and supervising some people who were working in the voluntary, community and other sectors so that they then had the capacity to train themselves or anyone else. I reduced the amount of clinical service I was providing directly by taking them on and supervising them. Then, effectively, I could treat a whole raft of people whom the health service was not prepared to provide the money for.

If we make it a rule that those often small NGOs and charitable groups have to account for the training of all sorts of other people, one simply makes it impossible for them to make their provision. So I understand entirely what the noble Baroness has said and I have a great deal of sympathy for the sentiment here, which of course is what is important, but I would simply caution against making such a strict rule that it becomes impossible for smaller providers who are not able to provide training-and could not pay the extra to do it. That would prevent some of us within the health service using them to provide the range of services which, until now, the health service has not provided. The Minister has been given some credit for this and I commend him and other noble Lords who have brought forward this proposal for the Bill, but let us build on it and try to be ambitious about what we can say in this Bill, never mind the one that might be coming down the road a little later.

6.30 pm

Baroness Finlay of Llandaff: My Lords, perhaps I may briefly intervene to try better to clarify my concerns. I am not asking that small providers should have to account for all the education they provide. Let me give a specific example. If you have a hospice home care team, it is very appropriate that they should take nurses under training on placement. They can go out with the specialist nurses and learn about provision in the community. It will not cost the hospice anything, but the hospice management might feel that having students around is difficult because of regulatory functions and so on. All I am saying is this: if the management says that it will not take on students to learn about its excellent clinical service, it must justify why it is closing that educational door.

Similarly, if a group of physiotherapy providers dealing with back pain has an NHS contract, it would seem appropriate that it should take on physiotherapy students in order that they can observe and learn ways of managing back pain, which is what the group is primarily dealing with. Those students will get very good training. If the group says, "We do not want to take students", then I suggest that it would be appropriate to point out in the contractual process that it needs to justify why it is refusing to provide education. Also, perhaps that group should not receive the full tariff because other providers will want to share their expertise for the greater good.

Lord Alderdice: My Lords, as I say, I understand the sentiments that the noble Baroness is trying to convey, but one has to be careful about generalising from one's own experience, which might not necessarily fit everywhere. For example, a noble Lord said earlier that in a lifetime of clinical work, only a couple of patients had ever said that they did not want a trainee

25 Oct 2011 : Column 710

sitting in. I am afraid that psychiatry and the psychological services are a wholly different ball game. Whenever we were setting up for trainees, we had to warn them in advance that one in every three patients would not allow them to sit in on an assessment because of its personal nature. When you are living in a smallish community, as mine is, where people know people who know people, these things are much more of an issue.

It you make demands of some of the NGOs and smaller community services-demands that may be completely appropriate in a larger setting such as hospice care-that is quite a different thing. I accept absolutely what the noble Baroness is saying, but please let us not make a rule for everybody which may detract from some provision that is entirely appropriate.

The Earl of Listowel: My Lords, I am reminded by this debate of my experience 10 years ago when visiting a hostel for young drug abusers in Kings Cross and speaking with the mental health nurse there. She said, "I was placed here nine months ago with three other mental health nurses. We were given no support and I am the last mental health nurse working with these very needy young men". She was doing an immensely important and demanding job. I do not know if she was not getting her line supervision from the NHS, although I imagine she should have been. I know that there is a concern that when health professionals are placed away from the mainstream of the NHS, they do not necessarily get the support they need. One issue that I would like some clarification on, perhaps in a letter, is that of continuing professional development and the supervision of professionals even when they are working in outreach services. When they are away from the mainstream health service, they should still be getting the proper supervision and support they need.

I said at Second Reading that one cannot legislate for the NHS to care for patients, but what one can do is nurture the people who work in the health service-the doctors, nurses and physiotherapists. One can give them the best training and the best ongoing support so that they are capable of caring and being considerate. What was happening with the mental health nurse I mentioned was that she was caring in the most adverse circumstances. She had everything stacked against her. She said, "We just did not get the support. It was not thought that we needed support to do this important work".

Concerns have been raised about future pressures on the training and development of healthcare professionals. There is also the Nicholson challenge: a lot of money has to be shaved in a short time. There is concern about fragmentation. As my noble friend Lord Kakkar said, training is an expensive process and costs professionals' time. It might be helpful to consider for a moment what has happened in the social work arena over the past 20 years or so. One has seen a lowering of the thresholds of entry into the social work profession and a diminution in quality. Many good people are working extremely hard, but it is widely recognised that there has been a diminution in quality. I am thinking particularly of child and family social workers. They have to assess a family and decide whether a child stays in the family or is removed, a decision that will quite probably have consequences

25 Oct 2011 : Column 711

for the rest of that child's life. But the thresholds have been lowered so far that, until recently, one could get on to a social work course with two Ds at A-level. Current social workers talk about "old school social workers" who knew the law and were methodical in their approach, and how they regret their passing.

I am grateful that this amendment has been tabled and it is right that it has been given such priority. There must be no diminution. Indeed, we must strive to improve training and support for the development of our care professionals. A particular area of concern has been that of psychiatry. We have had difficulty recruiting sufficient psychiatrists, and I understand that nowadays most psychiatrists do not have English as their first language, which is a matter of concern. I would cite the area of child mental health professionals as well. I know that the Royal College of Psychiatrists has been working hard on this, but I wanted to light this up as an area of concern.

Finally, I recently visited midwives working in a hospital in central London. I was advised that they received only one supervision session per annum. That seems an extremely poor amount of supervision. Normally in the health service it is provided every one to two months. Supervision sessions provide an opportunity to discuss, among other things, the continuing professional development needs of practitioners. I may have misunderstood the position and there may be some other context for midwives, but I would be grateful if the Minister could write to me with a bit more information about how midwives are given the continuing professional development they need.

I look forward to the Minister's response. This is a tremendously important debate that is key to ensuring that, in the future, patients in the NHS get the quality of care they deserve.

Lord Cotter: My Lords, like others, I should declare an interest. My father was a GP and my wife an occupational therapist. I have taken an interest in the NHS for the past 12 years in Parliament, but I feel more intimidated than the noble Lord, Lord Mawhinney, for good reason. However, I see great merit in Amendment 2 and the other amendments in the group. As many colleagues have said in their speeches, there is a big issue here that needs to be addressed in a specific way. To be specific, at Second Reading I raised the issue of healthcare assistants. A concern has been expressed to me by others-and I read in the newspapers-that a voluntary code for healthcare assistants may just not be enough.

This morning I was speaking to a nurse and she made a very clear point. She said: "We are directing healthcare assistants in nursing and we give them the jobs to do but I do have a concern that if they do not have sufficient training they may carry out the job I have given them not particularly well and that is a responsibility which goes back upon my shoulders.". To quote from the papers,

"It is amazing that healthcare assistants, caring for patients in uniforms indistinguishable from nurses, are completely unregistered"-

That may not be quite correct, I do not know-

25 Oct 2011 : Column 712

I have highlighted this issue for later in the Bill. I hope the Minister will consider this and have time to look at it at a later stage.

Earl Howe: My noble friend will be aware that we have had two Oral Questions recently that have covered this point. I want to correct one point he made-our proposals are for a voluntary register, not a voluntary code. He was talking about a voluntary code. If under our proposals a healthcare assistant were to register under the voluntary system there would be a set of standards that went with that registration. The code would not be voluntary in that sense. I look forward to the later stages of our Committee debates to discuss these very important issues. We will have that opportunity.

Lord Cotter: I thank the Minister very much. As usual he was addressing the issues. I hope that by highlighting them again we will ensure that training is going to be really adequate for them to meet the requirements.

Lord Mackay of Clashfern: My Lords, I support the view that this is an extremely important issue. It is also extremely difficult and there is a lot to be done to get this right. I am an honorary fellow of two Scottish medical colleges. The contribution of Scotland to the training of doctors and nurses has to be kept in mind, and many other parts of the world also contribute to our NHS training, particularly at the graduate stage. It makes it extremely difficult to know how to cater for all the possibilities and I wish my noble friend every success in coping with this problem.

Lord Hunt of Kings Heath: My Lords, as this is the first day of a new stage of the Bill, I am required to start by declaring my interests. I am chair of the Heart of England NHS Foundation Trust, president of the Royal Society of Public Health, the Fluoridation Society and the Health Care Supply Association, consultant trainer with Cumberlege Connections and member of the advisory council of Easy Care.

The noble Lord, Lord Cotter, put his finger on it when he spoke of concerns about the quality of nursing care in some parts of the NHS. This has led in the past few months to considerable debate about the quality of education and training of nurses and indeed healthcare assistants. We will, of course, be coming back to that issue later in Committee. However, it has served to illustrate the critical importance of education and training of the healthcare workforce, be they doctors, nurses, AHPs or indeed even psychotherapists.

My Amendments 6 and 44 seek to ensure that the Secretary of State exercises leadership and responsibility in this area. This is very important in the context of the Government's intention to create a much more diverse and disparate healthcare system in the future. It is essential that we protect the integrity of a national approach to professional education and training.

6.45 pm

Past experience shows that, particularly at a time of financial stringency, the NHS has sometimes been tempted to cut spending on education and training

25 Oct 2011 : Column 713

because it has been seen as an easy short-term way to reduce expenditure. It is essential that the Secretary of State assumes responsibility for ensuring sufficient training commissions and the assurance of quality and standards.

The Government have made it clear that they wish to establish a special health authority, Health Education England, which is going to provide leadership and quality assurance across the system. Alongside that the Government are proposing greater local provider involvement in education and training with provider-led skills networks taking on responsibilities for strategic workforce development.

I have noted the concern of the noble Lord, Lord Patel, in this area. I agree that there are real risks unless a national framework is set with national co-ordination. Like my noble friend Lord Warner, as a health Minister I made a number of rather painful appearances before the Health Select Committee to explain why the NHS was not investing sufficiently in education and training. Like him, I found that strategic health authorities have been very helpful in intervening locally when there were problems.

