APPENDIX 2: CORRESPONDENCE
Letter from Earl Howe, Parliamentary Under Secretary
of State for Quality, Department of Health, 10 October 2011
1. I would like to thank you for the Committee's
report on the Health and Social Care Bill. I am grateful for the
consideration paid to the Bill and welcome the opportunity to
address the issues raised in this report. I trust that the House
will give the findings of this report and the Government's response
the due consideration these matters deserve.
2. The Committee raised four substantive points in
relation to the Bill, which the Government has considered carefully
and which I will attempt to answer in turn. You conclude "that
it may well be necessary to amend the Bill in order to put this
matter 'beyond legal doubt'."[17]
The Bill's impact on ministerial responsibility
and accountability for the NHS
3. Your report raises concerns about ministerial
responsibility and accountability for the NHS. We consider ministerial
responsibility and accountability to be of the utmost importance
and thank the Committee for its deliberations on this subject.
However, we do not agree that the Bill places undue risk on the
Government's accountability for the NHS to Parliament or the courts.
The report says:
"We are concerned that the Bill, if enacted
in its current form, may risk diluting the Government's constitutional
responsibilities with regard to the NHS."[18]
And:
"It is not clear whether the existing structures
of political and legal accountability with regard to the NHS will
continue to operate as they have done hitherto if the Bill is
passed in its current form. As such, the House will wish carefully
to consider whether these changes pose an undue risk either that
individual ministerial responsibility to Parliament will be diluted
or that legal accountability to the courts will be fragmented."[19]
4. As the Committee highlights, the Bill proposes
to amend the NHS Act 2006, which currently places a duty on the
Secretary of State to 'provide or secure the provision of services'
in accordance with the Act.[20]
5. The Government's proposed amendment will place
a duty on the Secretary of State to 'exercise the functions conferred
by this Act so as to secure that services are provided in accordance
with this Act'.[21]
6. The Government accepts that replacing the Secretary
of State's duty to 'provide or secure the provision of services'
with a duty 'to secure that services are provided' does alter
the Secretary of State's political accountability in so much as
he will no longer have a statutory duty to provide or commission
services which is at present delegated to NHS bodies. This does
not reduce the overall responsibility that the Secretary of State
has for the NHS. The Secretary of State retains political accountability
for the NHS and legal accountability for the statutory functions
placed on him.
7. The Bill also proposes to remove the duty on the
Secretary of State to 'provide throughout England, to such extent
as he considers necessary to meet all reasonable requirements'[22].
This duty will now be placed on clinical commissioning groups
("CCGs") which 'must arrange for the provision …
to such extent as it considers necessary to meet the reasonable
requirements of the persons for whom it has responsibility'[23].
8. The purpose here of removing the Secretary of
State's duty to provide particular services and instead giving
the function of commissioning those services to the NHS Commissioning
Board ("the Board") and CCGs is simply to make clear
that it should not be the responsibility of ministers to provide
or commission services directly. Currently the Secretary of State
uses directions to delegate the duty in section 3 to Primary Care
Trusts ("PCTs"), and to direct them about its exercise.
The Government's policy is that the Board and CCGs should not
be subject to a general power of direction and should instead
use their professional expertise to act in the best interests
of patients, free from political micromanagement. In practice,
the Bill will change little; there will continue to be no involvement
in the commissioning process for Whitehall or the Secretary of
State.
9. Furthermore, this Bill will not change the long
shared policy aim of all the main parties in England to secure
a commissioner/provider split in NHS services in order to avoid
conflicts of interest and maximise value for money for patients
and taxpayers. 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.
10. Currently, PCTs commission rather than provide
the majority of their services, and once PCTs complete the process
of transferring their community health services provider arms,
the separation will be complete. In these circumstances, the Secretary
of State's duty to provide under section 1(2) of the 2006 Act
would no longer be necessary or appropriate, in the light of the
policy that neither the Secretary of State nor NHS commissioners
would be providing NHS services. Even without the rest of the
Government's modernisation programme, there would be a case for
removing the duty to provide, so that the legal framework accurately
reflects the practical realities.
