Health and Social Care(Re-Committed) Bill

Public Bill Committee, 30 June 2011.

Roger Gale (Conservative, North Thanet)

Good morning. I have to make some housekeeping announcements first. Hon. Members who have not already done so without the leave of the Chair may remove their jackets if they wish.

We have important business before us, and I find it tedious to start with rulings on minutiae, but I have to. There appears to have been a misunderstanding about the agreement on coffee in Committees. The Chairman of the Administration Committee has made an agreement with Mr Speaker, and Mr Speaker has agreed to issue a notice, which I understand has not yet been issued, that will allow hon. Members to have coffee in Select Committees sitting in private. That does not include sessions such as the evidence sessions that this Committee had the other day and it most certainly does not include Public Bill Committees sitting in public, such as this one. That is the ruling, so if hon. Members want to have a coffee, they will have to nip outside and have it; they can sit outside in the corridor for a minute or two.

I also have to point out that the Procedure Committee report on the use of electronic devices has been neither adopted nor debated by the House. As the rule stands, therefore, although it is perfectly reasonable for hon. Members to receive e-mails—for example, on BlackBerrys —laptops are completely out; tablets are in order so long as they are not obtrusive or intrusive; and no messages may be sent from the Committee while it is sitting. I must make that clear. It may change if the matter is debated next Wednesday, but for the moment hon. Members cannot twitter, so please do not. That includes Ministers.

Now let us move to the business, which is what we are really here to discuss. Amendment 227, in the first group—[Interruption.] Pay attention, please. [Interruption.] Order. Amendment 227 is a starred amendment and was tabled by the Opposition yesterday. Under the terms of the agreement that I reached and indicated at the Programming Sub-Committee meeting on Monday, I am fully prepared, as I said then, to accept that amendment, which is why it is included. From now on, it will not be the custom of anyone in the Chair to accept a starred amendment. That provision was made by me specifically to accommodate the timetable to which we have to work. I hope that that will be helpful to all concerned.

Another point has been raised concerning the groupings. For those hon. Members who are serving on their first Committee, or are not fully experienced in the procedures, I point out that custom and practice in Committee is to take themes and debate them. That is why they will find groupings of items that are not necessarily related.

For example, we are about to start on clause 1. Some of the grouped items do not relate to clause 1; they relate certainly to clause 5 and possibly to other clauses as well. They are debated together and later moved formally and voted on. They are not moved or voted on now. I hope that that is clear. It may be a good idea for those outside the Committee who are taking an interest in the proceedings and providing advice to be aware of that as well. Without further ado—

Simon Burns (Conservative, Chelmsford)

On a point of order, Mr Gale. I should be grateful if you advised me on whether it would be appropriate at this stage, for the benefit of the Committee, to give an explanation regarding changes to the names of some statutory bodies, particularly the clinical commissioning groups, because we will not reach them in the Bill until a bit later, although of course in the Bill in front of us, they retain their old names. With your leave, I will read out a short statement to explain the situation, if you think that that would be helpful.

Roger Gale (Conservative, North Thanet)

I am not in the habit of accepting ministerial statements, or indeed any statements, at the start of a Committee sitting. You will have to convince me, but if it seems that this would be for the convenience of the Committee rather than of Government Front Benchers, try me and see. I will stop you if it is out of order.

Simon Burns (Conservative, Chelmsford)

This is not for the convenience of Government Front Benchers because we are fully familiar with the change. Clause 6 inserts a new section 1E into the National Health Service Act 2006. It provides that there will be new statutory bodies, to be known as commissioning consortia, and that they will commission services for the purposes of the health service in England in accordance with the 2006 Act. As right hon. and hon. Members will be aware, in our response to the NHS Future Forum we announced our intention to change the name of commissioning consortia to “clinical commissioning groups” better to reflect the changes to their role and membership, which our proposed amendments to the Bill are intended to introduce.

It was a particular concern of many professional stakeholder organisations, voiced during the listening exercise, that commissioning consortia as proposed, led by local GPs, would be dominated by a single professional group. Changing the name to “clinical commissioning groups”, and through amendments that we will come to later, we propose to strengthen the involvement of other professions in the commissioning groups. We intend to introduce the necessary amendments on Report to bring into effect the change of name.

Changing the name of these bodies will involve technical and drafting amendments, and we intend to introduce them as a single batch covering the whole Bill, as they will simply replace references to the plural terms “consortia” and “commissioning consortia” with references to “clinical commissioning groups”, “commissioning groups” or “groups”, and replace references to the singular terms “consortium” and “commissioning consortium” with references to “clinical commissioning group” or “commissioning group”, as appropriate. There will be no change in the effect of the relevant clauses.

To avoid confusion during our proceedings now, and to ensure that our discussions in this Public Bill Committee are consistent with our response to the NHS Future Forum, in which we first set out our proposed changes to the Bill, rather than referring to commissioning consortia or to GP consortia, as they were becoming known, we intend to refer hereafter to clinical commissioning groups, even though the text of the Bill still refers to the original terms, as do the amendments that we have tabled for consideration by the Committee.

As the purpose of this Public Bill Committee is to consider the substantive changes to the legislation relating to clinical commissioning groups, and subject them to detailed scrutiny, I hope that the Committee will agree that it is therefore wholly appropriate to defer consideration of these numerous but routine technical changes to the names until a later stage of our proceedings—that is, on Report.

Roger Gale (Conservative, North Thanet)

Thank you. It is clearly for the Committee’s information and to its advantage that it should understand in advance that some of the terms in the Bill are likely to be changed. Hon. Members will have heard the statement, and it will appear in the Official Report, so those with an interest in the subject will wish to address it in the usual way.

Grahame Morris (Labour, Easington)

On a point of order, Mr Gale. On the Minister’s statement and the nomenclature in the Bill, will you rule amendments out of order if they are not using the correct description of the commissioning groups? The Minister referred to technical amendments and amendments relating to the recommendation for the NHS Future Forum, but there will be confusion if we do not use the same terminology.

Roger Gale (Conservative, North Thanet)

The Clerk will ensure that other Chairmen are fully aware that nothing will be ruled out of order if it refers to the language used in the Bill as drafted at present. If the Government are minded to change the terminology later, that is for later, but if hon. Members wish to move amendments now or during the Bill’s passage through Committee, the language used will be the language in the Bill. I hope that the hon. Gentleman will not have any difficulty with that. If he does seek the advice of the Chair again, we will rule in his favour.

Grahame Morris (Labour, Easington)

On a second point of order, Mr Gale. This is completely unrelated. Forgive me if the matter was addressed earlier, but it is about the declaration of interests. The question arose in the original Bill Committee, and the advice that I received, based on precedent in “Erskine May”, is that if Members on either side of the Committee have a direct financial interest in aspects covered by the Bill—I think in particular of private health care companies or related advocacy arrangements—they should declare it. Would this be an appropriate time to make such a declaration?

Roger Gale (Conservative, North Thanet)

My personal view is that that it is a matter for individual Members, who are responsible for their own integrity, probity and public statements. It has always been—

Debbie Abrahams (Oldham East and Saddleworth) (Lab) rose—

Roger Gale (Conservative, North Thanet)

One moment, please. I can take only one point of order at a time. I promise that everyone will get their say.

It is clearly understood that all Members’ interests must and should be declared in the Register of Members’ Financial Interests. It has been custom and practice in Committee that when Members first rise to speak in a Bill Committee, they should declare any interests then, so that it is doubly on the record. However, I do not encourage a chapter of declarations of interest at the start of every Bill Committee. As long as Members make it plain when they rise to speak that they have an interest, their declaration is then in the Official Report. I hope that that is okay. I now call the next victim.

Debbie Abrahams (Labour, Oldham East and Saddleworth)

On a point of order, Mr Gale. I apologise for being too eager. My point of order is about comments made by the Minister on Tuesday about amendments that the Government were proposing to table after the sitting. I would appreciate your ruling on that.

Roger Gale (Conservative, North Thanet)

I am sorry, but I am not conversant with the Minister’s statement. If the hon. Lady enlightens me, I shall try to give a ruling.

Debbie Abrahams (Labour, Oldham East and Saddleworth)

Yes, Mr Gale. It will be recorded that on Tuesday, it was suggested that amendments would be tabled after the sitting. That is definitely not in the interests of democracy.

Roger Gale (Conservative, North Thanet)

Members should not ask the Chair to rule on the interests of democracy. However, as a matter of procedure any Member may table amendments at any appropriate time—I mean any Member, including those who are not members of the Committee, although those amendments would have to be picked up by a member of the Committee to be debated. Any Member of the House may table amendments on Report—any Member, up to and including members of the Government. That is entirely proper. It is up to the individual Member—or Ministers for the Government and shadow Front Benchers for the Opposition—to determine the political timing of the tabling of amendments. Once we get to that point, however, it is no longer a matter for the Chair. I hope that that is clear.

