NHS Reform & Health Care Professions Bill

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Ms Blears: No, Mr. Hurst. The Health and Social Care Act 2001 refers to regulations relating to the requirement for local NHS bodies to consult the overview and scrutiny committees and provides, in section 7(3)(c), that the regulations can determine the matters on which local NHS bodies must consult the overview and scrutiny committees. That is wide enough to cover matters such as specialist commissioning in addition to the physical provision of services on the ground. The regulations can specify the matters on which the NHS must consult the overview and scrutiny committees to enable them to take a view.

Clearly, within the NHS there will be specialist provisions covering more than one area. A service could be pan-London, for example, or cover a conurbation, so the flexibility in the 2001 Act, which provides for overview and scrutiny committees to work together, to co-opt other members, and to have joint committees working together on scrutiny, is important. It is crucial that they have the flexibility to deal with issues that cross boundaries and cover more than one area. There is flexibility within those regulations for overview and scrutiny committees to operate in different ways depending on the circumstances of the issue that they are scrutinising. That flexibility is built into the system.

Mr. Heald: If that is right, why does the Under-Secretary oppose new clause 3?

Ms Blears: We are resisting new clause 3 because the powers to make reference to Ministers can be included in the regulations under section 7(3) of the 2001 Act. The overview and scrutiny committees have a power to scrutinise and they will have the power under those regulations to refer contested reconfigurations to Ministers in a way that is no less powerful than that pertaining to community health councils.

Dr. Harris: This is the nub of new clause 4, which covers referral. I have looked carefully at section 7(3) of the 2001 Act, which states:

    ''Regulations may, in relation to an overview and scrutiny committee of an authority to which this section applies, make provision''.

Paragraphs (a), (b), (c), (d), (e) and (f) then list the matters to which the subsection applies, but none mentions the words ''refer'' or ''Secretary of State''. It is difficult to see how the Under-Secretary can rely on section 7(3) and regulations therein to provide the power, let alone the duty, to refer to the Secretary of State decisions with which overview and scrutiny committees are unhappy. I am reassured by the Under-Secretary's view that it should be there, but I am not satisfied that she is correct in saying that it is there.

Ms Blears: I understand the hon. Gentleman's concern. It is important to ensure that the law provides the power of referral. Section 7(3)(c) of the 2001Act provides a power to specify the matters on which the NHS must consult the overview and scrutiny committees and section 64(8) provides that the power in regulations can include a requirement to make incidental supplementary provisions on the authority making the order as we consider expedient. We could make provision here to decide what happens when the overview and scrutiny committees have been consulted. They would then have the power to decide, having been consulted, that they are happy with the proposals and therefore intend to make the referral.

However, I am reviewing the arrangements for community health councils and their power of referral. We shall be consulting on the policy framework on the regulations and the guidance for health scrutiny early in 2002, when we intend to invite the views of all stakeholders, which clearly includes local government. We are conscious that local government bodies are independent. We want a partnership with which they are comfortable. They will represent the views of their local communities and refer some very important matters to Ministers on the future of health services in their area, so we must ensure that the powers we put in place are powers that they also feel that they can operate properly to ensure that those referrals take place.

I appreciate that the Bill is a little tortuous at the moment. There are the regulations under section 7 of the 2001 Act, which then provide a further incidental power under section 64 of the 2001 Act, to ensure that referrals can be made when there is a contested reconfiguration. It may be tortuous, but it can certainly happen. I will be consulting on the regulations and guidance that we issue to ensure that the power for referral of contested reconfigurations is certainly no less than the power that the community health councils currently have. Hopefully it will be more coherent, because there is a slight difference between the statutory powers that they have now and the powers that they perhaps should have in future.

3.45pm

Dr. Harris: I would have been very grateful but for the last few words of the Under-Secretary's speech. I understood that such a review might have been done by now. If it had been done, we might have known where we stood when we were in a position to amend the Bill in Committee, instead of being obliged to wait for the review results.

Nevertheless, I accept what the Under-Secretary said in good faith. She has placed it on the record that she recognises that to describe the burying of a ''maybe'' power in a supplementary provision of a miscellaneous and supplementary part of another Act when it would be best put, for everyone's ease of understanding, with section 7 of the 2001 Act is rather tortuous might be an understatement.

I am grateful to the Under-Secretary and I should like to put those remarks on record. If the hon. Lady has not finished, I should also like to say a few words about new clause 3.

Ms Blears: Perhaps I may help the hon. Gentleman in terms of the regulation powers. I understand that the primary legislation that relates to community health councils had no power to refer either, and actually used the same framework of powers used when the community health council regulations were made. There seems to be a history of tortuous legislation in this field, which we might be able to address.