11. Removing the duty to provide and giving CCGs
the function of commissioning does not mean that the Secretary
of State no longer has any control or influence over the NHS.
In addition to the overarching duty to promote a comprehensive
health service[24] and
his duty—for that purpose—to exercise his other functions
so as to secure that services are provided, the Bill gives the
Secretary of State extensive powers of oversight and stewardship
of the NHS.
12. For example, the Secretary of State will have
a wide range of functions to set national objectives, requirements
and parameters for the health service, including:
· the duty to issue a mandate setting objectives
and requirements for the NHS Commissioning Board (new section
13A in clause 20);
· "standing rules" regulations
imposing requirements on the Board and CCGs (clause 17);
· regulations determining how the Board
authorises or intervenes in CCGs (new sections 14C and 14Z20 in
clause 22);
· regulations setting procurement rules
for commissioners to follow (clause 71);
· a power of veto over Monitor's first proposed
set of general licence conditions for providers; and
· regulations defining which health or social
care services should be subject to regulation by the Care Quality
Commission and defining the safety and quality requirements that
those services should be regulated against (sections 8 and 20
of the Health and Social Care Act 2008).
13. The Bill also places overarching duties on the
Secretary of State in relation to the health service, such as
duties about improving the quality of care and reducing inequalities
(clauses 2 and 3), and a duty to report annually on the performance
of the health service (clause 50).
14. These powers and duties together make the Secretary
of State's responsibility for the NHS clearer than ever before.
15. To make clear that Ministers are responsible
for overseeing the NHS and holding it to account, the Bill creates
an explicit duty to keep under review how effectively all the
national NHS bodies are performing their functions (clause 49).
The Secretary of State will have extensive powers of intervention
in the event of a significant failure by any of those bodies.
16. The Committee's report argues that the Bill would
break the link between the Secretary of State's duty to promote
a comprehensive health service[25]
and the duty to provide or arrange services[26]
in the NHS Act, 2006. 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
17. As stated in earlier paragraphs, the Secretary
of State and the Board will have powers and duties in place to
ensure that if the level of services that are being commissioned
by CCGs mean that there is a risk to the provision of a comprehensive
health service, they will step in to rectify this. For example,
the Board will be subject to the duty[27]
to promote the comprehensive health service and will set the commissioning
outcomes framework and maintain a national oversight of CCGs to
this end. And, if there was any risk that CCGs might fail to commission
an important service, the Secretary of State would have power
to make "standing rules" regulations to require this
service to be commissioned.
18. In relation to the accusation that the Bill poses
a risk of fragmentation of legal accountability to the courts,
whilst CCGs would be the target of any legal challenges to decisions
about the commissioning/provision of health services, this largely
reflects the current situation. Under the current system, PCTs
and not the Secretary of State are the proper target of such legal
challenges, even though PCTs are exercising the Secretary of State's
functions. The PCTs are the bodies making decisions about local
services and are therefore liable to judicial review. Paragraph
16 of Schedule 3 to the 2006 Act means that, even when exercising
the Secretary of State's functions, any liabilities incurred are
enforceable against the PCTs and not the Secretary of State.
19. Similarly, in future it will be CCGs which are
subject to legal challenge about local decisions. The Secretary
of State could also be challenged by way of judicial review in
relation to his statutory duty to secure that services are provided,
as could the Board in relation to its corresponding duty in new
section 1E(3)(b) to exercise its functions in relation to CCGs
in that way. This mirrors the current system, whereby the Secretary
of State and Strategic Health Authorities ("SHAs") could
also be subject to judicial review. As such, we reject the notion
that fragmentation of legal accountability will occur under the
new Bill.