Owen Smith (Labour, Pontypridd)

Further to that point of order, Mr Gale. Before making it, I declare an interest—I am a proud member of Unite.

Given that the Minister was so helpful a moment ago in giving us foresight of the technical amendments in respect of nomenclature, is there any prospect that he might enlighten us as to whether we can anticipate further amendments of a non-technical nature? As my hon. Friend the Member for Oldham East and Saddleworth said a moment ago, we learned during Tuesday’s evidence sittings that there are to be further substantial amendments. As the Minister is in such a helpful mood, I wonder whether he might—

Roger Gale (Conservative, North Thanet)

I understand the thrust of the hon. Gentleman’s request, but he will appreciate that that is not a matter for the Chair. The nature and tabling of amendments is a matter for the Member—any Member.

I now ask the Committee to move on, as we have quite a lot to discuss. We should make progress without further ado.

Clause 1 - The Secretary of State and the comprehensive health service

Liz Kendall (Labour, Leicester West)

I beg to move amendment 1, in clause 1, page 2, line 4, leave out from ‘(b)’ to ‘in’ in line 6 and insert ‘must provide or secure the provision of services.’.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss the following:

Clause stand part.

Amendment 227, in clause 3, page 3, line 5, leave out from ‘must’ to ‘reduce’.

Government amendments 55 and 56

Government new clause 1—Secretary of State’s duty to promote comprehensive health service.

Government new clause 2—Secretary of State’s duty to keep health service functions under review.

Liz Kendall (Labour, Leicester West)

It is a pleasure to serve under your chairmanship, Mr Gale.

I am sure that Members on both sides of the Committee will be sorry that my hon. Friend the Member for Halton (Derek Twigg) is not with us in Committee. In the previous Committee, he was a diligent and hard-working Opposition Front-Bench spokesperson, and a man of great decency and integrity—

Simon Burns (Conservative, Chelmsford)

He still is.

Liz Kendall (Labour, Leicester West)

He is, and his spirit, values and forensic analysis of the Bill remain with us. I hope that all Members wish him well, and if they are happy for me to do so I shall pass on the Committee’s best wishes.

Simon Burns (Conservative, Chelmsford)

I am extremely grateful to the hon. Lady for giving way. It will come as no surprise that I wholeheartedly share her views, as do my hon. Friends. When she passes on her best wishes to the hon. Gentleman for a swift and speedy recovery, will she also add ours?

Liz Kendall (Labour, Leicester West)

I will. I thank the Minister for his kind comments and I will certainly pass them on.

I welcome my hon. Friend the Member for Pontypridd, who will speak from the Front Bench in this Committee. He continues to be a stalwart member of the team, and this time we shall mount an even more forensic challenge to the legislation. I also welcome my hon. Friend the Member for East Lothian, who is new to the Committee. She did not share in the joys of the initial Committee stage, but I am sure that we will initiate her into them. At this point, I want to hand over to my hon. Friend the Member for Islington South and Finsbury—

Emily Thornberry (Islington South and Finsbury) (Lab) rose—

Roger Gale (Conservative, North Thanet)

Order. I am afraid that it does not quite work like that.

Liz Kendall (Labour, Leicester West)

I am so sorry.

Roger Gale (Conservative, North Thanet)

It is all right. If the hon. Lady has completed her opening remarks and Ms Thornberry is ready to rise and wishes to speak, I will be happy to call her.

Liz Kendall (Labour, Leicester West)

I am sorry. We work in a comradely way on this side of the Committee, and I was stepping in and shall continue to do so. On a point of order, Mr Gale. If I speak to amendment 1, will it then be possible for my hon. Friend to continue with the clause stand part debate?

Roger Gale (Conservative, North Thanet)

Let me try to make this easy for everyone, although some Members might choose to make it difficult again. The only amendment that is moved at this stage is amendment 1. There are others in the group, but they are not moved, so technically it is simply a question of moving amendment 1 and then debating the issues. Any Member, on either side of the Committee, who wishes to speak to the amendment may do so, if they catch my eye.

Emily Thornberry (Labour, Islington South and Finsbury)

May I ask for a two-minute adjournment? It is extraordinary how the—

Simon Burns (Conservative, Chelmsford)

No! The hon. Lady turns up late and wants an adjournment—

Roger Gale (Conservative, North Thanet)

Order.

Emily Thornberry (Labour, Islington South and Finsbury)

I do apologise. I undertake never to be late again. I presume that my lateness may have had something to do with the strike that happened this morning. The traffic on the Embankment, Horse Guards and Whitehall was static— I was parked outside No. 10 for at least 10 minutes. Normally, it takes me 20 minutes to drive in from Islington. This morning, it took me an hour and 10 minutes. If I may have two minutes, Mr Gale, I can gather the correct papers in front of me. In that way, I will save the Committee time.

Simon Burns (Conservative, Chelmsford)

No.

Roger Gale (Conservative, North Thanet)

I understand and sympathise with the hon. Lady’s difficulties; it is clearly not an easy day outside the House. However, what I cannot do now that an amendment has been moved is adjourn or even suspend the Committee, so we have to proceed. If it helps the hon. Lady to get her papers together and if the Minister is in an obliging mood, he might wish to speak to some of the Government amendments at this stage.

Emily Thornberry (Labour, Islington South and Finsbury)

Mr Gale, I now have the correct piece of paper and that is what I was concerned about.

Our amendment is designed to ensure that we put back into the clause the provision that the Secretary of State has an obligation to secure and provide. That seems to us to be a core point. Why do the Government want to take away the Secretary of State’s obligation to provide and secure health services in this country? Is it that it makes absolutely no difference, which was the heart of the Minister of State’s argument promoting the original clause? He said:

“The Secretary of State’s accountability to Parliament is already integral to the Bill. Including it explicitly in this clause would do nothing to add to the powers, responsibilities and the duties that the Secretary of State already has.”––[Official Report, Health and Social Care Public Bill Committee, 15 February 2011; c. 182.]

That was his position on 15 February, when he believed that the amendment we had proposed to the original clause 1 was unnecessary.

We now find ourselves in the odd position whereby the Secretary of State, the Minister and the Prime Minister seem to have accepted that the original clause is simply not sufficient in terms of accountability and of ensuring that the Secretary of State fulfils what we, the public and the national health service believe should be his full role. As a result, they propose partially to amend the clause, but the problem is it still remains weasel words. They are essentially talking about restoring the powers that were available in the original Act, but they would only partially re-establish it by way of new clause 1(1); crucially, they are not dealing with the duty to provide and secure. If the amendment is passed and we do not have a Secretary of State with an obligation to secure and provide, who has responsibility?

If one looks further into the Bill, one sees that there is an attempt to amend the national commissioning board’s role to echo the changes to the Secretary of State’s responsibility. That means that the national commissioning board and the Secretary of State will not have an obligation to provide. Crucially, if something went wrong, who would the public sue? Would the Secretary of State have responsibility for a failure of provision, or would it be the national commissioning board? It would not be the NCB because it now has the same obligation as the Secretary of State. Will each individual local commissioning consortium have the responsibility, because they will be the ones that are providing the services, or will actions continue to be against the Secretary of State or the national commissioning board? The Minister seems to be looking for some assistance on this important matter.

On 17 February, the Minister said:

“The Secretary of State cannot be held personally, directly responsible for quality levels.”––[Official Report, Health and Social Care Public Bill Committee, 17 February 2011; c. 272.]

The Secretary of State cannot be responsible for the provision of services, so presumably he no longer has legal responsibility. More importantly—never mind the lawyers or the individuals who may have suffered from a catastrophic failure of the national health service and need some relief—where is the political accountability? It is all very well for this new clause to say that the Secretary of State will have some overarching responsibility to ensure that a health service is provided nationally, which is the major thrust of the change that they now want to make.

However, if the Secretary of State is not to be held responsible for the provision and securing of health services, that raises the same questions as last time and throughout the pause. What is the Secretary of State’s responsibility? Could the Secretary of State be held personally responsible for anything that happens in the NHS? At a time when we are looking at £20 billion of efficiency savings, when there will be a reconfiguration of services, is not the real agenda that this clause continues to include the weasel words that have been challenged throughout the Bill’s development?

We continue to have the problem that the Secretary of State is ducking the big questions. If, for example, the Secretary of State during the election campaign had stood outside a particular hospital—I will not name one, as there were many—with a banner saying, “Save Hospital X”, and a decision was made to close that hospital, could the Secretary of State be held liable for that? Could the Secretary of State be brought before the House and be questioned about it? If he is no longer responsible for securing and providing health services in the way that the law has always said, what are we doing?

