Health and Social Care
Bill
1. The Constitution Committee is appointed "to
examine the constitutional implications of all public Bills coming
before the House; and to keep under review the operation of the
constitution". In carrying out the former function, we endeavour
to identify questions of principle that arise from proposed legislation
and which affect a principal part of the constitution.
2. This report draws to the attention of the
House one aspect of the Health and Social Care Bill. We may in
due course additionally report on further aspects of the Bill.
3. The National Health Service (NHS) in England
is governed by the National Health Service Act 2006 (NHS Act 2006).
This Act was a consolidating measure: the provisions with which
we are here concerned long pre-date it and indeed, in most instances,
go back to the founding of the NHS in 1946. The Health and Social
Care Bill seeks substantially to amend the NHS Act 2006 in numerous
respects.
4. In this report we focus on one of the key
amendments which the Bill seeks to make. We are concerned that
the Bill, if enacted in its current form, may risk diluting the
Government's constitutional responsibilities with regard to the
NHS. We note that at report stage in the House of Commons
the Minister undertook, if it proved necessary, "to offer
clarification or make amendments to put beyond legal doubt the
fact that the Secretary of State remains responsible and accountable
for the comprehensive health service that we all want to see".[1]
5. For the reasons given below, we consider
that it may well be necessary to amend the Bill in order to put
this matter "beyond legal doubt".
6. In order to explain our concerns, we set out
first the current law, then the changes which the Bill seeks to
make, and finally our reasons for reporting these changes to the
House.
7. The NHS Act 2006, section 1 provides as follows:
(1) The Secretary of State must continue the
promotion in England of a comprehensive health service designed
to secure improvement—
(a) in the physical and mental health of the
people of England, and
(b) in the prevention, diagnosis and treatment
of illness.
(2) The Secretary of State must for that purpose
provide or secure the provision of services in accordance with
this Act.
(3) The services so provided must be free of
charge except in so far as the making and recovery of charges
is expressly provided for by or under any enactment, whenever
passed.
8. The NHS Act 2006, section 3(1) provides as
follows:
(1) The Secretary of State must provide throughout
England, to such extent as he considers necessary to meet all
reasonable requirements—
(a) hospital accommodation,
(b) other accommodation for the purpose of any
service provided under this Act,
(c) medical, dental, ophthalmic, nursing and
ambulance services,
(d) such other services or facilities for the
care of pregnant women, women who are breastfeeding and young
children as he considers are appropriate as part of the health
service,
(e) such other services or facilities for the
prevention of illness, the care of persons suffering from illness
and the after-care of persons who have suffered from illness as
he considers are appropriate as part of the health service,
(f) such other services or facilities as are
required for the diagnosis and treatment of illness.
9. The courts have made it clear that the Secretary
of State's duties in these sections are to be read together. In
the leading case of R v North and East Devon Health Authority,
ex parte Coughlan, Lord Woolf MR in the Court of Appeal ruled,
for example, that the Secretary of State (in section 1) "has
the duty to continue to promote a comprehensive free health service
and he must never, in making a decision under section 3, disregard
that duty …"[2][3]
10. In practice the Secretary of State delegates
many of his functions to primary care trusts (PCTs): see, for
example, NHS Act 2006, section 7. However, this does not alter
the legal position that, as the law stands, it is the Secretary
of State who is constitutionally responsible for NHS provision
in England.[4]
11. Clause 1 of the current Bill substitutes
for section 1 of the NHS Act 2006 a new section. The new section
would provide as follows:
(1) The Secretary of State must continue the
promotion in England of a comprehensive health service designed
to secure improvement—
(a) in the physical and mental health of the
people of England, and
(b) in the prevention, diagnosis and treatment
of illness.
(2) For that purpose, the Secretary of State
must exercise the functions conferred by this Act so as to secure
that services are provided in accordance with this Act.
(3) The services provided as part of the health
service in England must be free of charge except in so far as
the making and recovery of charges is expressly provided for by
or under any enactment, whenever passed.
12. Clause 10 of the Bill amends section 3(1)
of the NHS Act 2006. As amended, section 3(1) would provide as
follows:
(1) A clinical commissioning group [CCG] must
arrange for the provision of the following to such extent as it
considers necessary to meet the reasonable requirements of the
persons for whom it has responsibility—
(a) hospital accommodation,
(b) other accommodation for the purpose of any
service provided under this Act,
(c) medical, dental, ophthalmic, nursing and
ambulance services,
(d) such other services or facilities for the
care of pregnant women, women who are breastfeeding and young
children as the [CCG] considers are appropriate as part of the
health service,
(e) such other services or facilities for the
prevention of illness, the care of persons suffering from illness
and the after-care of persons who have suffered from illness as
the [CCG] considers are appropriate as part of the health service,
(f) such other services or facilities as are
required for the diagnosis and treatment of illness.
13. Three things are apparent from these clauses.
First, the duty currently placed on the Secretary of State (in
the NHS Act 2006, section 1(2)) to "provide or secure the
provision of services in accordance with this Act" is replaced
with a duty on him to exercise his functions "so as to secure
that services are provided in accordance with this Act".