The Bill's specific provisions for ensuring ministerial
accountability
20. The Committee's report questions whether the
measures set out in the Bill will do enough to achieve proper
ministerial accountability for the NHS. The Government firmly
believes that it does. The Committee's report says:
"Under clause 49 the Secretary of State must
'keep under review the effectiveness' of a range of NHS bodies.
These include the NHS Commissioning Board but do not include CCGs.
Under Clause 50 the Secretary of State must publish an annual
report on the performance of the health service in England. While
these clauses will make a modest contribution towards accountability,
the House will wish carefully to consider whether they are sufficient."[28]
21. As explained above, clauses 49 and 50 are only
a part of the package of ways in which accountability will be
assured in the new system. The fundamental provisions which mean
that the Secretary of State will continue to be politically and
legally accountable for the NHS are his duties to promote a comprehensive
health service and to exercise his functions so as to secure that
services are provided.
22. The Bill will improve Ministerial accountability
to Parliament and the public. For the first time the Secretary
of State will have to report to Parliament on the performance
of national NHS bodies and the state of the NHS as a whole.
23. Currently, the Secretary of State has sweeping
powers to decide how large parts of the NHS operate, through wide
powers of delegation and direction over PCTs and SHAs. For example,
the way in which NHS services are commissioned, the way that providers
are paid, and the way that competition works in the NHS are largely
decided by the Minister of the day, with little or no direct accountability
to Parliament. Yet, as the debate around this Bill has illustrated,
these are all fundamental issues where Parliament has a strong
view and a legitimate interest. Under our proposals, it will be
Parliament that decides, through the Bill, the key parameters
of how NHS care is commissioned and regulated. Detailed requirements
will be set out in regulations (which are subject to Parliamentary
scrutiny) rather than in directions (which are not).
The need to amend the current Act
24. The Committee asks whether it is necessary to
amend the relevant sections of the NHS Act 2006 at all. The Committee's
report says:
"It is not self-evident that the proposed changes
are a necessary component of the Government's reform package.
Given the uncertainty as to the interpretation of the provisions
proposed in the Bill, could not the relevant wording contained
in the 2006 Act be retained?"[29]
25. The Government considers that changing the 2006
Act is vital. Section 1(2) of the 2006 Act needs to be amended
to remove the Secretary of State's duty to provide services in
accordance with the Act, in order to reflect the changes to the
legal framework for the NHS made by the Bill. This is particularly
true because:
(a) The functions relating to commissioning services
are to be conferred directly on the NHS Commissioning Board and
CCGs, rather than relying on the current system of directions
to PCTs to perform the Secretary of State's functions.
(b) The Secretary of State, the Board and CCGs
will not have the function of providing NHS services. The Board
and CCGs are to be responsible for the commissioning of services
but not provision.
(c) The Secretary of State will secure the provision
of services by exercising his functions in relation to other bodies,
for example through the mandate, rather than as in the 2006 Act
where the function of providing or commissioning services is placed
on the Secretary of State who in turn delegates it to NHS bodies
by directions.
26. The Government's policy is that responsibility
for commissioning NHS services should be imposed clearly in primary
legislation on the bodies who will actually carry out that function,
not on the Secretary of State, who does not in practice commission
or provide services under the current system. In the Government's
view, outside of the cases of significant failure or emergencies
which are catered for in the Bill, the Secretary of State should
not have direct responsibility for commissioning when these functions
have been conferred upon CCGs and the Board by Parliament. This
provides greater clarity and accountability for the NHS.
27. In addition, as discussed in paragraphs 9 and
10 of this letter, the Government's policy is that neither the
Secretary of State, nor the NHS bodies responsible for securing
local services, should be providing NHS services. This means the
Department, the Board and CCGs should not be directly managing
NHS hospitals or other facilities, nor employing the staff providing
NHS services[30].
28. It is for these reasons that the proposed changes
to sections 1 and 3 of the 2006 Act do represent a necessary component
of the proposed reform package.