My central point is that the changes either answer the questions raised by the public and health service about the Secretary of State’s central role regarding responsibility for the NHS, or they do not. If they do ensure that the Secretary of State continues to have that central responsibility, what is the problem? Why do they need to change the original legislation? If there is a difference, will the Minister spell out in words of one syllable, so that we all understand, what the changes are and what the purpose is behind them?

John Pugh (Liberal Democrat, Southport)

Does the hon. Lady recognise that many of us asked a raft of questions in the previous Parliament, in which she was a Member, about why particular wards or facilities were being closed in our areas? Labour Secretary of State after Labour Secretary of State said that those were matters for local decision making, and not their responsibility. That lack of clarity, if it is such in this legislation, is already there.

Roger Gale (Conservative, North Thanet)

Order. Before the hon. Lady resumes, I should say that I am aware that there are one or two members who have not served on Committees before. It is important that we understand the nature of the proceedings in which we are engaged.

When I announced the business to be debated on clause 1, I indicated that that was to include the stand part debate. Some hon. Members might not yet understand that a clause stand part debate is that the clause stand part of the Bill; in other words, it is a bit like a Third Reading. That creates the opportunity to have a rather broader debate than might ordinarily take place on a specific and clearly defined amendment. That is why what the hon. Lady has said and is saying is in order under the terms of clause 1 and the responsibility of the Secretary of State, and that is why I am allowing this line of debate to continue. I hope that that is clear.

Emily Thornberry (Labour, Islington South and Finsbury)

The point raised by the hon. Member for Southport is important. It again shows the great disadvantage of having only a partial re-committal of the Bill. It is important to look at the provision of the NHS in the round, particularly when considering the responsibilities of the Secretary of State.

I remain concerned and am yet to be reassured, for example, about the remarkable power that used to be available to local authority overview and scrutiny committees to refer a decision on a reconfiguration to the Secretary of State, which the Bill originally sought to remove. I do not understand whether there has been an amendment to give back the power to overview and scrutiny committees to refer a decision about the reconfiguration of services to the Secretary of State. I presume that that change has not been made; otherwise, it would have been trumpeted by the Government.

In the time that we have had available, we have not been able to find any changes of that nature. I appreciate the criticism that the hon. Member for Southport made, but at the very least overview and scrutiny committees used to be able to refer a reconfiguration of services to the Secretary of State. If that power is being taken away, the changes being made to clause 1 are even more concerning.

Owen Smith (Labour, Pontypridd)

Was my hon. Friend, like me, surprised to see that the amendment to clause 1 differed from clause 1 of the National Health Service Act 2006? The reason why I was surprised, and I presume that she may have been as well, was that when the Secretary of State spoke in the House after the publication of the Future Forum report, we got the distinct impression that he was effectively going to revert to the 2006 provisions. When we saw that proposed new section 1(2) of the 2006 Act would be fundamentally different, I presumed that my hon. Friend was as surprised as I was.

Emily Thornberry (Labour, Islington South and Finsbury)

Absolutely. We also understood the Prime Minister to be reassuring the country that the original provisions in section 1 of the 2006 Act would be reinstated, most importantly section 1(2):

“The Secretary of State must for that purpose provide or secure the provision of services in accordance with this Act.”

That is the central point. Why is that being taken away? Why is “provide” being taken away?

During the evidence sessions, I asked the Secretary of State for a little more clarity about proposed new section 1(2) of the 2006 Act, given that under the Bill he will not be directly providing or securing the provision of services. I asked him what additional powers it would give him. Surprisingly, given that he is responsible for the Bill, he was unable to give a full answer. He has since written to me with an answer, for which I am grateful. It contained 235 pages of delegated powers and was sent to me, in classic fashion, seven minutes before the end of the traditional working day yesterday, so I have to confess that I have only skim-read it. Nevertheless, in the 15 hours available I have done my best.

Simon Burns (Conservative, Chelmsford)

I sent it.

Emily Thornberry (Labour, Islington South and Finsbury)

I understand from the heckling that the Minister may have sent it, and I am grateful to him for doing his boss’s job. It is a shame that his boss was not able to give us a fuller answer when he was giving evidence, which brings us back to one of our central charges about the re-committal of the Bill. Not only do the Government want to re-commit only the bits that they want to talk about, but they want to do it at such dazzling speed that not even the Secretary of State understands the Bill, and not even he is able to answer questions about it properly.

I would be grateful to hear from the Minister why new section 1(2) of the 2006 Act has been proposed. It seems to go against the reassurances that were given to the public and the national health service, and it seems to go against the understanding of the Future Forum, which felt that it had re-established the Secretary of State’s responsibility properly. As I said, either the difference in wording means nothing—in which case let us have the original clause back, as in the 2006 Act—or it means something. If it means something, please spell it out.

John Pugh (Liberal Democrat, Southport)

I suspect that this is likely to be a mirror image of the debate that we will have about competition, in which the Government will allege that the change in wording makes very little real difference. When we get on to presenting anti-competitive procedures as opposed to promoting competition, the Opposition will allege that the wording, although it seems a minor change—[ Interruption. ] I am sorry; I will get it right eventually. We will allege—I will allege, quite honestly—that the difference in wording is of enormous importance, and the Opposition will argue that it is not.

Liz Kendall (Labour, Leicester West)

I want to stick to this clause, but the hon. Gentleman will be aware that regulators stick closely to the words in the legislation. Nobody wants to get involved in a semantic discussion about words; we want to know what the effect will be, and that is particularly important for regulators. Does the hon. Gentleman agree?

John Pugh (Liberal Democrat, Southport)

Absolutely, and I will be concentrating on the words specifically.

The issue of legal accountability is being raised, and I briefly want to deal with that. Legal accountability in the NHS can mean a range of different things. I assume that we are discussing the legal accountability for securing a comprehensive health service. The legislation makes it absolutely clear that the buck stops with the Secretary of State. If it is not secured, he is legally responsible for that.

Other sorts of legal accountability, such as the failures of services from individual providers or commissioners, will presumably depend on the circumstances and whether the Secretary of State has any part in influencing their particular behaviour or whether that decision was up to the providers. Legal accountability is not exactly a red herring, but it is not the meat of the issue.

Political accountability has always been problematic. As was suggested earlier, any Secretary of State in the world would like to row away from tough decisions on health service configuration and put the responsibility somewhere else. Ultimately, though, however a Secretary of State phrases legislation, he never escapes accountability of one sort or another because he is the guy who holds all the controls over the health service and its legislation.

Owen Smith (Labour, Pontypridd)

Is that not the heart of what we are discussing? In this part of the legislation, the Secretary of State is trying to get away from being accountable and to put the duty to secure and provide the NHS at one stage removed from him, via the national commissioning board. That is why the words are important. That is why new clause 1 states

“so as to secure that services are provided”

as opposed to “secure and provide” originally. The actual meaning has not changed. The words have changed, but the meaning—to hand it off to a quango—is exactly the same.

John Pugh (Liberal Democrat, Southport)

If the hon. Gentleman allows me to continue, I will deal with his problem. When we had this debate in the first round, I thought that it was slightly synthetic. I was not clear about where people were coming from—even after the hon. Member for Islington South and Finsbury has spoken, I am still not entirely clear about that.

In answer to my question on Tuesday, the Secretary of State said that he did not want to get into a theological debate. This has the air of a theological debate, because we are arguing about words in a way that the public do not understand. All the objections to a particular clause will not fit on a banner.

Despite what I think was the original nature of the debate and despite the fact that, at first blush, I did not think that it was big issue, it is clear that it has been made an issue. It did not initially become an issue because of the Labour party, but rather because of Lord Owen’s and Baroness Williams’s raising the function of the Secretary of State specifically in an ordered and coherent fashion. Subsequently—we can trace this—people started to raise the issue themselves, and organisations that had not mentioned the issue, such as the British Medical Association, started to.

Fiona O'Donnell (Labour, East Lothian)

It is perhaps unsurprising that the Liberal Democrats should again try to steal the credit for challenging what is in the Bill. My hon. Friends raised the issue long before it seemed to appear. I pleased to hear the hon. Gentleman express concern for the ordinary patient on the street, their understanding of words and how important they think that they are. Will the hon. Gentleman help us by saying what difference the changes in the re-committed Bill will make to the ordinary patient?

