Health and Social Care Bill

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Mr. Hammond: In an ideal world, would all organisations be green-light accredited? Is that the Government's objective? As I read the document, it suggests that the majority will not have full autonomy, and that autonomy will be preserved for the privileged few. Should not the objective be autonomy for the vast majority?

Mr. Denham: The consultation document should be read to mean that the largest group of trusts--in the first instance, the yellow-traffic-light trusts--should be able to earn a greater degree of autonomy as they improve. The document has been worded to indicate that. As for the long term or, ideally, the medium term, I would be delighted if we were successful in our fundamental aim, which is to reduce the level of variation between the different parts of the health service by enabling the poor performers to improve.

All right hon. and hon. Members know that the best of the NHS is fantastically good. The biggest problem with the NHS is not that the best is fantastically good, but that the variation between one part of the service and another is too wide. The principle underlying the performance system is to provide at one and the same time greater freedom for those who are delivering services and are successful on the ground, and greater support and intervention for those failing to provide the quality of service that patients need. We have tailored the performance system to the problems we face at the moment, but the more successful we are, the more the performance system will change.

The hon. Member for Runnymede and Weybridge quite fairly asked me to explain the circumstances in which the Secretary of State would use the powers. Normally, the powers would be used when other measures of support and intervention have failed to bring about the necessary improvements. The NHS plan sets out a series of actions that do not require legislation and that are designed to improve the performance of failing NHS bodies. They include the NHS body agreeing a recovery plan with the Department of Health's regional office; closer monitoring of the body by the regional office to ensure that the recovery plan is implemented; the ability to introduce inspections by the Commission for Health Improvement on a two-year rather than a four-year basis; targeted assistance and support for the modernisation agency, including bringing in external expert clinicians or managers to re-design or turn around failing services.

Although the clause provides for the possibility of a massive or catastrophic failure that requires urgent or immediate action, the general intention is to provide a measure that can be taken if the other measures have failed to deliver. For example, if a trust's financial mismanagement continued despite repeated warnings and opportunities to take action, which it resisted, it would be right to have the power to intervene. If renal services were consistently bad, and all efforts to bring about change had failed, the measures in clause 16 would be appropriate.

The hon. Gentleman asked a question about private sector provision. One of our main renal centres, and about one fifth of satellite services, are currently provided by the private sector. We should not rule out using the private sector to try to deal with failing renal services. It can provide management skills under such circumstances.

The measures under clause 16 are to be taken as a last resort, or at the end of a series of other measures, except in the event of an immediate or catastrophic failure when urgent action must be taken. The hon. Member for Isle of Wight is right—adopting the affirmative resolution procedure would place the business managers of Parliament between the Secretary of State and the urgent action required to sort out a trust. Finding the time to get an affirmative resolution debated in both Houses is not easy, and if there were a serious threat to patients it would be wrong to waste time in such a manner.

The amendment tabled by the hon. Member for Isle of Wight does not introduce a statutory instrument procedure. It is difficult to imagine the circumstances in which the Secretary of State could take such action without it being a matter of public knowledge, and he would need to state clearly why he had done so. There is no need for a formal procedure for reporting.

The amendment moved by the hon. Member for Runnymede and Weybridge is unnecessary. The previous Administration introduced a wider and more draconian power to dissolve trusts entirely, and did so with no parliamentary safeguards at all.

Dr. Brand: The importance of accountability is clearly recognised. I am, therefore, disappointed that we will have to rely on the grapevine and the odd press release when we want to know the reasons for the Secretary of State's actions. As the hon. Member for Runnymede and Weybridge said, those means of communication are not readily accessible to Opposition politicians. Would it not be much better for the body politic if the Committee were to accept amendment No. 41 and make it a formal requirement for the Secretary of State to publish the reasons for his actions?

Mr. Denham: It will not be necessary to find out about these matters on the grapevine. The Secretary of State will have to give reasons for his actions. I am not persuaded of the need for a formal reporting system, as suggested by the hon. Gentleman's amendment.

Mr. Hammond: I am confused now, because a few moments ago the Minister seemed to suggest that there would not be any statutory instrument procedure. Clause 16 provides for an order to be made, and Clause 61 states:

    Any power under this Act to make any order or regulations shall (except in the case of an order under section 14(5)) be exercisable by statutory instrument.

My understanding has been that an order will be presented by statutory instrument, subject to the negative procedure. The amendment that I tabled is designed to change that provision, making the statutory instruments made under the Bill subject to the positive procedure. I have another point to make, but perhaps the Minister could reply to that one first.

Mr. Denham: I shall reflect on what I have said, and if I have been unclear, I will reply during the summing up. I was trying to point out to the hon. Member for Isle of Wight that, although he seemed to believe that his amendment related to a statutory instrument, it did not create a statutory instrument. In the case of the hon. Member for Runnymede and Weybridge, I was pointing out potential problems with adopting the affirmative procedure.

Mr. Hammond: I am sorry, but the Minister still has not clarified whether an order under the clause will be presented by means of a statutory instrument subject to the negative procedure.

Mr. Denham: The order is made under the 1977 Act because clause 16 will insert new sections into that Act. Subsection (2) amends the Act's provisions that govern orders, so that the order is not a statutory instrument.

11.45 am

Dr. Brand: Even though we do not seek a statutory instrument, will the Minister accept that it is important to have a statutory means of communicating? We must ensure that Ministers give reasons that are readily accessible to Members of the House.

Mr. Denham: I am not convinced about that. We have considered the precedents set by the House in approving analogous legislation. For example, the powers of intervention that the Department for Education and Employment can use in failing local education authorities do not provide for a statutory system of reporting, as I understand them.

Dr. Brand: May I draw the Minister's attention to our discussions on the Food Standards Agency? Such considerations were made, and the relevant Minister has to publish the reasons for intervention by statute.

Mr. Denham: I shall certainly reflect on that. I have given some thought to the matter since the amendments were tabled, and have concluded that it is sufficient to recognise that the Secretary of State will need to state clearly why he has taken action. I am not persuaded that a formal reporting system would add anything to the procedure, so it would be unnecessary.

Mr. Hammond: As I said in my previous intervention, I had a substantive point. I ask the Minister to press his rewind button by about five minutes. During his attempt to outline the scope of the likely use of the clause, it was not apparent how many organisations in the NHS are likely to be red. The document that he has circulated makes it clear that the initial quota of green lights will be 25 per cent. We need to understand whether he expects the initial quota of red lights to be two, three, 10 or 1,000. What is the scale? Does he intend the quota of red lights to be 25 per cent?

Will the Minister also clarify a point that arises from his example of failure of renal services? Is it appropriate to place a trust in the red-light category owing to a failure in one of its services when its overall performance is good?

Dr. Brand: Absolutely.

Mr. Hammond: The hon. Gentleman says that that is absolutely appropriate, but let us move on. Would it be appropriate for the Secretary of State to intervene under clause 16 to shut down the trust's board of management owing to the failure of one service?

Mr. Denham: There are two points. First, I do not envisage using clause 16 at the first sign of failure in an organisation or service. I have tried to make it clear that it is a power to be used only after all other measures of intervention have failed. One must allow for an exception if failure is catastrophically widespread and action under clause 16 is necessary to protect patients' interests. In the case of renal services, the powers would be used only if the problem was apparent and recovery action had been demanded and taken, but had failed to tackle the problem. In practice, we will need to consider how to apply the powers, but that is our broad intention.

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