Who will intervene locally if there are problems in the future? Will it be the clinical senates? Will it be the local offices of the national commissioning board, which I believe to be inevitable? Will it be the commissioning support units that are going to be set up to support clinical commissioning groups? It would be very helpful to know who at a regional or local level will be able to take some kind of leadership role, particularly when there is evidence of things going wrong.

However, I believe it is right there should be more local provider involvement in education and training. Many of the current discussions between commissioners and the universities and the other providers of education take place without NHS trusts being present. Yet the quality of training is crucial to the future workforce in those trusts. If students are to get practical training in NHS hospitals they need the active support of those hospitals. It makes sense to involve NHS trusts more.

I notice that in his extensive letter to us following Second Reading the noble Earl in relation to education and training did not mention NHS trusts at all. He uses the word "provider". I hope that is not symptomatic of an approach by the Government which is going to write out "NHS trust" and only use the term "provider" in their unwise attempts to set up a competitive market in the NHS.

Will the noble Earl give an assurance that the private sector will be required to make a contribution to the cost of education and training? The noble Lord, Lord Walton, made that point at the beginning of our debate. This becomes very important if contracts are given to the private sector that undermine the ability of NHS trusts to provide comprehensive services. This is why cherry-picking is so feared in the health service and it would be grossly unfair if private sector companies which win such contracts did not have an obligation to contribute to education and training.

At the national level, I have already referred to the establishment of Health Education England. I hope the noble Earl can inform the House what is proposed and specifically what would be the relationship between it and the Secretary of State. I hope that he can

25 Oct 2011 : Column 714

confirm that this is not an attempt to move responsibility for education and training offshore and to absolve the Secretary of State of proper accountability to Parliament for ensuring the cohesive nature of education and training. I would like him to assure me that the number of training commissions will be decided nationally by the Secretary of State. Unless that happens, we will not have the national planning that my noble friends Lord Davies and Lord Warner referred to. Without some kind of national planning, we will go back to the bad old days of commissions being reduced in times of financial difficulty and the health service in a few years finding itself with a great shortage because we have not trained enough new people to come in. There will then be panic and a huge expansion in training commissions. A few years later, we will have unemployed professionals unable to get jobs within the health service. It was because of that continual feature of the NHS over many years that a national framework was developed. It is absolutely essential that the Secretary of State retains responsibility for that.

I also hope that the Minister will respond to the noble Lord, Lord Walton, who asked him about the place of clinical senates, the national regulatory bodies and the deaneries in the new setup.

Can the Minister assure me that his amendment gives the Secretary of State a comprehensive duty and appropriate powers? It uses the phrase "any relevant enactment" and defines it thus:

"In subsection (1), 'relevant enactment' means section 63 of the Health Services and Public Health Act 1968"-

of blessed memory-

That is parliamentary counsel at its very best. But what does it mean? I am worried that it is rather a restrictive definition of the powers of the Secretary of State. I should be grateful if the Minister could respond to that point. In particular, can he assure me that the Secretary of State will have sufficient power in relation to the budget for education and training and the number of training commissions linked to national workforce planning, that there will be structures to underpin a comprehensive approach, that public health doctors will be covered, that standards will be set and monitored, that Health Education England will be properly accountable to the Secretary of State and thence to Parliament, and that the duty on the Secretary of State will embrace all parts of the NHS and other providers? Above all, can he assure me that the ethos that my noble friend Lord Winston mentioned, of a commitment on the part of all those in the health service to education and training, will continue under the new arrangements?

Earl Howe: My Lords, I thank the noble Lord, Lord Walton, for introducing his amendment, which began this debate, and other noble Lords for their excellent and powerful contributions.

The Government recognise that we have some of the best health professionals in the world and we believe that they should be supported by a world-class education and training system. I am heartened by

25 Oct 2011 : Column 715

Amendments 2, 6, 8A, 8B and 44, because they indicate that many noble Lords here today share the Government's view on this matter. That has been amply confirmed by the speeches that we have heard.

Amendment 6, tabled by the noble Lord, Lord Hunt, and the noble Baronesses, Lady Thornton and Lady Finlay, and Amendment 2, tabled by the noble Lords, Lord Walton and Lord Patel, would both insert in Clause 1 a duty on the Secretary of State to maintain a system of education and training in the health service.

Amendment 44, tabled by the noble Baroness, Lady Thornton, and the noble Lord, Lord Hunt, would insert after Clause 5 a new clause that would give the Secretary of State a new duty to maintain a comprehensive, multi-professional education and training system for health professionals, as well as to ensure the continued professional development of all staff delivering NHS services.

Amendments 8A and 8B, tabled by the noble Baroness, Lady Finlay, would both insert in Clause 1 a duty on the Secretary of State to maintain a "nationally co-ordinated" system for professional education and training as part of the comprehensive health service.

In its report earlier this year, the Future Forum emphasised the critical role that education and training will play in the continued improvement of healthcare services. In our response to its report, we not only made it clear that we agreed with this point but also, in recognition of this fact, committed to introduce an explicit duty for the Secretary of State to maintain a system for professional education and training as part of the comprehensive health service.

Government Amendment 43 fulfils the commitment that we made in June in response to the Future Forum's report. Indeed, it goes further than our original commitment. First, the Secretary of State's duty goes beyond just health professionals-I say to my noble friend Lord Cotter that healthcare assistants would be included, as well as other health professionals. Secondly, the Secretary of State will be under a duty to maintain an "effective system" of education and training rather than just a "system". I was not quite clear, listening to the noble Lord, Lord Walton, whether the Government's amendment has found favour with him. It has been very carefully drafted and I hope that he will support it. I say to the noble Lord, Lord Hunt, that the amendment is not restrictive of the Secretary of State's accountability. I hope that he can see from the wording that the duty is clear. Subsection (2) is drafted so as to cover all potentially relevant powers. These are not necessarily powers in the 2006 Act. We are satisfied that he has sufficient powers.

I take this opportunity to reassure the noble Baroness, Lady Finlay, and the noble Lords, Lord Warner and Lord Hunt, that our amendment provides for co-ordination of education and training at a national level. We agree that that is essential; it has never been in question. The Secretary of State will be under a duty to secure "an effective system" of education and training. No system of education and training could be considered effective were it not co-ordinated at a national level. The noble Lord, Lord Warner, was right to mention some of the wider issues that need to be factored into that process. In addition, a new body,

25 Oct 2011 : Column 716

Health Education England, will be set up to provide oversight and national leadership for education and training. In its leadership role, HEE's task will be to bring together all the relevant parties to oversee and shape the development of the healthcare workforce, including the royal colleges and the professional regulators. Finally, the department will own the strategic design of the new education and training system and develop an education and training outcomes framework to set out the outcomes against which the system, and HEE, will be held to account. That is a first.

We believe that the amendment that we have tabled most accurately reflects our policy intention and the Secretary of State's legal functions in relation to education and training in the new system. Indeed, we have already seen a positive response from the BMA to our amendment.

7 pm

Lord Maclennan of Rogart: My noble friend was a little cursory in dealing with Amendment 44 and the criticisms made by the noble Lord, Lord Hunt. Why he has not simply accepted the amendment of the noble Lords, Lord Walton of Detchant and Lord Patel, which seems to be all-embracing and to cover the entire spectrum of healthcare issues, in the light of the requirement, which is in the Bill, that the Secretary of State must continue the promotion in England of a comprehensive service designed to secure improvement? My noble friend spoke not of improvement, but of supporting existing services. That does not go far enough in the present circumstances.

Earl Howe: My Lords, I cannot speak for Amendment 44, which is not the government amendment; but I can speak for Amendment 43, which is. My advice is that the amendment delivers everything that my noble friend has just said. I have not given a critique of the amendment of the noble Lord, Lord Walton, but as I have been invited to do so, I will now offer one. It does not cover non-clinical staff or trainees; it covers the healthcare workforce. So, in actual fact, I think it is deficient; and I urge the Committee to accept the government amendment on that basis.

Lord Warner: I am sorry to interrupt the Minister's flow, but he has been interrupted, so I thought I would ask my question now. The Minister has given us quite a lot of assurances about what the government amendment would cover, but I put to him a particular issue that came up-not that long ago, in 2006-when there was a major national row about the number of specialist training places. A large number of doctors and would-be doctors marched on London to complain about that system. It was absolutely clear that the only person who could deal with that issue in any satisfactory way, for both the professions and the public, was the Secretary of State. Is the Minister absolutely confident that the government amendment would enable the Secretary of State to act in such circumstances?

Earl Howe: The Secretary of State could act if Health Education England was failing in its functions. Our vision is that we will be giving functions to Health Education England to oversee a national system. If it does its job properly, then the situation the noble Lord

25 Oct 2011 : Column 717

describes would, one hopes, be handled in a satisfactory way. If it fails in its functions, then, yes, of course it would be the duty of the Secretary of State to step in and oversee the process.

Lord Owen: This is a crucial question. The word failure is extreme. A lot of us worry that waiting for failure would be too late. We want to see an intervention capacity when the Secretary of State has anxieties or doubts about what it is doing and that he has a position to represent this Parliament-or any Parliament -on the issue.

Earl Howe: I know that is the noble Lord's concern and of course I understand it. However, it is the policy of the Government to confer functions where they best sit. If the Secretary of State were to intervene at any whiff of trouble, it would run counter to that vision. I believe that there will be ample scope in the next set of amendments to talk about this very subject; but it is very important to understand that we have quite deliberately taken the view that functions, duties and responsibilities should sit with individual bodies and that the Secretary of State should be there to ensure, to the public and Parliament, that those bodies fulfil their duties and functions correctly.

I suggest that we defer the particular issue raised by the noble Lord, Lord Owen-about the degree of system failure that has to occur before the Secretary of State intervenes-to the next set of amendments. The amendment we are dealing with now has to do with the ultimate accountability of the Secretary of State for the education and training system-which I am saying to the Committee is there in our amendment.