John Pugh (Liberal Democrat, Southport)

There are many changes in the Bill, and I cannot talk—without being out of order, Mr Gale—about all of them. I will discuss clause 1 specifically, which has been the subject of a variety of e-mails that I have received. The e-mails have been surprisingly learned. An awful lot of people out there have legal counsel at their beck and call, and they present me with words that are scholarly in form and nature. I respond to every single one of them; I write back saying, “Given that the Government are putting the Secretary of State in a position where he has to secure a comprehensive health service and that there are amendments that say something different, can you tell me”—as the hon. Member for Pontypridd has said—“what is the practical difference between having one wording as opposed to another?”

So far—I will have to check my e-mail inbox; I think that I am allowed to during this debate—I have not had an answer from any of those people who sent me those learned e-mails, but I look for illumination. I have genuinely asked them what specific, practical difference they want the legislation to make. I am very happy to share any response with the Committee. I am convinced that this has to be treated seriously and that it cannot be dismissed as a legal quibble, if only because some very big hitters in the Lords, such as Lord Owen and Baroness Williams, will want to be satisfied on the point that they originally raised.

Liz Kendall (Labour, Leicester West)

I respectfully suggest that as we are discussing themes, as our Chair made clear at the beginning, we should be talking about the duty not only on the Secretary of State, but on the NHS commissioning boards. The point is that we are looking at the changes in all their responsibilities, not only the Secretary of State’s. People are concerned that what was the Secretary of State’s duty is worded for the commissioning board in the same way, and that will then go down to commissioning groups, which is the real concern. There will no longer be a national responsibility for comprehensive services; it will be up to individual commissioning groups.

I ask the hon. Gentleman to look at a GP on a board for the Leicester commissioning group, who has said that he wants to set out an explicit list of services that would be excluded from the NHS; I note that he was a former Conservative candidate for Bradford North. That is people’s real concern.

John Pugh (Liberal Democrat, Southport)

If that has the net effect that, in that area, a comprehensive health service is not secured, it is simply the job of the Secretary of State to ensure, by whatever means he can, that there is one. Usefully, I have been sent a list of the Secretary of State’s functions. I have not had the time to absorb them all yet, but I notice, rather reassuringly, that on the first page of the printout we were sent yesterday by the Secretary of State, there is the power

“to do anything calculated to facilitate or to be conducive or incidental to the discharge of a function under the Act.”

The Secretary of State, therefore, has the duty to secure a comprehensive health service in a particular area. If that does not happen, he can be asked to discharge that duty, and it says here that he has the power to do so.

I will seek a bit of common ground, if I may, because it is a consensual Committee and I am delighted not merely to serve under your chairmanship again, Mr Gale, but to see so many friendly faces around me.

Phil Wilson (Labour, Sedgefield)

Familiar faces, anyway. Don’t get too comfortable. [ Laughter.]

John Pugh (Liberal Democrat, Southport)

Everyone accepted after the first iteration of the Bill that it was not sufficient to say that the Secretary of State had a duty to promote a comprehensive health service. That was simply too weak an assertion, whatever it was intended to imply, because we do not want to run the risk of the Government turning around and saying, “We’ve done our best.” We actually want the Government to deliver what they say they will, which is a comprehensive health service.

That can be done in two ways. We could either have a clause that says to “provide or secure” a comprehensive health service, or we could have a clause that says “to secure” one. Those are the stark alternatives in front of us. I have seen all sorts of lawyers expound endlessly on that point, but there are dangers in listening to lawyers for too long because they can overcomplicate things.

There are two very clear, logical—not legal—points, which are absolutely beyond challenge. First, “secure” does not exclude “provide”. Secondly, if one fulfils the second variation of the Secretary of State’s duty—bar the one preferred by the Secretary of State “to secure”—it is a logical fact that one necessarily secures the first intention, of to “provide” or “secure”. It is not possible to do what the Secretary of State says, without also doing what the Government are asking him to do.

Emily Thornberry (Labour, Islington South and Finsbury)

If the hon. Gentleman’s analysis is right—

John Pugh (Liberal Democrat, Southport)

Oh, it is.

Emily Thornberry (Labour, Islington South and Finsbury)

I suggest that it is not. If it is right, why are the Government changing it? Section 1(2) of the 2006 Act states that the Secretary of State must

“provide or secure the provision of services in accordance with this Act.”

If the change means nothing, why are the Minister and the Secretary of State so tenaciously holding on to their new alternative? Why not just go back the 2006 Act, which has worked perfectly well? That is the question.

John Pugh (Liberal Democrat, Southport)

It is a question that I shall endeavour to answer explicitly. It is reasonable to ask what difference either assertion makes, and the subsequent question is why does one want to change the original assertion. There is a school of philosophy called pragmatism; I am not deviating altogether, here, Mr Gale.

Roger Gale (Conservative, North Thanet)

Or at all, I hope.

John Pugh (Liberal Democrat, Southport)

The school says that, to differentiate between the meaning of one statement and another, the best thing to do is look at their operational differences and the practical effects that they would have. The Americans would ask, “Where’s the beef?” Why would substituting one wording for another change things, and why is one wording preferred to another? To some extent, an element in me asks why the Secretary of State does not go for a quiet life, agree a wording that suggests what everybody thinks is suggested by their favourite form of wording, and include as many appropriate nouns and verbs as possible.

I think that there are two answers. There is a good answer, which I prefer, and there is another answer, which people might not be so comfortable with and which we need to talk about. The Secretary of State appears to be saying—and I can see why he is saying it—that “secure” better reflects what he will be doing. His preference and operational principle is that he wants to use a number of potent levers in managing the NHS, rather than directly provide everything within the NHS, because there is a dislike of micro-management. I can understand that. For about six or seven years, everybody in my constituency has been saying that they want a minor injuries unit for children. What we actually have, at the behest of the previous Secretary of State, are two Darzi clinics, one of which is a complete white elephant.

Emily Thornberry (Labour, Islington South and Finsbury)

The Secretary of State for Defence is not specifically responsible for deciding how many boots the Army should have; he is not supposed to make sure that they all fit and he does not put them on people’s feet. However, if the Army was sent to war without any boots, that would be his responsibility. It is not micro-management to expect him to be responsible for that.

John Pugh (Liberal Democrat, Southport)

I honestly do not think that Committees debating defence issues would argue for long about whether the Ministry of Defence should “secure” or “provide” that troops have boots, because they would not see any hope or significance in it. There is a legitimate debate about whether the Health Secretary’s role is described more appropriately by “provide” or “secure”. There is another debate to be had about the mechanics laid out by the Secretary of State and whether they are good enough.

The hon. Member for Pontypridd has raised the issue of whether the new regime gives the Secretary of State all the necessary levers to be able to secure a comprehensive health service. We can debate the mechanics and how likely they are to be successful.

Liz Kendall (Labour, Leicester West)

The point is that the Prime Minister and Deputy Prime Minister seemed to give a clear promise that they would replace the Bill’s original wording with the current duties of the Secretary of State under the 2006 Act, but they have not done that. People felt that they were going to get something that we now see is not going to happen, so they are asking why the Government are doing that. It is an issue of trust.

Perhaps I did not express this eloquently last time, but people believe that this is an attempt to push responsibility down to groups of people who will then seek to exclude groups of patients, because they want to balance the budgets and make sure that their practices make a sufficient amount of money. That is what Dr Teck Khong in Leicester has said that he wants to do. He wants explicitly to exclude services from NHS patients.

Roger Gale (Conservative, North Thanet)

Order. Chairmen normally allow slightly longer interventions in Committee than are allowed on the Floor of the House, but there is a difference between an intervention and a speech. We had better set the precedent now and try to keep the interventions reasonably short.

Liz Kendall (Labour, Leicester West)

I shall ask a very quick question. Does the hon. Gentleman back the commitment to return to the 2006 duties for the Secretary of State?

John Pugh (Liberal Democrat, Southport)

As long as the legal reality remains the same, I do not get tortured by particular forms of semantics. Can I illustrate the serious muddle that we have got into over this? It is not just us; it is people outside. On Tuesday, the British Medical Association passed a motion calling for the withdrawal of the Bill. The issue for the BMA was a change in the role of the Secretary of State—meaning, I suppose, that it wants the Secretary of State to have a more hands-on approach. Is that what hon. Members understand the BMA to want?

Tom Blenkinsop (Labour, Middlesbrough South and East Cleveland)

It was not just the BMA saying that. It was responding to a report written by the hon. Gentleman’s former colleague, Dr Evan Harris, which concluded:

“it appears that the new Bill will continue to propose abolition of the Secretary of State’s duty to provide health services in accordance with the Act”.

John Pugh (Liberal Democrat, Southport)

I do not want to go into the details of what my former colleague said. We have a difference of opinion about what the Bill does. He has acknowledged, quite fairly, that the BMA is concerned that the Secretary of State does not appear to have enough hands-on control and responsibility, but on page 3 of its representations on the original Bill, under the heading “Key areas of concern”, it stated:

“The BMA believes that the Secretary of State will have too much control over the NHS Commissioning Board; he/she will be able to make changes without consultation; he/she will be able to dictate how and which treatments and services consortia provide”.

