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We will not come to a view on the Secretary of State's powers until we have finished Committee, looked at the whole Bill and have a feeling for what is to be changed by the Government. We will then come back to it. Personally, I hope that the Select Committee on the Constitution itself comes back to have a look at

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this. The committee has some very distinguished members. I would like to reserve judgment. The noble and learned Lord, Lord Mackay, who was one of our most distinguished Lord Chancellors, has made a very valuable contribution. Some of his explanations may even be of use in future law courts. I certainly stand by the amendment produced by the noble Baroness, Lady Williams, because it is tried and trusted, but I have made it clear that I would not object to wording put into this Bill at an appropriate stage which states that the Secretary of State is not micromanaging the National Health Service. Unfortunately, there is a public perception that comes to the Secretary of State for every damn thing under-I think I have made myself clear. We do not want that to happen and we know that it should not happen. We mouth the words of a decentralised health service without being willing to admit that there are limits to what people can be held accountable for. However, I do not think that failure and emergency are the parameters. They have to be lowered if we are going to make sense of this.

Lord Newton of Braintree: My Lords, before the noble Lord sits down, to use the classic formula, perhaps I may take the opportunity to say that in a series of debates in which he and I have not always seen eye to eye, I agree with pretty much every word he has just said. In particular, I do not think that we should return to this until we have been through the rest of the Bill and seen where we are on things such as the powers of the Secretary of State, the wording of those powers and the like. The noble Lord has made a very sensible point by saying that we can then form a better judgment about what is required in this area.

Lord Mawhinney: My Lords, I want to associate my initial remarks entirely with what my noble friend Lord Newton has just said. The noble Lord, Lord Owen, has given the Committee good advice. I have sat through the whole of today's debate, as have most of us, and it has been interesting to note how much we have learnt about this Bill simply by talking to and listening to each other. I share the view of the noble Lord, Lord Owen, that the learning process has only just begun and is not nearly complete, so it would be foolish to rush to judgments.

I would say to my noble and learned friend Lord Mackay that he knows there is no one I hold in higher regard than him. The formulation in his amendment is extremely helpful because it encapsulates the legal realities. So if I had to judge on the basis of the legal realities, I think I would favour my noble and learned friend's amendment.

On the other hand, I should say to the noble Baroness, Lady Williams, that the strength of her amendment lies in the fact that it has 60 to 70 years of continuity. If we are looking for the constitutionally more helpful amendment, it may be that of the noble Baroness. I say that also conscious of the fact that out there, as we keep telling each other, there is a degree of nervousness about this Bill. Some of it is well founded and some of it is scaremongering, a word I have used before. But there is a sense of unease. The continuity of 70 years of using the same language might help to address the issue. That is why I say that constitutionally

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I lean towards the noble Baroness, Lady Williams, while legally I lean towards my noble and learned friend, and I do not want to make a choice at the moment.

Maybe it is partially because the noble Lord, Lord Newton, and I spent so many years in the other place but, as he said, I too believe that the reality is that out there £128 billion is really rather a lot of money. The idea that when somebody threatens to close the Peterborough Hospital my former constituents are going to settle for the chairman of a quango, no matter how illustrious, experienced or wonderful he is-I do not know the gentleman but I am sure that he is all of those and a whole lot more-is just not in the real world. I tell you that as somebody who can still fairly clearly remember what it was like to be a Member of Parliament. Indeed, I can remember fairly clearly what it was like to be the Health Minister and it is still not in the real world.

The noble Lord, Lord Warner-I promise not to keep doing this-was very helpful to this Committee because he pointed out the Secretary of State's powers. Unusually, I am not sure my noble friend Lord Newton was quite right when he used Monitor as an example. He was right in the technical sense that the previous legislation set up Monitor apparently free. As my noble friend said that I thought about all the newspaper stories I have read recently about how PFI is falling apart and the mounting debt Monitor is having to deal with because the PFI arrangements for foundation trust hospitals were simply not in the real world. The idea that the Secretary of State for Health is not finding some way to intervene with Monitor-he would have to if Monitor wants more money to offset that debt-shows that the reality of what happens on the ground is extremely important.