Lord Mawhinney: I understand why the Minister wants to take this issue in the next set of amendments. A number of us will contribute to that debate, because it is crucial. A moment ago, he said that the Secretary of State would have national co-ordination responsibilities for education and training, which I think was broadly welcomed. My question is simple: is my noble friend willing to put that phrase or convey that aspect in the Bill by amending government Amendment 43?

Earl Howe: The trouble with that is that we are straying into the mechanics and the detail of the education and training system, and we are still consulting on how it will work. That is the difficulty I have in answering some of the detailed questions that are being put to me. I can answer many of them, but once we move into particular questions on how the system for education and training will all fit together, it would be imprudent of me to put anything on to the record at this stage.

Lord Patel: I go back to the question that the noble Lord, Lord Warner, asked. In the event that the example he gave should happen, ipso facto, it would mean that Health Education England had failed.

Earl Howe: It might or it might not. All I can say is that the Department of Health will have designed and co-ordinated the new system and will develop the

25 Oct 2011 : Column 718

outcomes framework. Health Education England will be providing oversight and national leadership for education and training. The department and Health Education England, together, would no doubt have a role in sorting out the kind of situation that the noble Lord, Lord Warner, has adumbrated. However, it is a little difficult to discuss this in hypothetical terms. I have tried to set out, broadly, how the system should operate-

Lord Warner: My example was not hypothetical-it actually happened.

Earl Howe: It did happen, but it did not happen with the system that I have outlined in place. As I have just said, NHS Future Forum is talking to a great many people about where exactly responsibilities should sit for what, and how the system should work, which is why-I confess freely-I am in difficulties. While I would love to be able to answer detailed questions about the system, we have quite consciously deferred these matters to a second Bill.

Lord Winston: Perhaps I could ask the Minister a general question. The noble Lord has been specific in picking up some of the details of the amendments. The beauty of the amendment proposed by the noble Lords, Lord Patel and Lord Walton, is its simplicity and ethos. Government Amendment 43, proposed by the Minister, refers to the,

in the health service. Considering becoming employed can mean a whole range of things. A lot of people who are considering becoming employed in the health service may not actually apply for a job. How is that possibly enforceable within the context of this amendment?

Earl Howe: I am surprised by that criticism because that is designed to capture trainees, who may not have a guaranteed job at the end of the day. If you simply refer to people who are already employed, you surely cut that cohort out of the equation. That is the purpose of those words, and I think they are entirely appropriate.

Lord Hunt of Kings Heath: I return to my noble friend Lord Warner's intervention. In the case that he mentioned, it was I who was summoned before the Health Select Committee to explain what we were going to do about the problem. We intervened and told the SHAs that they jolly well had to sort this out. I do not see, under the arrangement that he is proposing, who on earth is going to be able to intervene.

As the noble Lord, Lord Owen, suggested, I suspect that an intervention against Health Education England will be very rare indeed, in terms of being able to be comprehensively assured that HEE had failed in its duty. Indeed, there is surely a risk that if you have a narrow quango, such as HEE, solely concerned with education and training, it will not be concerned about resource issues or about the duty of the Secretary of State to promote or assure a comprehensive health service; only the Secretary of State himself can come to conclusions about the overall direction of the health

25 Oct 2011 : Column 719

service; only the Secretary of State can balance the conflicting demands of education, service provision and resources. There is a great danger of seeking to push all these responsibilities offshore, because when trouble comes-and trouble will come-it will be the Secretary of State whom the public and Parliament will expect to intervene. At the moment, I cannot see how, under this system, if things go wrong, they are to be put right.

The Earl of Listowel: I take the noble Lord's point, but I also think of the case of the Youth Justice Board, which has been a very successful non-departmental body and has improved outcomes for young people in the criminal justice system significantly. There has been concern from the Secretary of State responsible for criminal justice about the accountability of the Youth Justice Board, which is shortly to be wound up-well, depending on the views of your Lordships. The virtue of the Youth Justice Board is that it is a great centre of expertise in the area of youth justice. Its chair and board have great experience: one member of the board is a judge in the youth court, another is the chief executive of a children's charity. The point is that there is great virtue in distancing the Secretary of State to some degree-for instance, the education, perhaps, of health professionals-and giving it, if the board is chosen well, to people of the right calibre.

The other side of that is that sometimes the Secretary of State will intervene too often and detrimentally to the education of health professionals. In fact, vesting authority in a board which is well chosen and has the full support of health professionals and keeping the intervention of the Secretary of State to the minimum may ensure better continuity in the education and training of the workforce and better outcomes.

Lord Hunt of Kings Heath: My Lords, surely there is a very great difference between the Youth Justice Board, the abolition of which is greatly to be regretted, and Health Education England. The Youth Justice Board has to embrace the whole of the responsibility for youth justice. What the noble Earl, Lord Howe, is suggesting with Health Education England is establishing a quango which will have a very narrow focus on education and training. The Youth Justice Board is concerned with that, but is also concerned with the provision of custodial places within our prison system. That is very different.

The Earl of Listowel: I thank the noble Lord. I can see the difference and I thank him for that helpful correction.

Baroness Finlay of Llandaff: Before the Minister resumes his speech-I am sorry to do this, but I would like clarification. From what he has said, I understood that under this amendment the Secretary of State will not have a comprehensive duty, so that if Health Education England finds that the National Commissioning Board and the clinical commissioning groups are not making provision for education within the commissioning process that they set in place, the

25 Oct 2011 : Column 720

appeal would not go to the Secretary of State. I am not sure who the educational providers would appeal to if Health Education England found that it could not function because the commissioning process was not allowing for education.

Earl Howe: Perhaps I may just clarify some of this. The wording of the government amendment could not be clearer:

"The Secretary of State must exercise the functions ... so as to secure that there is an effective system for the planning and delivery of education and training".

That means that he is ultimately accountable. Of course, he will be answering questions in front of the Select Committee or Parliament: that is a given in relation to education and training, as it is for anything else. The role of Ministers in Parliament will not change. Ministers will still answer letters, Written Questions and so on. Whatever system we put in place, the government amendment makes the Secretary of State's ultimate accountability and responsibility for ensuring an effective system absolutely clear. However, many of the questions that have been asked-I was very grateful to the noble Earl, Lord Listowel, for what he said-are about how the system will work, and that is a matter on which we are still listening to stakeholders.

7.15 pm

Lord Mawhinney: I want to go back to what my noble friend said about the Government committing themselves to a national co-ordinating role for education and training. He specified that it was something that the noble Lords, Lord Walton and Lord Patel, and the noble Baroness, Lady Finlay, would welcome, because they had been asking for it. He said that and we are all pleased that he said it. When I asked him if he would put that in Amendment 43, he said that he could not do it because they were still consulting and thinking and that that was a commitment that he did not feel able to make at the moment. But he has already made the commitment. It is on record that the Government will have a national co-ordinating role. I am not trying to put words in my noble friend's mouth; those are the words that came out of his mouth. My question was simply, what is there to stop the Government putting those words, that commitment, in Amendment 43?

Earl Howe: I am grateful to my noble friend and, naturally, I will give full consideration to his suggestion. The government amendment represents the fulfilment of our undertaking, made in another place and more publicly, to put clearly in the Bill the Secretary of State's accountability for an education and training system. That is what we have done. It may be that we can go further in the Bill; I will certainly consider that. Our intentions, as I have enunciated them, are clear, but I come back to saying that we do not want to pre-empt the findings of the Future Forum and the wider consultation that we are engaged in.

Lord Winston: I am sorry to interrupt the Minister again, but I find it incredible that we are now in Committee in the second Chamber on this large Bill and the Government are still apparently in the middle

25 Oct 2011 : Column 721

of their listening exercise. Does this not argue that the Bill is extraordinarily badly prepared and that these things should have been thrashed out well in advance? Is that not what the noble Baroness, Lady Tonge, was talking about? It is something that will shock people who are listening to this debate.

Earl Howe: No, my Lords, that is not the case. I completely reject not only that remark but also the remark of the noble Lord, Lord Davies of Stamford. Our plans for education and training have been moving forward ever since the election. The White Paper in July 2010 set out the broad principles underpinning education and training reforms. A consultation paper was then published in December last year, with the consultation finishing in March of this year. The Future Forum then listened to further views. It recommended the new duty which we are discussing today in the form of Amendment 43, and we accepted that recommendation. Meanwhile, the Future Forum continues to listen to the views of the wide range of stakeholders and its report will feed into future legislation on this topic. We have consciously deferred the meat of this issue to a future Bill, because we have to get it right. We have committed to publishing further proposals on education and training once the Future Forum has concluded its report and there will be a chance for noble Lords and others to feed in at that point if they so wish.

Lord Davies of Stamford: I am afraid that I must stress this point a little further. This debate has revealed a fundamental contradiction in the Government's position. The Minister argues that Amendment 43 adequately defines the responsibilities that the Secretary of State will have for ensuring that there is an adequate system of medical training and education in this country. It may or may not be the case that the formulation in Amendment 43 is adequate, and we must decide on that matter today.

At the same time, though, the Minister is confessing that the powers that will be given to the Secretary of State in order to fulfil those responsibilities have not yet been defined. We do not know what they are. They have not been decided yet. Surely it is a fatal mistake in life to give anyone responsibility without being clear that they have the powers to undertake it. That is precisely the position in which the Government are placing the Secretary of State.

Lord Walton of Detchant: My Lords, before the debate on these amendments concludes, it had not been the intention of my noble friend Lord Patel and me, on coming to the Committee today, to divide on our Amendment 2. However, our view has been changed a little in the sense that the support that that amendment has had from all sides of the House has been very powerful. I shall read again what the actual Bill says. Under the heading,

"Secretary of State's duty to promote comprehensive health service",

it says:

"The Secretary of State must continue the promotion in England of a comprehensive health service designed to secure improvement ... in the physical and mental health of the people of England, and ... in the prevention, diagnosis and treatment of illness".

