Health and Social Care Bill: follow-up - Constitution Committee Contents

Health and Social Care Bill

1.  The Constitution Committee reported on the Health and Social Care Bill in September, in advance of its second reading in the House.[1] In that report we concluded that it was not clear whether the existing structures of political and legal accountability with regard to the NHS would continue to operate as they have done hitherto if the Bill were enacted in its current form. We recommended that the House carefully consider whether the Bill's provisions posed an undue risk either that individual ministerial responsibility to Parliament would be diluted or that legal accountability to the courts would be fragmented, or both. The Government responded on 10 October setting out their views. The correspondence following our earlier report is appended to this report.

2.  As the Bill progressed through its committee stage in the House, it became clear that our concerns were shared by a number of Peers on all sides of the House. The Minister, Earl Howe, responding to a number of amendments tabled at committee stage which raised issues similar to those addressed in our report stated:

"I believe that ... it would be profitable for me to engage with noble Lords in all parts of the House, both personally and with the help of my officials, between now and Report to try to reach consensus on these important matters ... My concern is only that it is an inclusive process involving Peers from all sides of the House, and that will include listening to the views of the Constitution Committee should it choose to continue its valuable role."[2]

3.  This report forms our response to that invitation. Following informal discussions between officials on both sides,[3] the Minister came and spoke to the Committee in private on Wednesday 14 December. We are grateful to the Minister and his officials for giving their time to speak to us.

4.  The discussions between our officials and those of the Department of Health were based on five agreed criteria, as follows:

  •   The Bill is not intended to reduce the Secretary of State's overall accountability in respect of the NHS in England, even though it will change the way that such accountability works.
  •   There is a need for the Bill to be clear, so that the House and the public alike can understand exactly the accountabilities and responsibilities of the Secretary of State.
  •   The Bill should support the policy intention that ministers should not be involved in day-to-day operational management.
  •   The Bill should reflect the reality of what ministers actually do in practice.
  •   The Bill is not intended to weaken the legal protection afforded to individuals in respect of health services.

5.  Judged against these criteria, we believe that the amendments to the Bill which we recommend below[4] are a reasonable means to address the concerns raised both in our earlier report and in the Government's response.[5]

Clause 1

6.  Clause 1 of the Bill substitutes for section 1 of the NHS Act 2006 a new section under which the Secretary of State must "secure that services are provided" but which no longer includes a duty on the Secretary of State to provide services. We were concerned that this risked reducing the Secretary of State's accountability to Parliament and asked why the wording contained in the 2006 Act could not be retained. The Government responded that their policy was to avoid "political micro-management" of the health service and that "By explicitly removing the Secretary of State's duty to provide, legislation will better reflect what has been the reality of the NHS for years." That response also argued that this would not "reduce the overall responsibility that the Secretary of State has for the NHS."[6]

7.  We acknowledge that the Government's policy is to avoid micro-management, but consider that it should be made clear in the Bill that this policy change will not result in any reduction of the Secretary of State's accountability to Parliament. We note that Lord Mackay of Clashfern tabled an amendment to the Bill at committee stage which stated that "the Secretary of State retains ultimate responsibility to Parliament for the provision of the health service in England".[7] We are firmly of the view that "ministerial responsibility" is the appropriate usage. The concept of ministerial responsibility is well understood, whereas there is no constitutional basis for distinguishing between ultimate and non-ultimate variants of ministerial responsibility to Parliament.[8]

8.  We therefore recommend that the Bill be amended to include a new subsection 1(3) in the 2006 Act as follows:

Page 2, line 4, at end insert—

"( )  The Secretary of State retains ministerial responsibility to Parliament for the provision of the health service in England."

Clause 4

9.  Clause 4 of the Bill inserts a new section 1C into the 2006 Act imposing a new duty on the Secretary of State to promote autonomy. We argued in our earlier report that the provision underscores the extent to which the chain of constitutional responsibility as regards the NHS risks being severed by the Bill. Concerns were also expressed in the House that this autonomy duty would significantly dilute ministerial responsibility to Parliament. The Minister stated in the House that the autonomy duty must be subsidiary to the minister's duties under section 1 and that he welcomed the prospect of further discussions as to how to put this matter beyond doubt.[9] We consider that the Bill should explicitly state that new section 1C is "subject to" the relevant provisions of section 1 of the 2006 Act.