Secondly, the duty currently imposed on the Secretary of State
under section 3(1) of the NHS Act 2006 is removed from him and
is placed instead on clinical commissioning groups. Thirdly, it
follows that the chain of duties and responsibilities that the
Court of Appeal in Coughlan ruled must be read as a whole
would be broken. Under the Bill the statutory duties in section
1 will remain with the Secretary of State, whereas the statutory
duties in section 3 will be imposed on CCGs.
14. Moreover, in interpreting the extent of the
change brought about by these provisions, consideration must be
given to clause 4 of the Bill, which would insert a new section
1C into the 2006 Act. This clause imposes a new duty on the Secretary
of State to promote autonomy. Thus, the Secretary of State "must,
so far as is consistent with the interests of the health service,
act with a view to securing (a) that any other person exercising
functions in relation to the health service or providing services
for its purposes is free to exercise those functions or provide
those services in the manner that it considers most appropriate;
and (b) that unnecessary burdens are not imposed on any such person".
This provision underscores the extent to which the chain of constitutional
responsibility as regards the NHS is severed.
15. The Government have stated that it is not
their intention to dilute the Secretary of State's constitutional
responsibilities with regard to the NHS. In its response to the
recommendations of the NHS Future Forum, the Department of Health
stated the following:[5]
2.6 As the Future Forum's report highlights,
some people are concerned that the Bill could weaken the Government's
accountability for the health service. As a consequence of establishing
a dedicated NHS Commissioning Board, the Bill currently removes
the Secretary of State's current direct duty to "provide
or secure the provision of services", and this has been interpreted
by some as reducing Ministers' responsibility. There have even
been some fears that the core principles of the NHS could be weakened.
2.7 This has not been our intention. We want
to reinforce the principles and values of the NHS and strengthen
overall Ministerial accountability. However, the Forum is right
to point out that the current drafting of the Bill is not clear
enough, and we will amend it.
2.8 Our policy is that the Secretary of State
will be responsible—as now—for promoting a comprehensive
health service. The wording of section 1(1) of the 2006 NHS Act
will remain unchanged in legislation, as it has since the founding
NHS Act of 1946. We will amend the Bill to make this clear.
2.9 We will also make clear that the Secretary
of State will retain ultimate accountability for securing the
provision of services, though rather than securing services directly,
the Secretary of State will be exercising his duty in future through
his relationship with the NHS bodies to be established through
the Bill, for example the NHS Commissioning Board by way of the
"mandate".
2.10 We will make clear that Ministers are responsible,
not for direct operational management, but for overseeing and
holding to account the national bodies—in particular, the
NHS Commissioning Board and the regulators—backed by extensive
powers of intervention in the event of significant failure.
16. The Department of Health document, Response
to Stakeholder Questions on the Future Role and Functions of the
Secretary of State, (dated August 2011)[6]
states that the re-wording of section 1(2) "does not in any
way undermine Secretary of State's accountability or responsibility
for the health service which remains unchanged since the founding
of the NHS" [sic].[7]
However, the Explanatory Notes to the Bill state that the amendment
to section 1(2) "reflects the fact that 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".[8] That
is to say: it is the NHS Commissioning Board and the CCGs that
will be responsible for commissioning and providing services,
not the Secretary of State.
17. The Government have argued that the Bill
"strengthens the overall accountability of the Secretary
of State for Health",[9]
citing clauses 49 and 50 as support for this view. Under clause
49 the Secretary of State must "keep under review the effectiveness"
of a range of NHS bodies. These include the NHS Commissioning
Board but do not include CCGs. Under clause 50 the Secretary of
State must publish an annual report on the performance of the
health service in England. While these clauses will make a
modest contribution towards accountability, the House will wish
carefully to consider whether they are sufficient.
18. The combination of these changes[10]
matters, constitutionally, because it is not clear whether
the existing structures of political and legal accountability
with regard to the NHS will continue to operate as they have done
hitherto if the Bill is passed in its current form. As such, the
House will wish carefully to consider whether these changes pose
an undue risk either that individual ministerial responsibility
to Parliament will be diluted or that legal accountability to
the courts will be fragmented.
19. Moreover, it is not self-evident that
the proposed changes are a necessary component of the Government's
reform package. Given the uncertainty as to the interpretation
of the provisions proposed in the Bill, could not the relevant
wording contained in the 2006 Act be retained?
1 HC Deb 7 September 2011 col 404 (Mr Paul Burstow,
Minister of State, Department of Health). Back
2
[2001] QB 213. Back
3
This case proceeded under the National Health Service Act 1977,
which was itself a consolidating measure. The wording is slightly
changed but the core duties have thus far remained the same. Back
4
To emphasise: the point is not that the Secretary of State and
the Department of Health currently provide healthcare services
that, under the Bill, would be provided instead by clinical commissioning
groups. The point is that the Secretary of State is constitutionally
and legally responsible for the provision of healthcare under
the NHS Act 2006. Back
5
Cm 8113, June 2011. Back
6
See http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/documents/digitalasset/dh_129483.pdf.
Back
7
Ibid, para 6. Back
8
Explanatory Notes, para 67. Back
9
See http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/documents/digitalasset/dh_129483.pdf,
para 3. Back
10
The changes to section 1(2) and to section 3(1), and the new section
1C. Back
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