25 Oct 2011 : Column 722

All that we have suggested in Amendment 2 is the addition of a paragraph (c) to secure improvement,

I find it difficult to suggest that any Government could refuse that amendment. It could be complementary to government Amendment 43. Will the Minister, who everyone in this House feels great respect for, take the amendment away, talk to the Government about it and see whether they might accept it as a government amendment on Report?

Earl Howe: I will happily consider that between now and Report, as indeed I will consider all the points that have been powerfully made in this debate. I have quite a lot more to say in answer to various questions that have been raised, and I hope that I will be given the opportunity to do so.

The Government's amendment, quite consciously, does not confer any new powers on the Secretary of State. It requires him to exercise his existing powers to provide an existing system. The duty means that he would have to intervene if the system was failing and ineffective. He has a range of powers, including the powers to provide or commission training under Section 63 of the 1968 Act, as referred to in subsection (2) of the Government's amendment. However, the point is that future legislation may add further powers to those that the Secretary of State already has, and that is what I cannot pre-empt in my reply today.

Lord Willis of Knaresborough: My Lords, I am sorry to interrupt. I have listened carefully to the whole debate today and it seems that we are hampered by the fact that we do not know what is going to go into this new Bill or indeed when it is going to appear. The Minister has been consulting on this issue for nearly 18 months. Will he give the House a clear understanding that in the next Queen's Speech there will be two Bills, one of which will deal with education and training while the other deals with research? Could he give the House that assurance so that we know what the timetable is for the delivery of these elements?

Earl Howe: I would like nothing more than to give that assurance but unfortunately I cannot, as I am not in a position to know what the Government's programme in the next Session is going to be. I know that it is the hope and wish of many noble Lords that we will have a social care and health Bill.

Lord Willis of Knaresborough: This is important. I understand what the Minister is saying but at least he could have given us guidance that such Bills would have been in the next Queen's Speech. If we are talking about another period of two years or more, we are looking at total confusion for that period of time in terms of the delivery of education, training and, later on, research. That cannot be what the Government want; it certainly cannot be what the Minister wants.

Earl Howe: My noble friend knows-very well, I hope-how important research is to Ministers in my department, how important education and training

25 Oct 2011 : Column 723

are and how important it is that we have a system for the provision of social care that commands the support of all parties. A Bill of that kind is something that we dearly wish to see coming to Parliament as soon as possible. However, he will understand that I am not in a position to give any undertaking about the next Session, much as I would love to be able to wave a wand and do so.

Perhaps I could be allowed to answer some of the questions that have been asked of me.

Noble Lords: Hear, hear.

Earl Howe: The noble Lords, Lord Walton and Lord Turnberg, asked me about postgraduate deaneries. Postgraduate deans carry out a crucial function of quality assurance and oversight of medical education, and we value those functions. The Government were clear in our response to the NHS Future Forum that we intend to retain the deans. In future they will become part of the new provider-led bodies that will be responsible for education and training locally. We have extended the timetable for the abolition of the strategic health authorities to April 2013 to allow for greater time to manage a smooth transition. We propose that Health Education England will be established next year as a special health authority in order to support the transition.

The noble Lord, Lord Turnberg, made the telling point that the time available for teaching is steadily being shaved away so that clinical commissioning groups, as he put it, should have the budget to fund teaching sessions. Funding for clinical placements and the associated costs already comes via the multiprofessional education and training budget, which at the moment is £4.9 billion, a not insignificant figure. This budget will be allocated by Health Education England in future to healthcare and education providers.

The noble Lord also asked me about the training of public health doctors and whether such doctors employed by Public Health England and seconded to local authorities would be caught by this. Health Education England will work with Public Health England to oversee education and training for public health staff. I suggest that there will be ample time on later clauses to discuss the role of public health doctors more generally; that is perhaps where we can come back to this, and I look forward to that.

The noble Lord, Lord Patel, asked how Health Education England would hold providers to account and how local skills networks will be governed. HEE will have contracts with healthcare providers for education and training, and this will be underpinned by an education outcomes framework. We envisage that skills networks will need to have an independent chair and meet rigorous authorisation criteria set by HEE to demonstrate that they have appropriate capability, financial controls and the necessary partnerships with the education sector.

I was also asked by the noble Lord, Lord Walton, and the noble Baroness, Lady Finlay, how we will ensure that the policy of "any qualified provider" does not harm education and training and, indeed, how private providers will be contributing to education. The noble Lord, Lord Hunt, asked me a similar question. By giving healthcare providers more responsibility for

25 Oct 2011 : Column 724

workforce development, we will place a greater emphasis on their working in a co-operative way to ensure a workforce supply of health professionals. This will be reinforced by duties on healthcare providers-I apologise to him for the phrase, but it is an all-embracing one -to consult on workforce plans and co-operate on the planning and commissioning of education. Proposals are being considered for a levy on all healthcare providers to contribute to the costs of education. However, this is a very complex matter and it needs more detailed consideration before being looked at for future legislation.

With regard to the responsibilities of the board and clinical commissioning groups, an issue raised by the noble Lord, Lord Walton, paragraph 130 of Schedule 4 to the Bill amends Section 258 of the NHS Act 2006 so that the Secretary of State, the NHS Commissioning Board and clinical commissioning groups must all exercise their functions to secure that facilities are made available for university clinical teaching.

7.30 pm

I was asked about the role of the royal colleges and other professional bodies. We want to reinforce national standards and the role of professional bodies such as the royal colleges. That is why we are establishing Health Education England to bring greater national focus, leadership and expertise to contribute to the continuous improvement of education and training. Health Education England will work closely with the royal colleges, professional regulators and a wide range of other bodies.

The noble Earl, Lord Listowel, asked about continued professional development of people in outreach services and midwives. I am more than happy to write to him on that important issue. My noble friend Lady Jolly asked about Monitor's duty to have regard to the need for high standards in education and training. Monitor will need to consider how its regulatory activity affects education and training by providers, and bear in mind the need for high standards when imposing obligations on providers.

I was asked by the noble Lord, Lord Walton, about the role of universities. Partnerships with the higher and further education sector are clearly important if we are to plan and commission education and training that continue to respond to the needs of patients. Where the NHS provides the funding for undergraduate education-for nurses and midwives, for example-the NHS will continue to lead on planning. It will work in partnership with higher education institutions and take account of advice from the Centre for Workforce Intelligence.

For those courses not directly funded by the NHS, for example medicine, there are discussions at national and local level to ensure that supply matches demand, with advice provided by the Centre for Workforce Intelligence. For example, the Department of Health and NHS colleagues will work with the Department for Business, Innovation and Skills and the Higher Education Funding Council for England to review medical and dental undergraduate numbers. Health Education England will bring together stakeholders to provide clinical advice and consider the future needs of the service.

25 Oct 2011 : Column 725

The noble Baroness, Lady Finlay, asked how we could ensure that education and training takes a UK-wide perspective. Education and training is a devolved issue, as she is aware. However, much of the education system, in particular medical and dental education, operates on a UK-wide basis. We aim for co-operation and consistent arrangements, as there are at the moment. UK-wide liaison is currently formalised through the Medical Education UK scrutiny group, attended and chaired in rotation by the four UK CMOs.

A memorandum of understanding ensures that any policy developed in one Administration that impacts across the UK is considered at a UK level and is signed by the DH director of medical education and the CMOs of the devolved Administrations. The Medical Education UK reference group, attended by officials from the four UK health departments, monitors that memorandum. It is intended that similar arrangements will be established as part of the reforms.

I think I have spoken long enough. This has been an excellent debate and, to pick up a point made by my noble friend Lady Jolly, I am sure that members of the NHS Future Forum will consider it with great interest. My door is open to noble Lords for a continuing dialogue on these issues, not least to the noble Lord, Lord Walton, as I have already said. I hope that he and other noble Lords will feel able not to press their amendments for now on the basis of the Government's amendment on which I am happy to provide further clarification if it is needed.

Baroness Masham of Ilton: My Lords, could I ask the Minister about something that I do not understand? Why in my noble friend's amendment does it not include the training of healthcare assistants?

Earl Howe: I have already made clear, my Lords, that the amendment could include healthcare assistants. We have been careful to make it all-embracing so that it includes not only all health professionals, but health support workers who are not health professionals.

Baroness Masham of Ilton: That is the Government's amendment. The Minister said that my noble friend's amendment did not include them.

Earl Howe: As I read it, it is the noble Lord's amendment and it is for him to speak to it, but it refers to the education and training of "the health care workforce". That will include a lot of people, but not those who are not healthcare workers.

Lord Patel: That depends on the interpretation of the word "care".

Lord Walton of Detchant: My Lords, this has been a lengthy debate on an extremely complex and difficult matter in a complex and detailed Bill. Medical education and training of the entire NHS workforce is absolutely crucial and it is vital that it appears in this Bill. That is why I very much hope that the Minister will take away Amendment 2 and think about trying to persuade the Government to adopt it. Other issues that have been

25 Oct 2011 : Column 726

raised will not go away. For instance, my medical colleague, the noble Lord, Lord Alderdice, talked about psychotherapists. There was also talk about the crucial problem of the future of healthcare assistants.

I would remind your Lordships that 15 years ago I steered through this House the Bills to regulate chiropractors, followed by regulation of osteopaths, so that they are now regulated by statute. I also chaired the House of Lords Select Committee on complementary and alternative medicine, which held a detailed inquiry. In that field, too, it is good to know that herbal medicine practitioners are close to being regulated. Therefore people who work in other aspects of healthcare will have to consider whether or not they will need and require statutory registration and regulation, though not in this Bill perhaps.