10.  We further consider that clause 4 should be amended so that it provides for a duty on the Secretary of State to have regard to the desirability of securing that other health bodies exercise their functions as they consider appropriate, rather than a requirement that he act with a view to securing their autonomy. An equivalent amendment would also need to be made to new section 13F, part of clause 20, which imposes a duty to promote autonomy on the NHS Commissioning Board.

11.  From a constitutional point of view these amendments would help to ensure that the autonomy duty does not have the effect of reducing ministerial responsibility to Parliament. We therefore recommend that clauses 4 and 20 of the Bill be amended as follows:

Page 3, leave out lines 4 to 6 and insert—

"Subject to sections 1(1) to 1(3), and so far as is consistent with the interests of the health service, the Secretary of State must, in exercising functions in relation to that service, have regard to the desirability of securing—"

Page 17, line 37, leave out "act with a view to" and insert "have regard to the desirability of".

Clause 10

12.  Clause 10 removes from the Secretary of State the duty (currently contained in section 3 of the NHS Act 2006) to provide certain health services and places that duty instead on clinical commissioning groups (CCGs). Case law makes it clear that, as the law currently stands, the section 1 duty to promote a comprehensive health service must be read alongside the section 3 duty to provide certain services. Thus, if an individual wishes to challenge a decision to withdraw, relocate or ration a certain health service, a court reviewing the legality or reasonableness of that decision would consider the matter in the light of the overarching duty in section 1 to promote a comprehensive health service; such was the force of the leading Court of Appeal judgment in Coughlan.[10] As the Bill de-couples the section 1 and section 3 duties (by placing them on different bodies) it is difficult to see how they could in the future be read alongside one another in the way in which they have in the past. We thus expressed concern in our earlier report that this could have the unintended consequence (contrary to the fifth criterion cited above) of weakening the legal protection afforded to the individual.

13.  The Government did not agree with this analysis, stating in their response:

"Whilst it is true CCGs do not have a duty to promote the comprehensive health service in the Bill, this does not mean they can simply disregard it. It is clear from the Bill that a comprehensive health service must continue to be promoted in England. It is also clear that the key specific duties and powers in the 2006 Act (as amended by the Bill), including section 3, have been imposed or conferred so that such a service can be promoted. This means that CCGs must have regard to the duty of the Secretary of State to promote a comprehensive health service."[11]

14.  We remain unconvinced. If the matter is already implicit in the Bill, why should it not be made explicit (especially considering the clarity criterion noted above)? We note that clause 59 of the Bill (setting out the general duties of Monitor[12]) states that Monitor must exercise its functions "in a manner consistent with the performance by the Secretary of State of the duty under section 1(1)". This wording could be adapted to apply equally to CCGs in exercising their functions under section 3 of the 2006 Act. We therefore recommend that clause 10 of the Bill be amended as follows:

Page 6, line 12, at end insert—

"( )  A clinical commissioning group must exercise its functions under this section in a manner consistent with the performance by the Secretary of State of the duty under section 1(1) (promotion of comprehensive health service)."

15.  We believe that these proposed amendments will together address the concerns which we raised in our earlier report about the Secretary of State's political and legal accountability for the health service in England and we commend them to the House.

1   18th Report (2010-12) (HL Paper 197).  Back

2   HL Deb, 2 November 2011, cols 1248-9.  Back

3   A conference call was held with Department of Health officials, our Legal Advisers and Clerk on Monday 28 November, which was followed by a meeting of those individuals and First Parliamentary Counsel on Tuesday 6 December.  Back

4   The page and line references given in the recommended amendments reflect those in HL Bill 92 (the Bill as introduced into the House of Lords). These references may need to be updated once the Bill as amended in Committee is published.  Back

5   Letter from Earl Howe to Baroness Jay, 10 October 2011.  Back

6   Ibid.  Back

7   Amendment 4.  Back

8   Appendix 1 sets out in detail the meaning and contours of individual ministerial responsibility both generally and as it applies to this Bill.  Back

9   See HL Deb, 9 November, col 270.  Back

10   R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213, cited in our earlier report at paragraphs 9 and 13.  Back

11   Letter from Earl Howe to Baroness Jay, 10 October 2011.  Back

12   The independent regulator of NHS Foundation Trusts. Back

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