To some extent, that answers the point made by the hon. Member for Leicester West. She said that that is precisely what would not happen, whereas the BMA says that it is precisely what would. We have to make our mind up on where the critique is coming from, and to make it in as fair a way as possible.

Liz Kendall (Labour, Leicester West)

There is a difference between who is responsible for providing a comprehensive service, and the BMA’s concerns—and mine—that the board gets the power to tell commissioning groups how often they have to meet.

John Pugh (Liberal Democrat, Southport)

I genuinely do not want to get into a battle with the BMA—I have a most congenial relationship with it—but I would like to see an element of intellectual consistency in its critique. According to an article published on 26 March headlined, “BMA presses for health changes”, the BMA was pressing for more independence of the NHS commissioning board. It was sceptical about the rhetoric to do with giving clinicians greater involvement with commissioning decisions, and feared the Bill would give sweeping powers over consortia, and give the Health Secretary too much control over the board. One might say that what the Secretary of State desires is an element of control without accountability. None the less, that was its accusation. It is on the record and it is indisputable.

Owen Smith (Labour, Pontypridd)

The hon. Gentleman cannot have his cake and eat it. A moment ago he was telling us that he was not persuaded that our original discussion on clause 1 was anything other than synthetic, and then he acknowledged that people were right to be concerned that the word “promote” was insufficient, and that it should be changed. He has therefore conceded that it was not synthetic, but a real debate. In this instance, irrespective of what the BMA has to say, and irrespective of any inconsistencies in its statements, we are not being inconsistent. Our concern is that the clause moves the Secretary of State’s duty to secure and provide a comprehensive service one step further away. That is why we are debating the point. The situation has not changed in this iteration of the clause; it has not changed with the words. It still passes things off to a quango.

John Pugh (Liberal Democrat, Southport)

There is quite a legitimate debate about how and to what extent the health service should be micro-managed, and we can have that debate when we come to other parts of the Bill. We are not debating that specifically; we are debating what the words in the Bill actually do, and the intent behind changing the wording. I am suggesting that the rationale for the change is to reflect better the operational principles of the NHS, and we can look at how far that involves micro-management, but it might not be that. To sketch a worst-case scenario, the change could reflect the view—I shall be absolutely honest about it—favoured by some right-wing think-tanks that the state simply should not provide health care. The view that the state should simply concentrate on funding and arranging it is a perfectly clear ideological view. If one wanted to, one could look at this legislation as preparatory to such a scenario, but I have to say that one could look at every previous health Bill produced by the Labour party as equally preparatory to that, so we cannot pursue that argument too far without difficulty. [ Interruption. ]

Roger Gale (Conservative, North Thanet)

Order. I am sorry to interrupt the hon. Gentleman. There are two Ministers on the Front Bench in addition to the Minister of State; if the Minister of State wants to have private conversations, I am afraid that even he must go out into the corridor with his officials.

John Pugh (Liberal Democrat, Southport)

I do not buy unnecessarily into conspiracy theories, but in a Commons debate I sketched the scenario that the Bill may have had two authors—a pragmatic Minister whom I call Dr Jekyll, and a right-wing ideologue whom I call Mr Hyde. Mr Hyde’s view of the world is perfectly coherent. It is not the right view, however; it is a deeply unpopular view and is unlikely to satisfy their Lordships— [ Interruption. ] If people think that it is popular, they should stand up and speak on its behalf. I do not think that that is the rationale behind the Bill—at least I hope not—because it would be opposed, and not only by people like myself, who believe that the state should continue to provide health care, if only because we cannot “secure” unless we retain and have that option.

Liz Kendall (Labour, Leicester West)

I am sure that the hon. Gentleman’s coalition partners are grateful that one of those partners is the Jekyll and one the Hyde, but with the greatest respect, this is his Government, too. He is not a bystander to decisions made by his Government about the future of our NHS.

John Pugh (Liberal Democrat, Southport)

That is exactly why I am here scrutinising the Bill and speaking as frankly and as openly as I can. The Government have a clear opportunity, which I hope they will take in future weeks, explicitly to point out that the state’s function as a provider of health care, as well as a funder and arranger of health care, is something they would endorse, first because we cannot genuinely “secure” unless we can also, to some extent, provide, and do so in collaboration and partnership with the private sector, and secondly because if that is the subtext—it certainly ought not to be, and I do not think it is—I do not think the Bill will survive the Lords.

Emily Thornberry (Labour, Islington South and Finsbury)

I am still uncertain whether the hon. Gentleman is minded to support the amendment. I hear what he says about the Secretary of State having an obligation to secure and to some extent provide, but that seems to be sitting on the fence. Our amendment says that the Secretary of State “must provide” and must “secure”. That is a difference, but the hon. Gentleman will not do the NHS or anyone else any good by sitting on the fence, so I am asking him to jump one way or the other.

John Pugh (Liberal Democrat, Southport)

I do not see any logical difference—any difference in effect—between one form of wording and the other. We can play an obstinate game of “Who has the best wording?”, but if Members sat down and thought about it, they would find it very difficult to pick out the practical difference between one form of wording and the other. I could provide a little further analysis if required. There is a practical difference in operational terms in setting the NHS up with an NHS commissioning board.

Emily Thornberry (Labour, Islington South and Finsbury)

To a certain extent, we are in agreement, because if there is no difference, why not go back to the National Health Service Act 2006? The Bill has become—more than anything else, possibly—about trust.

John Pugh (Liberal Democrat, Southport)

In effect, I have already answered that, and the Secretary of State has already answered it in about five different formats, basically saying that the provision as phrased at the moment does the job and adequately reflects the difference in structure in the NHS—not the difference in responsibility, but the difference in the operating framework of the NHS, which is encompassed in the legislation.

Hon. Members can decide that they do not want an NHS commissioning board and want to do things differently. There is an argument to be had about that, but once there is an NHS commissioning board, that necessarily leads us to re-examine the phrasing that we use when talking about the Secretary of State and to choose the most apt form. That is what has happened in this case.

I do think, though, that there is a distinction—it is not one that I have drawn myself so far, or, indeed, that I find myself capable of drawing—between what the state can provide and what the Secretary of State can provide. The Secretary of State may view himself as the state, but unless he is Louis XIV, he is not. For the benefit certainly of Liberal Democrat colleagues, the Government need to make it clear that the state continues with a provider role, or some sort of function.

That in some ways is implied by the legislation, because the Secretary of State has wide intervention powers, which is a provision function. He has a role in public health, which is a provision function. He has command over the capital programme and will continue to have it, as far as I know. That is a provision function. He does not therefore just continue, in a sort of half-life, to act as a back-stop in the case of failed provider functions. Theoretically, it is still possible under this legislation—the Secretary of State can correct me if I am wrong—for the Secretary of State to create another provider arm, one that is not in existence at the moment. We are talking about various functions. There is a whole pile of them in the information sent to me yesterday by the Secretary of State. Unfortunately, I have not had a chance to read that, but I will be sending him my photocopying bill. It is a huge 300-page document. If we look through it—I am sure that hon. Members will have studied it—we see that he has various functions apropos of the provision of health care, as well as arranging for health care to happen.

In consequence, there is very little difference, or rather there is no difference—I put it as strongly as that—between the logical implication of one wording and the logical implication of the other. It would be great if there could be a consensual view on which is the most elegant phrasing, but that is what we are talking about now, not an issue of profound and important substance.

Emily Thornberry (Labour, Islington South and Finsbury)

On a point of order, Mr Gale. May I seek your guidance? I appreciate that we are debating by theme, but I wish to speak to amendment 227 to clause 3, and to new clause 2. Should I speak now, or after the Minister has responded to clause 1 stand part?

Roger Gale (Conservative, North Thanet)

Let me try to clarify the situation again for the benefit of everyone concerned. We are at the moment debating amendment 1 to clause 1, with which we are taking the stand part debate, the debate on amendment 227 and the debate on the Government amendments and new clauses on the amendment paper. As I am on my feet, and without wishing to give hon. Members a master-class in procedure, let me say this. A clause stand part debate is in the gift of the man or woman in the Chair. Ordinarily, if it takes place at all, it takes place at the end of the debate on the amendments. It is like a Third Reading debate, in which one asks, “Is this still a good idea in principle, and should it remain in the Bill?”