Dr. Harris: Perhaps the Under-Secretary would write to me setting that out, because it is easier for me to see it at any time of the day or week when it is written down.

I want to take the opportunity to press the hon. Lady a little further on new clause 3. We have covered new clause 4, but new clause 3 does make a significant change. The current arrangements are set out in the Local Government Act 2000 in section 21—which is amended by section 7(1) of the Health and Social Care Act 2001—which adds, in order to deal with the overview and scrutiny committee in the context of the health service, an extra paragraph (f) to section 21(2). Section 21(2) is predicated on the basis of executive arrangements by local authorities, which must ensure that the overview and scrutiny committee has the power to do various things. While new clause 3 takes this health issue out of that section, it adds a new section that states:

    ''(2A) Executive arrangements by a local authority must ensure that the overview and scrutiny committee . . . has a duty to review and scrutinise''.

I should like reassurance from the hon. Lady because, if she is continuing to resist that new clause, the Government would be foolish not to do something. As the hon. Member for Wyre Forest has said, there are wheels within wheels between some trusts and some people in local authorities, particularly when local authorities have huge political majorities on less than an overall majority. Therefore, we do need an assurance that there will be a duty to scrutinise, and not just the power to do so if they feel like it.

Ms Blears: I can confirm that we are resisting this new clause. I explained previously that with regard to scrutiny—even councils scrutinising the decisions of their own executives—local government does have a power, not a duty. Local government is an independent organisation and we do not seek to compel councils to operate in any particular manner. I have said that where they unreasonably refuse to scrutinise, they would be open to judicial review, as any public body would be in relation to an unreasonable refusal to exercise its powers.

Therefore, we do not wish to depart from the general provisions that relate to scrutiny of local government functions, as they relate to the NHS. We want the scrutiny of the NHS to be part of a framework of scrutiny, and therefore to be dealt with in a consistent manner by local government, as it would deal with the scrutiny of its own executive functions. It is also important to confirm that those in local government will not be the only scrutineers in the new system. Our debates on patients forums have confirmed that they will scrutinise trusts at a local level by inspecting, monitoring and assessing standards. Several bodies will be scrutinising the system, and that will provide a series of checks and balances.

Mr. Heald: The Under-Secretary will remember that in schedule 7(1) to the National Health Service Act 1977, community health councils were placed under a duty

    ''to represent the interests in the health service of the public in its district''.

The overview and scrutiny committees will address that issue, but they are not under a duty to do so. This is taking something away from the watchdog when that is not what we want to happen.

Ms Blears: It would be difficult to describe transferring the functions of community health councils to democratically elected local government as reducing and diluting existing powers. The decision to transfer powers to local government was broadly welcomed because local government has a standing within the community, its members are elected at local level and it represents constituents on a range of issues. To include the way in which the national health service functions in terms of local government's powers is therefore correct. I referred to community health councils having no statutory duty of referral on primary legislation with regard to contested reconfigurations, which is why this situation remains as it is.

Transferring community health councils' powers to local government will enable some issues to be looked at in a broader framework, with the effect that health service decisions will be examined in the context of the wider decisions that local authorities must make, making the process more robust. I have said twice that it is inappropriate to compel local government to operate in a certain manner, and I am sure that it will exercise the powers of scrutiny in what I hope will be flexible, imaginative, innovative and creative ways that are in the community's best interests.

New clause 5 relates to the requirement for patients forums to be members of the overview and scrutiny committees. I agree that when they are scrutinising, local authority committees should be able to draw on an informed patient perspective when considering specific health care provision. Patients forums are an obvious place for insight into and expertise on these issues, but we should not oblige local government to operate in a specific way in these circumstances. We are clear that it is good practice for forum members to be co-opted on to overview and scrutiny committees, and we shall be promoting that as part of the consultation on how overview and scrutiny committees should operate. I am keen for overview and scrutiny committees to co-opt as members, taskforces or sub-committees—whatever arrangements they want to set in place—as many local people as they can to inform the agenda.

Especially in the early days—when perhaps local government members will not have as much expertise as some people already in the system have—it will be crucial for local patients and members of former community health councils to be able to inform the overview and scrutiny committees on the top community issues that must be looked at as priorities. The evidence base from the patients forums will feed into the overview and scrutiny committees so that the scrutiny consists not only of a formal appearance by the chief executive of the trust every six months when they tick the boxes, but an in-depth analysis of the quality and standards of service that are provided to the community. Drawing in the expertise of the patients forums will be key, and it is a matter of good practice. However, it is inappropriate to compel local government to organise itself in a particular way. That would involve a diktat from the centre, but we want overview and scrutiny committees to grow organically and develop best practice for their local communities. For that reason, we shall resist new clause 5.

 
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