Health & Social Care Bill
House of Lords Committee stage
Briefing Note 3
Peers should vote for Amendment 3 on Wednesday 2nd November in order to stop the government abolishing the Secretary of State’s duty to provide the health service in England and to protect a comprehensive health service for England
We are at a critical moment in the debate over the government’s wish to abolish the duty of the Secretary of State to provide the health service in England.
We are concerned that the House of Lords should not accept abolition of this duty when it continues its debate on Clause 1 of the Health and Social Care Bill on Wednesday 2nd November 2011. To do so would undermine a comprehensive service because it would facilitate selection of patients and services by commissioners and providers.
There are four positions: (see the 38 degrees website for more details)
(1) The government wants to abolish the duty. If Clause 1 is allowed to stand this will happen (see Appendix).
(2) Amendment 5, tabled by Labour and some cross benchers, is a minor amendment to Clause 1. It will not prevent abolition of the duty.
(3) A Liberal Democrat/Labour/cross-bench amendment would preserve the duty (Amendment 3), as requested by the Constitution Committee. It would basically keep the same words that have been in place since the 1946 National Health Service Act. Crucially the amendment acts as a bridge between the duty to promote in section 1(1) and the duty to provide in section 3(1) of the National Health Service Act 2006 Act. It would also lay the necessary foundation for further essential changes to the Bill.
(4) Lord Mackay of Clashfern has tabled two amendments that are reported to have the support of government and some Liberal Democrat and cross-bench peers.
These amendments would have the effect of abolishing the Secretary of State’s duty to provide the health service in England, and would do two other things.
First, the amendments basically restate the government’s Clause, and add particular reference to the Secretary of State’s power to intervene when:
• there are failures by the NHS Commissioning Board, NICE, Monitor, the Care Quality Commission and the Information Centre;
• in an emergency, services are not being provided; or
• there are breaches of the duty to cooperate, especially by Monitor and the Care Quality Commission.
This is not the same as having a legal duty to provide the health service in England.
Second, the MacKay amendment declares that the Secretary of State retains ultimate responsibility to Parliament for the provision of the health service in England. This statement was described by Lord Harris of Haringey in the debate last week as “very strange” language, not found in Acts of Parliament. It is a political, rather than a legal statement, and may not be acceptable to Parliamentary drafters.
Peers committed to a comprehensive, universal NHS throughout England should support Amendment 3 in the first instance. This amendment has been tabled by Liberal Democrat Baroness Williams of Crosby, cross bencher Lord Patel, Labour’s frontbench spokesperson Baroness Thornton and Constitution Committee Chair Baroness Jay of Paddington.
Allyson Pollock, professor of public health research and policy, Queen Mary, University of London; David Price, senior research fellow, Queen Mary, University of London; Peter Roderick, public interest lawyer; and Tim Treuherz, retired head of legal services, Vale of White Horse District Council
28th October 2011
Appendix
Clause 1
1 Secretary of State’s duty to promote comprehensive health service
For section 1 of the National Health Service Act 2006 (Secretary of State’s duty to promote health service) substitute –
“1 Secretary of State’s duty to promote comprehensive health service
(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.”
Amendment 3
BARONESS WILLIAMS OF CROSBY, LORD PATEL, BARONESS THORNTON, BARONESS JAY OF PADDINGTON
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.”
Amendments 4 and 8
[4] LORD MACKAY OF CLASHFERN
Page 2, leave out lines 2 to 4 and insert—
“(2) For that purpose, the Secretary of State—
(a) retains ultimate responsibility to Parliament for the provision of the health service in England, and
(b) must exercise the intervention and other functions of the Secretary of State in relation to that health service so as to secure that services are provided in accordance with this Act.”
[8] LORD MACKAY OF CLASHFERN
Page 2, line 7, at end insert—
“(4) For the purposes of this section, the intervention functions of the Secretary of State in relation to the health service in England are the functions of the Secretary of State under—
(a) section 13Z1 (failure by the Board to discharge any of its functions),
(b) section 253 (emergency powers),
(c) section 82 of the Health and Social Care Act 2008 (failure by Care Quality Commission to discharge functions),
(d) section 67 of the Health and Social Care Act 2011 (Monitor: failure to perform functions),
(e) section 242 of that Act (failure by NICE to discharge any of its functions),
(f) section 266 of that Act (failure by the Information Centre to discharge any of its functions), and
(g) section 285 of that Act (breaches of duties to co-operate).”