If the Chairman feels that the matters arising from the clause have been sufficiently debated in the course of dealing with everything else, he has an absolute right to say, “I’m not having a clause stand part debate,” and to put the clause before the Committee for a decision, and a vote if necessary. Some Chairmen—I am one of them—take a slightly more relaxed view and say, “You can have a clause stand part debate at the beginning or at the end, but you can’t have both,” so it is up to the Committee to decide what it wants to debate and when.

The reason why we have included the clause stand part debate in this grouping is that it is the first opportunity that all members of the Committee have had to have an initial skirmish around what we are going to do over the next few days and weeks. It seemed to me—I hope that the Committee agrees—that it was right to create an opportunity to have a slightly broader debate than might otherwise be permitted. I make that point because I would not want hon. Members to think that they will get away with this every day of our remaining sittings. When Dr Pugh has finished his comments—

John Pugh (Liberal Democrat, Southport)

I have finished, Mr Gale.

Roger Gale (Conservative, North Thanet)

Then the hon. Member for Islington South and Finsbury and other hon. Members will now have the opportunity to rise and be called, and may speak properly and in order to any of the matters currently under discussion. The hon. Lady has already spoken once; do any other hon. Members want to rise before I call her?

Debbie Abrahams (Labour, Oldham East and Saddleworth)

I want to reiterate many of the points that my hon. Friends have made. The issue is definitely one of trust, and has probably been the biggest source of concern among the public. There were 300,000 signatories to the 38 Degrees survey. During this re-committed Public Bill Committee I am still receiving correspondence asking particularly for scrutiny of the clauses relating to the founding principles of the NHS. I understand what the hon. Member for Southport said about semantics and words. The issue is about trust, and if there is no difference, why change the words? The response to the Future Forum report is absolutely clear, so why allow ambiguity and concerns to be raised?

The Government may argue that they are changing the words because they want some distance between delivery and politics, but that is not a significant argument. The Secretary of State will still have responsibility for appointing members to different boards, and will continue to have political control, so the argument does not stand up. The way in which it has been couched does not reassure me or the public that the original principles of the NHS will be restored.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The hon. Lady refers to restoring the principles of the NHS. Does she not accept that as the Committee proceeds with its deliberations we will consider amendments that extend those principles by requiring the NHS commissioning board actively to promote the NHS constitution?

Debbie Abrahams (Labour, Oldham East and Saddleworth)

That is why it is so confusing. It is confusing that the Government are choosing to change the words and leave the language so open, yet in other parts they say that they are strengthening it. Why change the words and let the matter be open to question?

Liz Kendall (Labour, Leicester West)

Does my hon. Friend agree that it is a pity that the Government did not accept our amendments suggesting that the national commissioning board promote the NHS constitution? It is welcome that they are talking about it now, but they refused to do so earlier, when they said that that was not necessary. Why should we trust them now?

Debbie Abrahams (Labour, Oldham East and Saddleworth)

That is a valid point, and I agree with my hon. Friend. I return to proposed new section 1(3) in new clause 1. There seems to be ambiguity about charging.

Simon Burns (Conservative, Chelmsford)

Oh no! That is cheap.

Debbie Abrahams (Labour, Oldham East and Saddleworth)

I am sorry, but there is. Will there be an opportunity for bonus payments to be made to GP clinical commissioning groups?

Simon Burns (Conservative, Chelmsford)

May I say that it is the height of irresponsibility to try to set a hare running when it does not exist? There is no intention, and there never has been, for the Government to change their core belief about the NHS—a belief that the hon. Lady and I share—which is that it should be free at the point of use for all who are eligible to use it. All we have done is repeat the language that her Government used in the 2006 Act.

Debbie Abrahams (Labour, Oldham East and Saddleworth)

I thank the Minister for the point, but why open it up for criticism again? It is not clear in this new section of new clause 1 that that is the intention.

Simon Burns (Conservative, Chelmsford)

The answer to the hon. Lady’s question is, if we had not included it as per what was in the 2006 Act, she would be making a speech saying that we are about to bring in charges.

Debbie Abrahams (Labour, Oldham East and Saddleworth)

I am sorry. Were you directing those remarks to me?

Simon Burns (Conservative, Chelmsford)

Yes, I was.

Debbie Abrahams (Labour, Oldham East and Saddleworth)

I could not tell.

Tom Blenkinsop (Labour, Middlesbrough South and East Cleveland)

As ever, it is a pleasure to serve under your chairmanship, Mr Gale. I have just a few brief comments about elements of clause stand part.

In the previous Bill Committee, Government Members wanted to get rid of strategic health authorities, yet new clause 2 states:

“The Secretary of State must keep under review the effectiveness of the exercise by the bodies mentioned in subsection (2)”.

Subsection (2) refers to the board, Monitor, the Care Quality Commission, the National Institute for Health and Care Excellence, the Health and Social Care Information Centre and special health authorities. What is going on? Will the Minister give us a quick response on that element? There is a partial restoration of the original clause, but it does not stipulate on what the obligation to provide is premised or based.

Simon Burns (Conservative, Chelmsford)

I shall seek to answer the first part of the hon. Gentleman’s question, but will he just clarify something? Was he talking about special health authorities or strategic health authorities?

Tom Blenkinsop (Labour, Middlesbrough South and East Cleveland)

What will the substantive difference be between strategic health authorities and special health authorities?

Simon Burns (Conservative, Chelmsford)

The difference between a strategic and a special health authority is that strategic health authorities are, under the current structures, the regional health authority bodies that supervise—keep an eye on—PCTs and so on, whereas special health authorities are by their nature special; they include Rampton, Broadmoor and Ashworth near Liverpool. Special health authorities can act as a vehicle for organisations that have a temporary basis within the NHS to perform a specific function, but not a strategic health authority function.

Tom Blenkinsop (Labour, Middlesbrough South and East Cleveland)

I thank the Minister for providing that clarification.

On the clause stand part debate and the obligation to provide—whether that is with the new national commissioning board or the Secretary of State—the Committee is asking where the safety net structure is and for clarification on the safety net. Will it be with the national commissioning board, with the Secretary of State, or with each consortium? In terms of legal culpability, where can the patient go to for a response on the delivery of services?

Labour Members are looking for political accountability. If we consider the Southern Cross situation, the Department of Health is saying that that is a purely commercial matter. The hon. Member for Southport mentioned intent; at the moment, Labour Members believe that the intent is to effect a fundamental shift away from the Secretary of State for Health on such matters. Under other parts of the Bill that implement provisions of the Enterprise Act 2002, the Secretary of State for Business, Innovation and Skills will respond, for example, on the Southern Cross situation, rather than the Secretary of State for Health. That suggests an element of intent.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The hon. Gentleman is making some interesting points. Will he confirm that currently no statute places on a Secretary of State, whether for local government or for the health service, an obligation to provide a comprehensive social care system?

Tom Blenkinsop (Labour, Middlesbrough South and East Cleveland)

The Minister is correct, of course, but the Department of Health said that it was purely a commercial matter and that the Secretary of State for Business, Innovation and Skills was to deliver the Government’s response. I would argue that something more than a statement saying that it was purely a commercial matter might have been more appropriate from the Department of Health. I am talking about intent. Government Members are talking about the Government’s intent. This half-usage of the 2006 Act wording suggests intent.

Fiona O'Donnell (Labour, East Lothian)

It is a pleasure, Mr Gale, to serve on my first Bill Committee under your chairmanship. I appreciate all the guidance that you have given on matters as far ranging as the consumption of hot beverages and the use of electronic devices, and I hope that the busy thumbs that I see on the Government Benches are skimming through messages and reading them and not contravening your direction.

May I make an observation about my first experience of a Bill Committee? I feel as though I am taking part in a not so funny edition of the Radio 4 programme “Just a Minute”, so I shall try to keep my remarks brief, and without repetition, hesitation or deviation. I have waited 51 years to speak for the first time in favour of an amendment to a Government Bill. It surprises me that a Secretary of State who, more than any other, speaks about how long he has waited for this job should seek to change the responsibility and accountability that the post brings with it.

My other concern is about the words. I have said previously that I am really interested in what the changes mean for patients. I was disappointed to learn from Professor Field that many of the changes make no difference whatever. It worries me that Ministers and Government Members have spent longer looking at the thesaurus than considering the responses from the many organisations, staff and patients that have raised concerns about clause 1.

The hon. Member for Southport spoke about the new provision not making a difference, so I ask again the question that we have asked so many times: in that case, why change it? This is an opportunity for a Government who said that they were pausing, listening and reflecting to give something back to those organisations. They said that it would cost them nothing and that it would make no difference, so why not make that gesture of good will and reassure patients and organisations that the Government are committed to the NHS? The Government love the NHS, as the Prime Minister often says, and he is often helpful in directing his Secretary of State, but he appears not to have been successful in this instance.