The Secretary of State's duty to promote autonomy
29. The report points to the new duty to promote
autonomy in the health service placed on the Secretary of State
as a further indicator that constitutional accountability for
the NHS will be severed. The Government believes that devolving
day-to-day decision-making to front-line organisations is essential
to improving the quality of the NHS and making services more responsive
to patients. The duty in clause 4 around promoting autonomy is
important to support and reinforce this. But it will in no way
remove overall responsibility from Ministers, and the duty will
always be subservient to the greater interests of the health service.
30. The Committee's report says of the duty to promote
autonomy (Section 4):
"This provision underscores the extent to which
the chain of constitutional responsibility as regard to the NHS
is severed."[31]
31. The duty on the Secretary of State to act with
a view to securing autonomy is subject to the words "so far
as is consistent with the interests of the health service".
This means that the interests of the health service must always
take priority. That wording must also be seen in the overall context
of the Bill, in particular the duty to promote the comprehensive
health service and the new duty to the improve the quality of
services. The effective discharge of these core duties is plainly
in the interests of the health service and takes precedence over
the promotion of autonomy. The duty of autonomy will never prevent
the Secretary of State intervening in the interests of the health
service.
32. The specific purpose of the autonomy duty is
to free frontline professionals to focus on improving outcomes
for patients rather than looking up to Whitehall. It requires
the Secretary of State to always consider the impact of his actions
on health service organisations and ensure that he is acting proportionately.
It does not undermine his overarching duty to promote a comprehensive
health service nor does it enable ministers to abdicate responsibility
for the NHS.
Conclusion
33. I would once again like to thank the Committee
for examining the constitutional implications of the current Bill.
Whilst we accept that specific responsibilities will change as
new NHS bodies are set up, the Government does not believe that
this in any way diminishes ultimate ministerial accountability
or responsibility for the NHS. Indeed we believe the measures
set out in it strengthen and make accountability and responsibility
clearer than it has ever been. We do not consider any amendments
necessary to put this matter 'beyond legal doubt'.
34. In order to ensure that the House can consider
our response to the Committee's report in advance of the Bill's
second reading, I am copying in all members of the Committee and
providing copies for interested Peers in for the Printed Papers
Office. I am also placing a copy in the library of the House.
Letter to Earl Howe from the Chairman, 26 October
2011
The Constitution Committee, at its meeting today,
discussed the question of a possible amendment to the Health and
Social Care Bill concerning the issue of the Bill's potential
impact on ministerial responsibility and accountability for the
NHS. The discussion centred on a suggested revised wording for
the Bill which I mentioned to you yesterday evening, the wording
of which was:
"This Act does not adversely affect the existing
constitutional responsibility of the Secretary of State for the
health service in England."
In discussion, the Committee considered that this
alternative form of words was preferable:
"This Act does not diminish in any way the existing
constitutional responsibility of the Secretary of State for the
health service in England."
Please let either myself or the Clerk to the Committee
know if it would be useful to take this forward as an amendment
before the next day of Committee proceedings on the Bill.
Incidentally, the Committee also noted that the relevant
words in the 2006 Act which we originally thought suitable for
this Bill are still extant in current legislation in, for example,
Wales.
Response from Earl Howe, 31 October 2011
Thank you for your letter of 26 October 2011 setting
out a possible amendment to the Health and Social Care Bill.
I was very interested to read the amendment proposed
by the Select Committee on the Constitution, particularly in the
light of the useful discussions we had on the accountability of
the Secretary of State during the latter stages of Committee on
Tuesday.
I have been giving careful thought to your suggestion,
alongside the other amendments on the same theme. I appreciate
your letter and input on this important issue, and we share the
aim of ensuring that the Secretary of State's responsibility to
parliament is placed beyond legal doubt. We are keen to engage
on this point further and I know we are meeting to discuss SofS
powers later this afternoon.