The government amendment is right as far as it goes, but it leaves a massive amount of information still up in the air. The Minister has given us a comprehensive and detailed report about the future of Health Education England. There is already a body called Health Education England, which has been in existence for some little time. I do not know what its provenance is now, but it is chaired by my close friend, Sir Christopher Edwards, who is a former vice-chancellor of the University of Newcastle upon Tyne. He has chaired a body called Health Education England for a while.

Lord Patel: It is Medical Education England.

Lord Walton of Detchant: Medical Education England, I beg your pardon. Will that body disappear with the development of Health Education England? Do we know what the provenance of that body is going to be or who is going to fund it? What is its constitution going to be and what are its authorities? Will it have the authority to deal with the issues that we raised in this debate about the crucial importance of making certain that commissioning groups, trusts and even private providers offer facilities for education and training.

I shall not go on. I am happy now to withdraw the amendment in my name, but I believe that these issues are so important that they should not await the tabling of another government Bill on education. The Government should introduce something into this Bill to make the future of health education and training clear. I beg leave to withdraw Amendment 2.

Amendment 2 withdrawn.

Baroness Northover: My Lords, given that there is no dinner hour business tonight, we have agreed that instead of breaking now, we will sit without a break until 9 pm and therefore have a slightly earlier night.

Lord Bassam of Brighton: Does that mean that we will finish at nine o'clock or when the debate on an amendment finishes? There is a practice whereby we can carry the debate over; we do not have to complete it by that time. Will the noble Baroness clarify that point?

25 Oct 2011 : Column 727

Baroness Northover: My understanding is that we will stop at nine. If that means that we are part way through the next group of amendments, so be it.

Amendment 3

Moved by Baroness Williams of Crosby

3: Clause 1, page 2, leave out lines 2 to 4 and insert-

"(2) The Secretary of State must for that purpose provide or secure the provision of services according to this Act."

Baroness Williams of Crosby: My Lords, this amendment is tabled in my name and those of the noble Baronesses, Lady Jay and Lady Thornton, and the noble Lord, Lord Patel. It is an absolutely central and crucial amendment. I say right away that I am consumed with envy by the success of the noble Lords, Lord Walton of Detchant and Lord Patel, in getting the Government to table an amendment restoring the duties of the Secretary of State in the area about which they were concerned. I only wish that the same thing might happen as regards my amendment.

It is interesting that even in the course of a long debate about education and training we kept coming back to a consistent ambiguity about exactly what the powers and duties of the Secretary of State are, particularly with regard to the possibility of failure. I am afraid that this set of amendments covers some of the same ground. I will do my very best not to repeat what has already been said. The whole point of Amendment 3 is to restore the wording that occurred in the original 2006 Act to indicate clearly what are the duties and accountability of the Secretary of State. There are two reasons for that. First, many of us wish to ensure that what was beautifully described by the noble Lord, Lord Hennessy, as institutionalised altruism-his description of the National Health Service-should survive and continue. In order to retain the trust of the public who care so much about it we have to make absolutely clear that the Secretary of State's ultimate responsibility is not impaired. There is another reason for that, not just the fact that so many members of the public believe in the NHS; that is, we need to retain their trust while the huge changes that are envisaged to make the National Health Service successful for the future are carried out. We need to do that by indicating that there is no reduction in the ultimate powers of the Secretary of State.

There is also a key constitutional issue. I am sure that the noble Baroness, Lady Jay, will speak to this so there is no point in my going into detail now, but the constitutional issue concerns-to put it in a sentence-exactly who is accountable and responsible for £120 billion of taxpayers' money which is spent on the National Health Service and on health more generally. The remarkable thing about the NHS, which has been mentioned by many Peers, is that it is taxpayer funded, and because it is taxpayer funded it is in many ways much more efficient and effective than many of its competitors in other parts of the world. Therefore, it is incumbent on Members of both Chambers of Parliament to retain accountability to the people of England for this huge sum of money through Parliament and the Cabinet. That means we have to make it clear that that channel passes through the Secretary of State.

25 Oct 2011 : Column 728

The brilliant and concise report of the Constitution Committee chaired by the noble Baroness, Lady Jay, traced its concerns about ambiguities and uncertainties with regard to the duties and powers of the Secretary of State. The noble Baroness will express this matter better than I can, but I simply want to draw the House's attention to the concluding remarks not of the Constitution Committee but of the Government themselves in responding to the Future Forum's concerns about accountability. The Government state:

"As the Future Forum's report highlights, some people are concerned that the Bill could weaken the Government's accountability for the health service".

They go on to say:

"There have even been some fears that the core principles of the NHS could be weakened".

Then, encouragingly, the Government went on to say that,

I am responding to that promise by the Government in the hope that we can as a Committee ensure that that amendment takes place in ways that we regard as satisfactory.

7.45 pm

I wish to say a few words about the problems regarding my amendment. There are clear areas where we cannot be absolutely sure whether the Secretary of State accepts responsibility. One of those was referred to by the noble Lord, Lord Owen, when he talked about the absence of a failure regime. I think that many of us are profoundly concerned that the failure regime will apparently not ultimately be the direct responsibility of the Secretary of State. There are two other areas to which I referred briefly earlier. I will simply remind the Committee of them without mentioning the detail again. The first of those concerns what happens when there is a conflict between the major quangos that have been established-the Commissioning Board and Monitor. Another concerns what happens in a key medical emergency and who is ultimately accountable for the handling of it. I suggest that the public will not accept anybody other than the Secretary of State, with the possible exception of the Prime Minister, to be responsible in the event of a national emergency. However, the Bill indicates over and over again that the position is not totally clear. We are therefore proposing that the wording recommended by the Constitution Committee should be included in the Bill to lay to rest these concerns and ambiguities. However, the noble and learned Lord, Lord Mackay of Clashfern, has indicated in his Amendment 8 another possible wording that would also clear up the ambiguity and obscurity to which I refer. The Committee may indicate which of these amendments it is inclined to support. I, for one, will not stick with the wording in mine if the Committee feels that another amendment more correctly reflects the concern that I have expressed.

However, it is absolutely crucial to see Amendment 3 and, with respect, Amendment 8, in the context of Clause 4, the so-called "autonomy clause"-it is sometimes described as the "hands-off" clause-which limits what the Secretary of State can do to only the most major and significant areas. I believe that that goes much too far in reducing what the Secretary of

25 Oct 2011 : Column 729

State has to do if we are to retain parliamentary and ministerial accountability. My colleague and friend, the noble Lord, Lord Marks of Henley-on-Thames, will speak in detail about the autonomy clause. Therefore, I shall not talk about it further. However, if we are to clear up the difficulties, your Lordships must look not only at these amendments but at the autonomy clause, which I believe has to be taken out of the Bill. I beg to move.

Lord Davies of Stamford: My Lords, I congratulate the noble Baroness, Lady Williams, as she could not possibly have come forward with an amendment that is more pertinent, necessary and urgent in the light of the discussion that we have had already this afternoon on medical training and education. It was clear from that discussion that some extraordinary things are happening as a result of this Bill. One extraordinary thing is that duties are being placed on the Secretary of State without any consideration having been given, or certainly no decision having been made, as to what powers he will need in order to carry out those responsibilities. That is a very serious matter and I will come back to it in a moment.

The second serious matter is becoming clearer and clearer. One of the agendas of this very curious Bill-and one asks oneself what its real meaning and hidden agenda are-is obviously to decouple the Secretary of State steadily from political responsibility for the management of the NHS by creating an insulating barrier and a series of quangos. The Minister said this afternoon, in answer to the case put to him by the noble Lord, Lord Warner, about a repetition of the crisis in jobs for junior doctors that occurred a few years ago, that the Secretary of State would not be able to intervene, or to do anything at all, until he had determined that there was a failure by Health Education England. That means that, if he had Questions in the House, he would simply say, "It's not my fault, Guv. Go and talk to the quango. I don't know anything about it. I haven't yet determined that there is a crisis". That is an extremely unsatisfactory situation.

Earl Howe: My Lords, the noble Lord is caricaturing the position. The Secretary of State, in the case of education and training, would continuously hold Health Education England to account against a set of pre-agreed outcome measures. That is not standing at a distance from what Health Education England does. It is being intimately concerned with what it is doing. I do not want the noble Lord to caricature the Government's position. I understand that he is not happy with the separation of functions, but that is a matter of policy; his policy differs from that of the Government. I do not want him to go away thinking that this is a totally hands-off affair. The Secretary of State will have legal responsibility and accountability for what Health Education England does and that will be manifested through the outcomes framework.

Lord Davies of Stamford: I am very grateful to the Minister. I will just respond to him before giving way to the noble and learned Lord, Lord Mackay. Indeed, I must not caricature the Government's position; believe it or not, I do not want to do so. I want to reveal the

25 Oct 2011 : Column 730

Government's position. I am trying to draw out the Government. We succeeded in doing that this afternoon; perhaps the latest intervention from the Minister is part of that. It was extremely useful, but I think it is clear that the Bill imposes certain duties on the Secretary of State and we have often heard, when it comes to the powers that he has, that it is not quite clear what the position is.

What I am particularly concerned about in the area of health education and training, but also in other areas, is, first, that the Secretary of State will be in a position to answer parliamentary Questions about anything to do, in this case, with health education and training. It might be on planning for numbers, public health or whatever, but there should be no sense in which he will simply say, "That is the responsibility of somebody else. I cannot answer that".

Secondly, I am concerned about the actual powers that the Secretary of State will have to intervene-the ability he will have simply to give directions to one of these quangos, to override it in certain circumstances. The circumstances in which he would be able to override it need to be clearly defined. They should, of course, be defined already so we can look at them at the same time as we look at the new duties. However, they are not defined and we need to know that they will be. I will give way to the noble and learned Lord, Lord Mackay.

Lord Mackay of Clashfern: I did not intend to intervene; I was hoping that the noble Lord might have finished.