Rather than hoping that the Government intend nothing sinister or damaging to the NHS, will the hon. Member for Southport not support our amendment? I am pleased to know that hope is still alive in the coalition; will he not take the safety position but instead vote with the Opposition?

John Pugh (Liberal Democrat, Southport)

I do not want to be lured into a debate about semantics, but I cannot help noting that the 2006 Act, which was passed by the Labour Government, changed the wording of the National Health Service Act 1946 from “effective provision of services” to “provision of services”. We could have a huge debate about whether the public would be satisfied with ineffective services, but we accepted Labour’s assurance that that was not what they were trying to do. They said that the change in wording did not amount to anything, and asked why should a Secretary of State want to change things? Undeniably, “effective” was removed by the 2006 Act. There could be a conspiracy theory about the Labour party wishing to deliver incompetent services.

Fiona O'Donnell (Labour, East Lothian)

The hon. Gentleman is perfectly free to table his own amendment if he wishes to insert “effective”. Perhaps the Liberal Democrats, or whatever they were called back then—perhaps they were Whigs; I am not sure—and the Conservatives trusted the founding fathers of the NHS always to have its best interests at heart, but if he wants to leave nothing to chance he should support the amendment. This is a very different Bill—one that creates many layers of quangos, commissioning boards, groups and consortia. That is why we value the amendment.

I have not managed to speak in quite 60 seconds, Mr Gale, but I hope that Members will take the opportunity, even if they see it only as a gesture or semantics, to reassure those organisations and the patients that the NHS is safe in their hands.

Emily Thornberry (Labour, Islington South and Finsbury)

I hope that I speak on behalf of the whole Committee when I say that because of the huge talent that is clearly displayed on the Opposition Back Benches we look forward to the next few weeks—[ Interruption. ] I appreciate that the Minister might find Opposition Members provoking, and that he might find it difficult not to bellow from his seat when he listens to them, but they certainly speak a great deal of sense.

New clause 2 gives the Secretary of State a duty to keep health service functions under review. It mentions various bodies, including the board, Monitor, the Care Quality Commission and the National Institute for Health and Care Excellence. I again refer Members to the evidence from the British Medical Association, which pointed out that under the unamended schedule 1, the Secretary of State will continue to have the power to appoint all non-executive members of the national commissioning board. If the Secretary of State

“must keep under review the effectiveness of the exercise by the bodies mentioned in proposed new subsection (2) of functions in relation to the health service in England”,

he can presumably keep the board under review very effectively if he is appointing all its members. Given how little time we have had to consider the re-committed Bill, will the Minister give us some information about whether the Secretary of State will also have the power to appoint all board members of the other bodies mentioned in the proposed new subsection? Such a power would have an effect on the role that the Secretary of State was able to play.

I turn to amendment 227, which I have not been able to find in the Public Bill Committee note.

Roger Gale (Conservative, North Thanet)

It is at the top of page 140.

Emily Thornberry (Labour, Islington South and Finsbury)

Thank you. Perhaps the problem is that I do not have a page 140. [ Interruption. ] I have just been passed one. Thank you. This is a simple amendment. Members might remember that in the previous Bill Committee, there was an extensive debate on clause 3, which is about the Secretary of State’s duty in relation to reducing inequalities. I do not intend to go through the arguments again, but anyone reading today’s proceedings could perhaps do so with column 296 of Hansard from 17 February 2011 also open. The amendment would take out “have regard to the need to”, and I shall explain why.

In exercising functions in relation to the health service, the Secretary of State will have to reduce inequalities between the people of England. If the Bill works, if it is everything that the Prime Minister seems to believe it is, if it does everything that the coalition believes that it will, and if the Opposition, the national health service and the public are wrong, there is no problem with agreeing to the amendment. If the Bill works and the health service is improved, we should have greater equality of both access and outcomes within the NHS. Presumably we all want that.

If the Bill will do its job and has been worth the blood, sweat and tears, surely the Government parties must be sufficiently confident to accept that what we need is not for the Secretary of State merely to “have regard to” the need to reduce inequalities, but to know that by passing the Bill he actually will be reducing inequalities. Why not take out the weasel words and go straight for, “the Secretary of State must reduce inequalities between the people of England”? That gives the Secretary of State a clear instruction from us that whether or not the Bill works, his job is to reduce inequalities, which surely is the purpose of the national health service.

Roger Gale (Conservative, North Thanet)

Good afternoon, ladies and gentlemen. The termination time for the groups of amendments and clauses under discussion today is 6 o’clock. I shall be minded to suspend the Committee for about 20 minutes at 4 o’clock, unless it becomes apparent by then that we are within 15 or 20 minutes of completing the whole sitting, in which case we will sit right through. However, I do not believe that it is right to ask the staff to sit for more than three hours without a break. I hope that that will be acceptable.

Roger Gale (Conservative, North Thanet)

I remind the Committee that with this it will be convenient to discuss the following:

Clause stand part.

Amendment 227, in clause 3, page 3, line 5, leave out from ‘must’ to ‘reduce’.

Government amendments 55 and 56.

Government new clause 1—Secretary of State’s duty to promote comprehensive health service.

Government new clause 2—Secretary of State’s duty to keep health service functions under review.

Emily Thornberry (Labour, Islington South and Finsbury)

Before lunch, I was speaking to new clause 2 and amendment 227. I have finished the main points that I wanted to make. Some of my hon. Friends may wish to say more, particularly on the Secretary of State’s duty to reduce inequalities under clause 3, but in the interests of brevity, I refer whomever might be reading the report of this debate to the comments that I made in previous debates on equalities.

Having prayed in aid the previous debates, I have some additional points to make. There is without doubt huge concern about the Secretary of State’s duty in relation to the health service—indeed, it is one of the focuses of concern. I believe that hon. Members on both sides of the Committee have been contacted by an organisation that has been collecting a massive number of signatures—now more than 400,000—to a petition. The first thing to which it refers, as I believe hon. Members know because they have all received a number of e-mails about this, is the concern about the ongoing duty of the Secretary of State in relation to the health service. In summary, if a change needs to be made to the original Act—the National Health Service Act 2006—in relation to the Secretary of State’s duties, we need a clear reason why, and that reason needs to be one that we can explain to the 400,000 or so people who have expressed concern through the online petition.

This cannot be brushed under the carpet. It is a matter of trust. It is hugely important and has ramifications throughout the Bill. As I have already said, we regret hugely the fact that we are unable to debate the entire Bill in the light of the ongoing duty of the Secretary of State, but I have made the point and I do not intend to labour it; nor do I think that I would be able to improve it by simple repetition. On amendment 227 and the duty to reduce inequalities, let us make the measure clear and straightforward and simply give the Secretary of State a duty to reduce inequalities. If the Bill does what the Government say it will, that should not be a problem.

On new clause 2, I have raised the appointment of the board by the Secretary of State, which is not within the Nolan rules. I want confirmation of whether there are any Government amendments relating to the appointment of members of the boards of all the other bodies listed in the new clause, and whether they will be appointed under the Nolan rules. Obviously, if they are, the question arises of why they are appointed under the Nolan rules and the national commissioning board is not. Perhaps the Minister of State could explain that to us.

Grahame Morris (Labour, Easington)

I seek your advice, Mr Gale. Is this the clause 1 stand part debate, or are we dealing specifically with amendment 227?

Roger Gale (Conservative, North Thanet)

The entire group of amendments is under debate. I am aware that the hon. Gentleman had to be at a meeting earlier, so although I appreciate that he may not have heard the whole debate, if he wishes to speak, I am happy to call him.

Grahame Morris (Labour, Easington)

I am grateful, Mr Gale. The Minister is looking perplexed, but I did indicate earlier that I wished to speak.

Simon Burns (Conservative, Chelmsford)

I look forward to hearing you.

Grahame Morris (Labour, Easington)

Other hon. Members have highlighted in this debate and on previous occasions, not least in the initial exchanges between my hon. Friend the Member for Oldham East and Saddleworth and the Secretary of State in the initial consideration of the Bill, the dubious relationship between what the Government say and what the Bill actually does. During his first attendance at an evidence session, the right hon. Gentleman was asked by my hon. Friend if he could explain why he decided to repeal the duty placed on the Secretary of State to provide a comprehensive health service. His reply was,

“I have not… Clause 1 effectively reproduces the 1948 duty on the Secretary of State and it applies it to the other organisations through the rest of the Bill.”

He went on to say,

“It is in the original language. It is reproduced the same way.”––[Official Report, Health and Social Care Public Bill Committee, 10 February 2011; c. 166, Q402-04.]

The duty of the Secretary of State under the National Health Service Act 2006, repeating the language of section 1 of the National Health Service 1946, is, for the purpose of promotion of a comprehensive health service, to

“provide or secure the provision of services in accordance with this Act”.