Amendment 5
BARONESS THORNTON, LORD HUNT OF KINGS HEATH, BARONESS FINLAY OF LLANDAFF, LORD WALTON OF DETCHANT
Page 2, line 3, after “to” insert “provide or”
A Better NHS 
Thanks for that Johnathon. Will spread round as many people as I can and will contact my lord about it as well.
Maybe Dr No is just dim, but by about the fifth paragraph of this briefing he was losing the plot. The HSCB, itself an amending bill, is now subject to amending amendments to the amendments, possibly further amended. Dr No thinks this briefing may be trying to say these are the kind of amendments up with which we will not put, but he can’t be sure. Quite what the bottom line is, is anyone’s guess.
Tactically, such briefings risk defeating their own aims. Of course we want the SoS’s duty to provide/secure the provision of services restored to its proper place, at the head of the Bill/Act that governs our national health service. Remove that duty, and you break the chain that links the common patient to the government, and in the gap a Pandora’s box of very willing cowboys will open, destroying responsible social healthcare for ever.
That, it seems to Dr No, is the point, and really is all any briefing needs to say.
“That, it seems to Dr No, is the point, and really is all any briefing needs to say.”
If that is all that needs to be said, then the Bill will go through and we will lose the NHS. Sadly we are almost at that point (due to the fact that there has been no proper opposition to this Bill, mainly because Her Majesty’s Official Opposition cannot be arsed) and what is happening now is the rear-guard action as part of the inevitable retreat where we all shake our heads and ask “how could this have happened?”.
We will get this Bill. The question is whether we have a thoroughly bad Bill or a slightly less thoroughly bad Bill. We may as well, at least, try for the latter.
RB – Dr No here is not getting at whether there should be a briefing – of course there should, even if, like you, he thinks the passage of the Bill is a foregone conclusion – but the form that briefing should take. The briefing in this post is House of Lord’s Briefing Paper 3, there having been two previous ones, and all are long. Conscientious and sympathetic peers may read them all in full – but many wont – and that defeats the object of the briefing in the first place. So there needs to be a short version, for those without the time or inclination to read the long versions.
“Conscientious and sympathetic peers may read them all in full – but many wont”
Dr No, I understand what you’re saying but that is so depressing. This is our health service we’re talking about here – affecting the lives and deaths of millions.
It is incredible that peers (presumably ennobled in the first place because they are reasonably clever and experts in their respective fields) might not be able to get their arses in gear sufficiently to struggle through a few pages of documentation in order that they might better be able to do their job, which is to protect the people of this country from bad legislation.
I have emailed my lord and what I have said is that he should vote for amendment 3 because it preserves the original wording and duty of the act and he should not vote for amendments 4 and 8, because they concern powers of intervention when a commissioning body fails in its newly devolved duty, not the retaining of the actual duty of the health secretary himself. I’ve copied him on a link if he wants to get into further detail. Some Lords do actually like detail and there was a particularly sniffy post on ‘Lords of the Blog’ about this, Dr No, but I agree with you that generally short and sharp is better.
This is the Lord of the Blog post here;
http://lordsoftheblog.net/2011/10/22/adopt-a-lord-is-counterproductive/
Julie – Dr No hadn’t spotted Baroness M’s post but it does at least add some credence to what he has been saying for some time. The other point Baroness M makes is that that well argued points are more effective ie persuasive – than numbers alone and Dr No suggests that the more cogently and briefly an argument is presented, the more persuasive it will be. Dr No himself tends to favour a back of the envelope front page, so to speak, and then with the detail in appendices. That way you get the best of both worlds.
TallPauly – Dr No thinks your valuable comment may have been temporarily hidden pending moderation. You are right – it is very depressing – but Dr No is trying to be realistic about what can be achieved in the Lords. Julie’s later comment and link are very telling. He suspect the Lords – as someone else might have said – are just like us, only they have more peerages.
#3 was withdrawn; #4 has been moved:
Baroness Williams of Crosby (Liberal Democrat): I am happy to withdraw my amendment given the statement made by the Minister. I also join the many people in this House who have said how much we appreciate his almost unending patience with us and his willingness to listen and engage in extremely informed and very intelligent debate. It gives me pleasure on this occasion to withdraw the amendment.
. . Amendment 3 withdrawn.
http://www.theyworkforyou.com/lords/?id=2011-11-02a.1237.10&s=speaker%3A10599+section%3Alords#g1271.4