Lord Davies of Stamford: That is a very tactful way of putting it. I do not intend to speak for very much longer, but I want to complete my remarks. I simply want to say that any self-respecting person-and I am sure that the Secretary of State is one-would not accept being given duties and responsibilities without being clear about the powers that he or she had to fulfil them. I would not do so. This is a very anomalous position, where we are told that future consideration will be given to what exactly the powers will be, that future Bills will define them. I do not think that is a satisfactory situation at all, if that is the position.

Earl Howe: I made that point in connection with education and training where, as I have said repeatedly, we are still in consultation. As regards the Secretary of State's powers and duties in this Bill, they are very clear; there is no ambiguity about them. We are going to be debating an amendment in the name of my noble and learned friend Lord Mackay, and I do not want to pre-empt that, but that amendment seems to set out very satisfactorily what the Secretary of State's powers are. It draws them together very well.

Lord Davies of Stamford: It seems to me that the text of the amendment put forward by the noble Baroness, Lady Williams, differs from the Government's position in the Bill in that it makes it absolutely clear that the Secretary of State has the duty to intervene. That is stronger wording, and I just wonder why the Government cannot accept it.

25 Oct 2011 : Column 731

Lord Mackay of Clashfern: My Lords, your Lordships' Constitution Committee, under the distinguished chairmanship of the noble Baroness, Lady Jay, has raised in a very succinct and clear manner a doubt that has arisen in relation to the constitutional position of the Secretary of State. The word "provide", that was in the original duty as an alternative to "securing the provision of", has been deleted by the provisions of this Bill. The reason for that is that the Secretary of State has never had an obligation to provide services: he has had an obligation to provide the services or secure their provision. We mentioned earlier, for example, in the very early days of the Secretary of State's initiation of the health service, the position of general practitioners who, on the whole, did not wish to be employed by the Secretary of State, but were willing to provide services. The arrangement was that the Secretary of State, under the statute, had an option.

At times during the existence of the health service, the Secretary of State exercised that option by providing, but in recent years, as I understand it, the only services have been provided by others and the Secretary of State's operative duty has been to secure the provision of the services. I read out earlier, for those of your Lordships who were here then, the original wording in the 1946 Act. The first part of that has been completely retained in the present Bill. That is the provision that has been operated by the courts to control the activities of the Secretary of State in relation to the health service.

The reason that the word "provide" has been left out on this occasion is that the Secretary of State no longer in fact provides. I think that it is wise, if we are trying to modify the statutory structure, to do so in such a way that it conforms, to some extent anyway, with what is actually being done. Therefore, it is right to proceed on the basis that the Secretary of State will secure the provision of the services, as he has been under a duty to do as an alternative to provision from 1946 onwards.

The Constitution Committee studied this, and raised the question of whether that alteration damaged or altered the constitutional position of the Secretary of State. As your Lordships know, the noble Lords, Lord Owen and Lord Hennessy, proposed that that was a matter that should go to a Select Committee. I opposed that, as your Lordships may or may not remember, and ultimately your Lordships decided that we would go along with the ordinary method of dealing with these matters. However, having made that suggestion to your Lordships in the debate, I felt I should do my best to try to solve the problem that the Constitution Committee had raised.

I had a very full consultation with the government advisers-the policy-makers and the lawyers-and I concluded that there was a possible way of solving that ambiguity by making it clear, as it has been, that the Secretary of State's duty is to secure the provision of services. However, the nature of the health service and what has been the position in the past in relation to the responsibility of the Secretary of State have not depended on matters being provided, but it has been understood that the Secretary of State would be answerable in Parliament. Indeed, he is responsible for providing the budget for the health service. I thought

25 Oct 2011 : Column 732

that the way to resolve this ambiguity was to make it absolutely plain in English that all of us can understand that the ultimate responsibility to Parliament would rest with the Secretary of State. This resolves the ambiguity that the Constitution Committee raised.

8 pm

The committee suggested towards the end of its report that one way of dealing with the matter was to go back to the former wording. However, I thought it would be better, if it were possible, to make the position of the Secretary of State absolutely plain-that he should have the ultimate responsibility to Parliament, whatever statutory structures were put in place, for the provision of the service. If you analyse the previous situation, that may not have been the strict legal position-his legal duties enforceable by the court would be to "secure the provision of". My amendment probably enlarges on the original situation with regard to the Secretary of State, once he has himself stopped providing.

In any case, that is not important. It is important that the situation should now be absolutely clear, and I have tried to do that in my Amendment 4. In Amendment 8, as a complement to what I have just said, I have described the powers of the Secretary of State. These are his functions under the Bill, including the mandate and so on, and his intervention powers. I know that the noble Lord, Lord Owen, is anxious about the extent of these powers and whether they are sufficient-whether the bar for intervention by the Secretary of State is set too high. These matters can be raised in relation to the provisions I have listed. Each is an intervention power, and I thought that it would be useful to specify them at the beginning so that in due course, if the noble Lord comes forward with amendments to alter them, and my amendments receive your Lordships' approval, the noble Lord's amendments would reflect back to my Amendment 8, which does not include the intervention powers but is merely a reference to them.

My amendments are intended to deal as fully as I can with the question raised by the Constitution Committee and posed by the noble Lord, Lord Owen. They reflect a proper analysis of the position in the light of the present way that the Secretary of State's powers are exercised-indeed, as they have been exercised for some time. As I said in an earlier intervention, a lot of work was done by Ministers in the previous Government, including the noble Baroness, Lady Jay, at the Department of Health, to move the health service forward under the banner that was set up in 1946. I cherish that banner, and it is clear and concise. I certainly cannot improve on it.

My amendments have a bearing on the amendment of the noble Baroness, Lady Williams, and the noble Baroness, Lady Jay, suggested that it might have been convenient for me to speak.

Lord Greaves: This is the first time that I have spoken in this Committee and I repeat my interest in this Bill as a member of a local authority. The noble and learned Lord's Amendment 4 refers to the "ultimate responsibility" of the Secretary of State and, thereby, accountability to Parliament. At the moment, Members of Parliament and noble Lords can raised detailed

25 Oct 2011 : Column 733

issues relating to the NHS-for example, hospitals in MPs' constituencies that might be under threat of closure or change. Would the noble and learned Lord's amendment allow that practice to continue?

Lord Mackay of Clashfern: In my clear opinion, yes. The idea of ultimate responsibility being with the Secretary of State is that his is not the first line of action under the statute, assuming it all goes through. Indeed, such statutory bodies already exist in the health service. They have responsibilities, but the ultimate responsibility, and that which brings the Secretary of State to account to Parliament, is the one that we want to fix on. It certainly means that he and his Minister in this House must account for the provision. I use that word; although he does not have a legal responsibility to provide, he has a legal responsibility of accountability to Parliament.

Baroness Jay of Paddington: My Lords, I am grateful to the noble Baroness, Lady Williams, and the noble and learned Lord, Lord Mackay of Clashfern, who adequately and precisely précised much of the important part of the Select Committee on the Constitution's report on this part of the Bill, to which other noble Lords have referred.

I still have some difficulty, although I realise that the amendment of the noble and learned Lord, Lord Mackay, is helpful in addressing the problem that we have all been concerned with about ultimate responsibility to Parliament-the accountability and political responsibility, particularly for the enormous budget of the health service. I take all the noble and learned Lord's points about the fact that in real life the Secretary of State is not running clinics or bandaging people in road accidents. However, my concern remains over why, as the Constitution Committee said, the provision clause cannot simply be maintained in the Bill. Such a clause was included in the 2006 Act and in all previous legislation-as were the Secretary of State's responsibilities. I understand that in real life the current words do not necessarily confront the true situation, but his constitutional and legal responsibility are derived through those words.

I apologise to the Committee for not being here for the debate on the previous amendment; I was unavoidably involved at another engagement in the Palace. However, the noble and learned Lord, Lord Mackay of Clashfern, spoke eloquently on Amendment 1 and repeated to the Committee the effective and powerful words in the 1946 Act. They were widely accepted all around the House as being a forceful example of how the principles behind the Act should be invoked. There was discussion on that amendment as to whether the words should be revisited if we were considering some clause of principles in the preamble to the Bill. I took note of the words that the noble and learned Lord referred to from the 1946 Act, including the words embraced by the amendment of the noble Baroness, Lady Williams, because they have been placed in every Act relating to the health service since 1946. That is why I still find it difficult to understand why the Government resist retaining these words-although the noble and learned Lord produced an eloquent argument about real life and maintaining responsibilities to Parliament.

25 Oct 2011 : Column 734

Lord Mackay of Clashfern: Of course the words could be retained, but the question is whether it is right to retain them when, in fact, part of the option has not been in use-it was only ever an option. You should take account of what is actually happening. The passage that I was quoting as indicating what the health service is for was the general passage preceding that. These powers were given to the Secretary of State in order to implement the grand idea that was so well expressed in Section 1 of the 1946 Act. When these powers were given, they were given as options. The Secretary of State did not have to provide, he could do so by securing the provision. That option has always been there. Therefore, there has never been a legal obligation to provide, apart from such an option. When the option that has been chosen in recent years is the second one, it seems only right that the law should proceed on the basis of what actually happens. People in my profession are not unknown for continuing to use expressions from years past, which no longer have real substance to them. I do not think that it is a very good idea for Parliament to do that. However, Parliament may have understood the provision to have been the one whereby the Secretary of State was responsible. Therefore, that is the basis on which I have put forward the Secretary of State's accountability to Parliament.

Baroness Jay of Paddington: I appreciate the noble and learned Lord's intervention, which is very powerful. But the fact remains that as he said in relation to Amendment 1, those original words are both legally enforceable and very clear. That is in a sense our point. Although there is political capacity to put the points that he has put in his new Amendment 4, about making it ultimately responsible to Parliament, as he said himself on Amendment 1, the present wording is clear, legally enforceable and very straightforward.