My reading of the Committee's proposed amendment
is that, like the amendment tabled by Lord Mackay, it seeks to
clarify the Secretary of State's continued responsibility to Parliament
for the health service. While it has always been our intention
that the Secretary of State should retain ultimate responsibility
to Parliament for the provision of the health service, I recognise
that there have been some concerns on this point. However, having
taken advice, my view is that we would be unable to accept this
amendment were you to table it. The words "constitutional
responsibility" have no clear meaning in this context and
therefore make the precise responsibilities of the Secretary of
State uncertain. I am not aware of this term having been used
in primary legislation before, either in relation to the NHS or
in other areas.
My understanding of the constitutional position is
that Parliament has provided for the establishment and operation
of a comprehensive health service in statute since 1946. That
legislation has imposed legal responsibilities on the Secretary
of State in relation to that service, including the core duty
to promote. In accordance with ordinary constitutional principles
and structures of political accountability, Ministers are responsible
and accountable to Parliament for the health service. It is unclear
whether "constitutional responsibility" is simply intended
to refer to Secretary of State's responsibility to Parliament,
or any other responsibilities, such as the duties to promote or
secure the provision of services. These latter duties cannot in
themselves be defined as "constitutional responsibilities",
other than in the sense that Ministers have a general obligation
to comply with the law.
I should also let you know that, although I am still
considering the amendments we have received on this issue, the
advice I have received suggests that the amendment from Lord Mackay
is more acceptable. It is consistent with our policy of conferring
powers directly on NHS commissioners and providers, with the Secretary
of State retaining responsibility, both to Parliament to account
for the health service, and to the courts for performing his duties
to promote a comprehensive health service and to secure the provision
of services for that purpose.
At the end of your letter you mention that the Committee
has noted that the duty to provide remains in current NHS legislation
such as the National Health Service (Wales) Act 2006. You are
indeed correct on this point. The words remain appropriate in
that Act, as Welsh Ministers continue to have duties and powers
to provide NHS services. In relation to England, however, the
Bill modifies the Secretary of State's functions so that he no
longer has specific duties or powers to provide NHS services,
but does retain duties to ensure that a service is provided.
You will be well aware of the Government's reasons
for updating the wording of the 2006 Act with regard to the Secretary
of State's duty to provide, so I will not rehearse them here.
However, I would refer you to my response to the Constitution
Committee (10 October) which explains the Government's position
in detail.
While I am unable to accept your suggestion, I would
like to thank you and the members of the Select Committee on the
Constitution for your continuing and constructive interest in
this important matter and look forward to engaging with you further
at the next session of Committee. I look forward to discussing
these points with you later.
17 Paragraph 5, 18th Report of Session
2010-2012, Health and Social Care Bill; House of Lords Select
Committee on the Constitution (30/9/11) Back
18
Paragraph 4, ibid. Back
19
Paragraph 18, ibid. Back
20
NHS Act 2006, Section 1(2). Back
21
Health and Social Care Bill 2011, Section 1(2). Back
22
NHS Act 2006, Section 3(1). Back
23
Health and Social Care Bill 2011, Section 10(1). Back
24
Health and Social Care Bill 2011, Section 1(1) Back
25
NHS Act 2006, Section 1(1) Back
26
NHS Act 2006, Section 3(1) Back
27
Health and Social Care Bill 2011, Section 1E (2). Back
28
Paragraph 17, 18th Report of Session 2010-2012,
Health and Social Care Bill; House of Lords Select Committee
on the Constitution (30/9/11). Back
29
Paragraph 19, 18th Report of Session 2010-2012,
Health and Social Care Bill; House of Lords Select Committee
on the Constitution (30/9/11). Back
30
The Secretary of State will be able to secure public health services
by providing or commissioning them himself, under new sections
2A and 2B-see clauses 8 and 9. Back
31
Paragraph 14, 18th Report of Session 2010-2012,
Health and Social Care Bill; House of Lords Select Committee
on the Constitution (30/9/11). Back
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