I say to my noble friend the Minister that there is one other aspect of this on which, as a simple Belfast boy, I am confused. The NHS Commissioning Board has legal status. As the noble Lord, Lord Warner, reminded us, the Secretary of State gives it a mandate and then it has a legal status. Does that mean that the Secretary of State's lawyers have to relate to the NHS Commissioning Board's lawyers if the Secretary of State wants to have some involvement during the course of the year-even if it is only in the context that the noble Lord, Lord Owen, does not like of emergency or failure? We need to have a much clearer grasp of the practical realities of the consequences of this Bill. Whatever the intellectual framework and the ideas that coherently come together to provide esoteric new arrangements, this Bill has to work in the real world. This Committee needs to be encouraged by my noble friend to believe that the Secretary of State is going to be at the heart of making this Bill work in practice.

Baroness Warwick of Undercliffe: My Lords, I had not intended to speak but I feel quite anxious that we are contemplating the prospect of not producing an amendment of the kind the Minister suggested he would be willing to accept. I understand the points made by other Peers. I am really conscious of the anxiety that has been expressed in the huge amount of representations, letters, e-mails and so on that we have had.

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A point about which I felt strongly at Second Reading is that our own Constitution Committee has indicated anxieties that I think are shared by a large number of people. We need to indicate we are going to take seriously the views of that committee.

Many of the anxieties expressed may either have been caused by scaremongering or become totemic, but they none the less exist. Some of them seem not to be so ill founded. Other speakers have already referred to the fact that, as the Explanatory Notes state, the commissioning and provision of services will no longer be delegated by the Secretary of State, but will be directly conferred on the organisations responsible. As the Select Committee indicates, the Secretary of State must secure that,

There seem to be at least grounds there for anxiety that the Secretary of State may be seeking to offload responsibility.

I hope that, however long it takes us during these discussions-after some of the discussion on the previous amendment, I became even more anxious about the role of the Secretary of State-we will be able to find a form of words that satisfies the anxieties expressed. I do not know whether that wording should take the form of the amendment of the noble Baroness, Lady Williams, or that of the noble and learned Lord, Lord Mackay, but we should endeavour to allay that anxiety, because it is undermining an awful lot of interest in and support for other parts of the Bill.

Baroness Cumberlege: My Lords, this is the first time that I have entered this Committee debate, so I declare an interest as the executive director of Cumberlege Connections, which is a training company.

I am very grateful to the noble Lord, Lord Owen, for mentioning micromanagement, because a lot of our debate stretches beyond just the accountability of the Secretary of State to the organisations that are going to be set up that will have devolved powers. I can understand some of the concern felt about financial probity and the money that is going to the National Health Service, £80 billion of which will go to the NHS Commissioning Board. I shall try to provide a little comfort to the noble Baroness, Lady Williams, and the noble Lord, Lord Harris, who seemed to imply

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that this money was going to be shelled out by the Secretary of State and he was then going to disappear, leaving no accountability. However, paragraph 14(1) of Schedule 1 states:

"The Secretary of State may require the Board to provide the Secretary of State with such information as the Secretary of State considers it necessary to have for the purposes of the functions of the Secretary of State in relation to the health service".

Paragraph 14(2) states:

"The information must be provided in such form, and at such time or within such period, as the Secretary of State may require".

There is clearly an opportunity here for intervention and for the Secretary of State to make sure that probity is being exercised.

Lord Harris of Haringey: But surely that simply states that there shall be a requirement to provide information. It does not then give the Secretary of State a power to intervene. All it means is that one has an informed Secretary of State, which is tremendously helpful, but not a Secretary of State who is able to say, "Well, this is clearly not in the public interest in terms of the way that these moneys have been disbursed".

Baroness Cumberlege: That is true up to a point, but can you imagine, when the Secretary of State receives that information, that he will do nothing about it? That would be extremely unlikely.

The other thing I would like to say is about the comments of the noble Lord, Lord Hennessy, on ambiguity and clarity. It seems quite strange to put a word into this Bill that is archaic and no longer used. It no longer serves a purpose, in that what is being done at the moment does not relate to the Secretary of State providing anything. If we are going to be really clear about legislation, surely we want to make sure that the words used are relevant to today. Including the word provide, which is no longer being used-the Secretary of State has powers to provide, but he does not actually provide services-seems a pretty irrelevant and an archaic way of producing legislation. I very strongly support the noble and learned Lord, Lord Mackay of Clashfern.

Baroness Northover: My Lords, as agreed earlier, it now being nine o'clock, I beg to move that the House be now resumed.

House resumed.

House adjourned at 9 pm.

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