Two things are legally difficult, apart from the political and constitutional relationship of the Secretary of State to Parliament and his accountability for the budget, which, again, the Constitution Committee drew attention to. This is in paragraph 9 of our report, which I may quote deliberately, because I would be very interested in the Minister and the noble and learned Lord's reaction. Under the existing legislation, the words, which are the words in the amendment of the noble Baroness, Lady Williams, are always read together with the capacity which is in Section 3(1) of the 2006 Act, replaced in this Bill by Clause 10, which enables that provision of services. We can discuss at greater length whether they are adequate in the noble and learned Lord's Amendment 8, and whether they are read together in the courts. Our paragraph 9 states that,

In the leading case, which was R v North and East Devon Health Authority, colloquially known as the Coughlan case, the noble and learned Lord, Lord Woolf, when he was Master of the Rolls, appeared in the Court of Appeal. He ruled that, for example, the Secretary of State in Section 1,

25 Oct 2011 : Column 735

The two are to be read together. You cannot dissociate the responsibility which has been in all of the Acts since 1946 from that duty to provide. In that sense, there is a question to both the Minister and the noble and learned Lord how they would resolve that problem, even if the wording in the noble and learned Lord's Amendment 4 does cover some of the questions about responsibility to Parliament.

Lord Mackay of Clashfern: The answer to the noble Baroness's question is this. The quotation of the noble and learned Lord, Lord Woolf, is from the first part-the duty is to promote a comprehensive health service for the reasons given. He does not-and could not, in the nature of things-refer to provision in the last part of that as a foundation for his judgment in Coughlan, because the provision was made by others. The question was whether it should be charged. So it is only the first part, not the second part. That is why I regard the first part as extremely important as the introduction to the statute-it is enforceable, and we have an example of it actually being enforced in Coughlan.

8.15 pm

Baroness Jay of Paddington: This must not develop into a private discussion about the finer points of our report or the law, in which the noble and learned Lord would certainly be more expert than me. Surely the difference now is that, as it says in the guidance on this Bill,

So the organisations responsible cannot have the legal duty that is embraced by the present Act. Therefore, the legal responsibilities of the Secretary of State are automatically fragmented. The straight line of legal enforceability and responsibility, through the bodies who have rightly-as the noble and learned Lord has said-been delegated over a number of years to other providers, has been broken. That link in the chain has gone.

Lord Davies of Stamford: Before the noble Baroness sits down, I wonder if she could just help me with-

Noble Lords: Oh!

Lord Davies of Stamford: I am trying to make an intervention.

Lord Williamson of Horton: I thought it would be nice to hear another voice, having been here since 3 pm or earlier. I should like to come back to these points and follow on directly from the intervention by the noble Baroness, Lady Jay. The word "provide" has not been used by the Secretary of State in the past; none the less it is there in the long history of this way of handling the operation of the National Health Service. We have continually heard here how in the past it has not been used, and I understand that. However, we are not legislating for the past here; we are legislating for the future. I feel that the retention of the word still has some value if we are looking ahead to the future. In

25 Oct 2011 : Column 736

this Bill we are not making special arrangements so that the Secretary of State can provide, but what will be the consequences of unexpected events which could hit us in the future when it might be sensible for the Secretary of State to provide? I do not think that that should be ruled out and, for that reason, I am attracted to the amendment of the noble Baroness, Lady Williams. It also has the advantage that in law it is highly intelligible to an ordinary person, which I always appreciate.

I now come to the amendment of the noble and learned Lord, Lord Mackay. I fully understand why he has put it forward and why he thinks that it is better to avoid putting something into the law which has not been operational, replacing it with something which is a more accurate description of what the future situation might be. However, I have one question, which I shall put to the Minister and indirectly to the noble and learned Lord, Lord Mackay.

In paragraph (b) in his amendment there is a cross-reference to Amendment 8, which lists the various intervention functions of the Secretary of State. Basically, all these interventions will be necessary because we will have been struck by some terrible problem-a failure by the Care Quality Commission or NICE. There are all sorts of terrible failures in which the Secretary of State has to intervene. However, I am still anxious about whether, under this formulation, the Secretary of State can intervene proactively-that is, without having to wait until disaster has struck in the various forms listed in Amendment 8. I make that point because I think it is of interest and importance to the people who have raised all the questions in relation to what we are now discussing and what was discussed at Second Reading and in relation to the previous amendment, which was not carried but was in fact discussed very widely in the press. Therefore, I am interested to know whether there is a possibility of proactive intervention by the Secretary of State.

Lord Warner: My Lords, I am a bit confused as to whether we are making speeches or asking questions of the noble and learned Lord, Lord Mackay, who seems to have volunteered to conduct seminars for us on many of these issues. In making some points I shall, in a way, be trying to be helpful to the noble and learned Lord. In a sense, the criticism he is receiving is unfair because his amendments bring the legislation up to date in terms of provision, which has been a fiction for many years. However, his proposal has to be read in conjunction with all the other provisions in the Bill, which continue to puzzle me. The Government have sworn that they want to be extremely hands-off, and they have their beautifully drafted Clause 4, which I think has incurred the wrath of the noble Baroness, Lady Williams, and others. Nevertheless, the Bill as a whole gives the Secretary of State quite a lot of powers to intervene, and I shall go through just a few of them.

Clause 12 confers a power to control services commissioned by the Commissioning Board or clinical commissioning groups; Clause 13, the ability to give direction on secure psychiatric services; Clause 14, the power to make arrangements for the supply of blood and human tissue; and Clause 16, regulations to require

25 Oct 2011 : Column 737

clinical commissioning groups to exercise EU health functions. Under Clause 17-even better-the Secretary of State can make regulations that impose standing rules on the Commissioning Board and clinical commissioning groups to arrange for specified treatments and a raft of other things. Clause 20 is the mandation clause, where the Secretary of State can mandate the board before the start of each financial year to specify objectives and the requirements for achieving those objections.

That set of measures looks very un-hands-offish to simple souls such as me. I think that we are getting ourselves into a bit of a state about this, because the Secretary of State seems to have very extensive powers. I admit that some of the public discourse may have been a bit confused by the explanation that the Government's candidate for the chairmanship of the NHS Commissioning Board gave in his interview. He seemed to have a very hands-off picture of what the Secretary of State should do, and I suspect that he may not have read the Bill quite as carefully as your Lordships will have done. We have to look at the amendment of the noble and learned Lord, Lord Mackay, in the context of making the legislation honest but with the Secretary of State retaining huge powers in the Bill to intervene and direct operations.

Lord Newton of Braintree: My Lords, I am once again tempted, in this case by the noble Lord, Lord Warner, with whose views I almost entirely agree. Indeed, I find myself on an alarming number of occasions having quite a lot of fellow feeling with him. I will return to one or two of those points briefly. Being a singularly modest character, these debates are beginning to induce in me a feeling of considerable intellectual inadequacy-which I suspect is not the case with the noble Lord. I constantly feel that I am in the presence of angels dancing on the heads of pins. I hear the noble Baroness, Lady Jay-I hope she will not mind my saying this-saying, "We might as well retain this, because it has always been there", even though we know it has never been the reality. At that point, we stop being angels dancing on the heads of pins, and we start dancing round a totem pole. On the whole, if we are going to dance round a totem pole, I would like a totem pole that reflects what we want to happen, not what was written into a Bill 60 years ago. The noble Baroness thinks I am being unfair.

Baroness Jay of Paddington: I certainly do not think that the noble Lord is being unfair. I suggest to the noble Lord, Lord Newton, that he reflects on what the noble and learned Lord, Lord Mackay of Clashfern, said on Amendment 1, which was precisely to invoke the Act of 60 years ago, and to pray it in aid, as reflecting what could be a useful addition to the principles of this Bill. That is precisely what I am seeking to address.

Lord Newton of Braintree: I strongly supported and continue to support that, which is very reflective in ensuring that we do rest on the original foundations. I never thought I would be a natural Bevanite, but it appears that I have become one, together with a number of others.

25 Oct 2011 : Column 738

That was not quite the point-we were then talking about a preamble. We are now talking about a slightly different provision. I would be entirely happy to see the preamble of the 1946 Act incorporated into this, with-as I said in my speech earlier-perhaps a little tweaking. However, we are now talking about the best way of ensuring and establishing the responsibilities, in the real world, of the Secretary of State. I have another sense of unreality in all of this, born of many years in the Commons. The idea that, whatever this Bill says and however precisely it is worded, the British political system-the House of Commons in particular-would allow the Secretary of State to dispense £120 billion per year of public money without being answerable and accountable to Parliament, is inherently ludicrous. The system would not allow it to happen. I am all in favour of writing that into the Bill if we can find appropriate terms, but in reality that will be the case whatever we have in this Bill.

I agree-and not for the first time-with everything my noble friend Lady Williams said about the importance of making this clear beyond a peradventure. I am quite happy with that.

Baroness Thornton: My Lords, I hesitate to intervene, but the problem we face is that this Bill does precisely what the noble Lord is saying he does not want to happen, which is that the Secretary of State will be properly accountable for £120 billion of taxpayers' money. The Bill puts into statute the ability for the Secretary of State to be challenged, when and if he faces those issues. That is the problem we have.

Lord Newton of Braintree: I hope that noble Lords will forgive me for not sitting down, but it may be obvious to the House that one of my more strenuous activities is moving from the sedentary position to a standing one. I prefer not to do it unnecessarily frequently.

I do not agree with that, but I have also made it clear that I have no objection to this being made a little clearer than it is thought to be in the drafting, which is what the noble Baroness, Lady Williams, is looking for. If I might just go on, I will not do so at great length. The noble Baroness was also very sensible and right to acknowledge that the way forward suggested by my noble and learned friend Lord Mackay was better. At the moment, on balance, it probably is. I am agnostic on that; I am naturally supportive of my noble and learned friend, but these are different ways of achieving an objective that we all share.

