Health and Social Care
1. The Constitution Committee reported on the
Health and Social Care Bill in September, in advance of its second
reading in the House.
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
"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."
3. This report forms our response to that invitation.
Following informal discussions between officials on both sides,
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,
- 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
- The Bill should support the policy intention
that ministers should not be involved in day-to-day operational
- 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
are a reasonable means to address the concerns raised both in
our earlier report and in the Government's response.
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
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".
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. 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
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.
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".
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
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."
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)
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
HL Deb, 2 November 2011, cols 1248-9. Back
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
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
Letter from Earl Howe to Baroness Jay, 10 October 2011. Back
Amendment 4. Back
Appendix 1 sets out in detail the meaning and contours of individual
ministerial responsibility both generally and as it applies to
this Bill. Back
See HL Deb, 9 November, col 270. Back
R v North and East Devon Health Authority, ex parte Coughlan
 QB 213, cited in our earlier report at paragraphs 9 and
Letter from Earl Howe to Baroness Jay, 10 October 2011. Back
The independent regulator of NHS Foundation Trusts. Back