I will not say much more except for one point on the autonomy clause and issues that have more recently been raised by the noble Lord, Lord Warner. I have some sympathy with my noble friend Lady Williams on the autonomy clause, which we have yet to get to. I hope the noble Lord, Lord Davies of Stamford, was listening to what the noble Lord, Lord Warner, said: a lot of people who have commented on the apparent or alleged withdrawal of Secretary of State powers in this Bill have not actually read what is in the Bill.

I will give one example. Under the arrangements made by the previous Government for Monitor to be the controller and regulator of foundation trusts, I think I am right in saying that the Secretary of State

25 Oct 2011 : Column 739

had no power to intervene. In this Bill, he does. If Monitor fails to do the right things, the Secretary of State can intervene. That was not the case before.

One thing that I was very iffy about-I do not know how Hansard will deal with "iffy"; perhaps I should say "uncertain"-in the previous Government's record was their setting up of foundation trusts. The rhetoric was that the Secretary of State was abandoning responsibility to foundation trusts and Monitor without any power to control what happened. That situation was introduced by the Labour Government and is corrected by the Bill. We have heard a lot of distortion about what the Bill is intended to do and what it actually does. My concern is to reassure the public about what in my view are unfounded fears. The noble Lord, Lord Warner, has materially helped us in that.

8.30 pm

Lord Davies of Stamford: I listened with great attention to the noble Lord and took on board what he said. Of course, the position of Monitor is not entirely comparable because under the Bill it has vastly more powers.

Lord Newton of Braintree: I am sorry, I was distracted.

Lord Davies of Stamford: Monitor under the Bill will have vastly more powers than it had. As a result, the situation is not entirely comparable. That is my point.

Lord Newton of Braintree: Monitor has extended responsibilities-and, importantly, a much clearer remit to be concerned with the quality of patient services-beyond what it had when its overwhelming focus was on financial matters. I regard that as an improvement. The Secretary of State under the Bill has more powers over Monitor than it had under the original proposals introduced and passed by the Labour Government. I see that the noble Lord, Lord Warner, is nodding his head.

This is a difficult and complex area. We could argue for ever about the best way to deal with it. I say to my noble friend on the Front Bench that I hope that we can find a way forward. I also hope that many noble Lords will recognise that some things said about the Bill are simply not true.

Baroness Hollins: My Lords, I seek clarification. I am very sympathetic to the amendment tabled by the noble Baroness, Lady Williams. To remove a key word without good reason causes anxiety and I am not convinced by the reason given for removing it. Perhaps I could ask the noble and learned Lord, Lord Mackay, to clarify whether his amendment would ensure that the obligations required as a result of the Coughlan case would still be protected.

Lord Mackay of Clashfern: Yes, precisely; I tried to say that when I referred to the 2006 Act. The passage in the 1946 Act on which my noble and learned friend Lord Woolf relied as Master of the Rolls in Coughlan was the first part-that is, the duty to promote a

25 Oct 2011 : Column 740

comprehensive health service, free at the point of need. That was its function. It was in the nature of a preamble: the first part of the first provision of the Act. That was what my noble and learned friend Lord Woolf regarded as enforceable. In relation to Amendment 1, I said that that section had been demonstrated to be enforceable in law, which one could not say for sure about the amendment that the noble Baroness, Lady Thornton, promoted as the first clause of this Bill. Of course, the provision referred to by my noble and learned friend Lord Woolf is maintained in the Bill.

Lord Hennessy of Nympsfield: My Lords, at Second Reading, the noble Earl, Lord Howe, indicated that he wished to put the constitutional position and accountability to Parliament of the Secretary of State beyond doubt. In his letter to your Lordships of 20 October, he repeated his commitment, writing that:

"We are willing to listen and to consider the concerns that have been raised, and make any necessary amendment to put it beyond doubt that the Secretary of State remains responsible and accountable for a comprehensive health service, which we all want to see".

Perhaps the simplest way of achieving this is to sustain the requirements of the National Health Service Act 2006, as the amendment in the name of the noble Baroness, Lady Williams of Crosby, seeks to do.

If successful, this amendment would certainly extend the legislative DNA captured in the pioneering National Health Service Act 1946. However, it can be argued-as it has been by the noble and learned Lord, Lord Mackay of Clashfern, the noble Lord, Lord Warner, and others-that the reality of the Secretary of State's position since the late 1980s requires a reworking of the accountability of the Secretary of State that reflects the fact that successive incumbents have not been direct providers of services for over 20 years. For that reason, a differently crafted amendment, such as the one in the name of the noble and learned Lord, Lord Mackay of Clashfern, would be more fitting.

As the Minister has said, the test is the need for this Bill to be unambiguous in capturing the Secretary of State's core constitutional position and accountabilities at the very apex of the NHS, where policy, administration and money meet. I have great sympathy with the impulses behind the amendment tabled by the noble Baroness, Lady Williams, but I also think that subsections (2)(a) and (2)(b) of the amendment tabled by the noble and learned Lord, Lord Mackay of Clashfern, make the Secretary of State's accountabilities unambiguous. Therefore, I profoundly hope that the Minister will be able to accept the amendment tabled by the noble and learned Lord, Lord Mackay of Clashfern, as Parliament's instrument for genuinely putting the matter beyond doubt.

Lord Harris of Haringey: My Lords, I apologise to the House because at Second Reading I inadvertently failed to declare an interest, as I have now been reminded by the Mirror, that I am an adviser to KPMG. I regret that it had slipped my mind as I have never advised it on anything to do with health or any of its global interests that include advising on health matters. I apologise to the House and I hope I have now corrected the omission.

25 Oct 2011 : Column 741

I rise to speak to the amendment in the name of the noble Baroness, Lady Williams of Crosby, because this is an issue that requires greater clarity, and the debate and discussion that has already taken place in Committee this evening demonstrates why that is so. As my noble friend Lord Warner has reminded us, Professor Malcolm Grant, the newly appointed chair of the national NHS Commissioning Board, has made clear what appears to be the Government's intention with regard to the role of the Secretary of State. I assume that he did so under advice, because you do not take on a role like the chair of the NHS Commissioning Board without extensive discussions with Ministers and civil servants. He must have been briefed on the matter and quite clearly the intention is to separate out the day-to-day responsibility and answerability of the Secretary of State. There has to be some clarity on this point.

The noble Lord, Lord Newton, has pointed out that the Secretary of State de facto will be held to account by Parliament because this is about the way in which a budget of £120 billion is spent and disposed of. However, the reason we need-and the public will expect-clarity is that if the Secretary of State's role is simply to account to Parliament that a sum of money has been passed to the NHS Commissioning Board, that will not be sufficient in holding the Secretary of State to account as to whether that sum of money is the appropriate sum and what the consequences are of not making available appropriate sums of money. That is why I suspect it becomes important.

The noble Lord, Lord Hennessy, has suggested that perhaps the form of words that the noble Baroness has used needs refreshing, because they hark back to the Bill 60 years ago. He suggests that the amendment of the noble and learned Lord, Lord Mackay of Clashfern, may be better suited to the purpose. However, I have some reservations about the wording used by the noble and learned Lord, Lord Mackay, in that he talks about ultimate responsibility. We may have an inkling about what ultimate responsibility means, but I wonder where else in legislation a phrase such as this is used. I defer of course to the noble and learned Lord's far superior knowledge of the law. However, in my limited experience in this House, I have never before come across the words "holds ultimate responsibility to Parliament". It seems a very strange usage and I think that there needs to be greater clarity and understanding about what it means. That is why it might be better to revert to the wording chosen by the noble Baroness, Lady Williams. It is tried and tested and at least we understand it.

We also have to recognise that the noble and learned Lord's amendments helpfully set out the intervention powers and the circumstances in which they will be part of the Secretary of State's duties, which is all very well. However, intervention powers, by their very nature, occur after the event. Something has already gone wrong.

In our earlier debate-I hesitate to hark back to it-about the role of Health Education England, the Minister told us that the Secretary of State would continuously hold Health Education England to account. However, that is different from having responsibility.

25 Oct 2011 : Column 742

Again, we need to be clear on who is answering for that. How will that be done? The fact that the Minister had to stand up and tell us that there are intervention powers, but that of course on a day-to-day basis he would be holding Health Education England to account, suggests that the current form of words in the Bill is simply not accurate.

The final test that your Lordships need to consider is: what do the public expect? The public's expectation is that government is responsible for what happens in our health service; and unless there are locally elected officials who are responsible for what happens at a local level, they will expect their elected Government to be responsible, and that means the Secretary of State.

Lord Owen: My Lords, this has been a fascinating debate and it has certainly taken the arguments further. I do not think that anybody expects that we will vote tonight, and I think that we will come back to this at Report.

There are merits in both of the cases put forward. In some respects-we can argue about the word "ultimate"-the idea of responsibility to Parliament has merit. It also tallies with the expression used by the noble Lord, Lord Newton. When people realise what the chairman of this largest quango thinks he will do, there will be uproar. Unfortunately, we have not yet been able to read those things-we know about them through reports, but we have not yet read them. It is very clear that the chairman-designate takes the view that he is given the money, he is given the mandate-a three-year mandate which is of course subject to change-and he then decides. It is pretty clear that some people think that that is a very good idea. I think that the noble Lord, Lord Warner, is pretty close to that position.

Lord Warner: I cannot resist responding to that. I do not accept that position. I was trying to say that what the putative chairman is saying seems to be in conflict with what is provided for in the legislation, which requires the Secretary of State to produce a mandate before the start of each financial year. That is a very clear marching orders provision in the hands of the Secretary of State.

8.45 pm

Lord Owen: When we look at what has been said, we will have a better idea. As the Bill unfolds in all its complexity, we are all part of the education process. We saw that in the earlier debate about education. It is not satisfactory for Parliament to rest powers against the wording of the legislation; that is why we worry about words. Words matter here; we cannot get away from that. That is why I come back to the provisions in the admitted interventions-"failure", "emergency"-which are extreme words, and are deliberately designed to be. We have to look at that.

Next Section Back to Table of Contents Lords Hansard Home Page