Clause 1 of the original Bill replaced that duty—the point made by my hon. Friend that the Secretary of State sought to push to one side. It provided instead that the Secretary of State

“in exercising functions in relation to a body mentioned in subsection (2A), must act with a view to securing the provision of services for the purposes of the health service in accordance with this Act.”

For the information of the Committee, new subsection (2A) lists the NHS commissioning board, the commissioning consortia, which we are now calling commissioning groups, and local health authorities in respect of their public health functions.

Our concerns about the clause, voiced in the original Committee, were that the Secretary of State sought to reduce the accountability of his role in the delivery of health services. That was vigorously denied. The recommendations of the NHS Future Forum are clear:

“The NHS should be freed from day-to-day political interference but the Secretary of State must remain ultimately accountable for the National Health Service. The Bill should be amended to make this clear.”

The clause establishes an NHS commissioning board, the commissioning groups as well as passes responsibilities to local authorities for public health. The importance of the clause is the way in which the Secretary of State’s responsibilities would change. He would lose his current duty to provide or secure the provision of services for the purpose of the health service. Instead, the new duty on the Secretary of State is the simple promotion of the comprehensive health service, which is an important and fundamental difference of approach. [Interruption.] The hon. Member for Southport says it is the same thing, but in fact it is quite a fundamental difference, placing a direct responsibility or duty on the Secretary of State, which is what the Future Forum indicated the Government should do.

Fiona O'Donnell (Labour, East Lothian)

My hon. Friend and I share the experience of being new Members, which is perhaps why we are so perplexed. Does he share my concern that the Government are seeking to amend a piece of legislation while saying that that will make no difference to it?

Grahame Morris (Labour, Easington)

That is spot on the heart of the matter. Time and again, our interpretation has been different and Ministers have said that we misunderstood the intent, but the NHS Future Forum, other organisations and, indeed, the Liberal Democrats have indicated that this is a major concern. It is, therefore, reasonable to highlight it.

John Pugh (Liberal Democrat, Southport)

I might be wrong, but when the hon. Gentleman referred to the Bill as previously drafted, I think he said that the Government’s intention was to put in the clause only a reference to “promoting”, yet new clause 1 uses the verb “secure” twice. The hon. Gentleman should speak to the new clause, rather than to a clause that will be altered however we vote.

Grahame Morris (Labour, Easington)

If the hon. Gentleman will bear with me, I am seeking to expose or identify the original arguments made by the Ministers. They are now moving away from that position and accepting the arguments made by Opposition members of the Committee, who, to be fair, were the first to discover that the emperor had no clothes. It seems to have been generally accepted that that is the case. A significant bone of contention is that Opposition members of the Committee believe that an elected official—a Minister—should be accountable for the performance of the NHS.

Nick de Bois (Conservative, Enfield North)

On a point of order, Mr Gale. Perhaps you can give me some guidance. We have tight time limits and want to give due scrutiny to the Bill, so is it right for prepared texts to be used when speaking?

Roger Gale (Conservative, North Thanet)

That is not strictly a point of order, but I will seek to answer it. The Speaker has indicated, and the traditions of the House suggest, that wherever possible Members should speak from notes rather than from prepared speeches and that they should most certainly not read speeches prepared by any outside organisation. However, I have no indication at present that that is what is taking place.

Grahame Morris (Labour, Easington)

I am grateful to you, Mr Gale. Many of the issues are highly technical. I am not absolutely familiar with the detail of the NHS Future Forum report, so I am afraid that I need to refer to a written text. It is important that the issues are placed accurately on the record.

Karl Turner (Labour, Kingston upon Hull East)

On a point of order, Mr Gale. I find it outrageous that Government Back Benchers should make such points. I have spent many days and weeks on this Committee, and have heard the Minister read prepared speeches into the record, with no criticism from either side of the Committee. I know that my hon. Friend the Member for Easington is not reading a prepared speech, but even if he was, it would be his own work, not that of an outside body.

Roger Gale (Conservative, North Thanet)

I listened very carefully to the question that was put to me and I answered it. I do not recall any suggestion being made, and I indicated that I had not seen any evidence to suggest, that the hon. Member for Easington was reading a prepared speech. I answered the question that I was asked. I have ruled on the matter. I think that we had better leave it there.

Grahame Morris (Labour, Easington)

I am grateful to you, Mr Gale. We have identified a contentious point. An elected official—a Minister in this case—should be held accountable for the performance of the NHS, and the Secretary of State should exercise responsibility for the provision of high-quality health care in a comprehensive national health service.

Until now, the Secretary of State has been directly responsible for securing the provision of all health services, as set out in the National Health Service Act 2006. If my memory serves me correctly, the disagreement with Opposition members of the Committee was based on the difference, which the hon. Member for Southport has just indicated, between whether the Government were delegating or conferring on other bodies the specific duties that were previously placed on the Secretary of State—essentially, delegating his responsibilities.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

I am following the hon. Gentleman’s argument and the case that he is making. The hon. Member for Islington South and Finsbury made the point that it is important for the Secretary of State to have a duty to reduce health care inequalities. Is the hon. Gentleman disappointed that such a duty was not put into legislation by the previous Government during their 13 years in power?

Grahame Morris (Labour, Easington)

Mr Gale, I will confine my remarks to the issue in hand. I have some specific points in relation to health inequalities, but to move things along a little more speedily, I will not refer to them.

The Secretary of State should have a responsibility for a truly comprehensive national health service, as was previously the case.

Simon Burns (Conservative, Chelmsford)

It still is.

Grahame Morris (Labour, Easington)

The Minister says that, but our concern is that under the original Bill, those functions were delegated to other bodies—the NHS commissioning board, local commissioning groups and other organisations. The NHS Future Forum recommended that that was not an appropriate course of action, which is a view that was first highlighted by the Labour party.

Simon Burns (Conservative, Chelmsford)

I am not sure whether the hon. Gentleman fully appreciated what the Future Forum said about this. Let me help him by reading what it said in its “Patient Involvement and Public Accountability” report. It says:

“We have heard concern from various quarters that the Secretary of State for Health will no longer have a responsibility or duty in respect of promoting a comprehensive health care service… We understand that this is not in fact the case as far as the proposed Bill is concerned.”

It continues:

“The Secretary of State will remain ultimately responsible for improving the health of the nation”.

Grahame Morris (Labour, Easington)

I am aware of what the Future Forum said. Indeed, we took evidence from representatives of the forum and questioned them at greater length in the Select Committee on Health, but I question some of the responses of Professor Steve Field on the basis on which he arrives at some of his contentions, not least in relation to taking independent legal advice. Under questioning, Professor Field was asked whether European competition law applied and whether the Future Forum had taken independent legal advice. His response was that the only legal advice that it had taken was from the solicitors from the Department for Health. I can cite other examples of inconsistencies in Professor Field’s evidence to this Committee and the Health Committee.

Emily Thornberry (Labour, Islington South and Finsbury)

I do not know whether my hon. Friend is aware that an application was made by Opposition Members to have an expert in international competition law called to give evidence, but that was voted down by the Government.

Grahame Morris (Labour, Easington)

Yes, I was aware of that. It is disgraceful that the Government were not prepared to clarify this issue and have some independent legal advice.

John Pugh rose—

Dan Byles (North Warwickshire) (Con) rose—

Grahame Morris (Labour, Easington)

I am happy to give way, but I am being berated for not making enough progress.

Dan Byles (Conservative, North Warwickshire)

I am a little concerned about the hon. Gentleman’s comments about the apparent inconsistencies in Professor Field’s evidence. Are you accusing him of incompetence or of misleading us? What exactly are you saying about Professor Field?

Roger Gale (Conservative, North Thanet)

Order. The hon. Gentleman must address his remarks through the Chair. I am not commenting upon it at all.

Dan Byles (Conservative, North Warwickshire)

I apologise, Mr Gale.

Grahame Morris (Labour, Easington)

I am grateful to the hon. Gentleman for raising that because my observations are based upon fact. It calls into question the reliability of Professor Field’s evidence.

Fiona O'Donnell (Labour, East Lothian)

Will my hon. Friend give way?

Grahame Morris (Labour, Easington)

I will in a moment. When Professor Field came before the Health Committee in his capacity as one of the leaders of the Future Forum, he was asked about its role and independence. He was asked whether the Future Forum had taken representations from the trade unions and the staff involved in the health service as legitimate stakeholders in the exercise and whether they had raised with him their concerns about the fragmentation of the service caused by implementation of the proposals and the threats to national bargaining on pay and conditions. He replied that no such representations had been received, yet the written evidence that this Committee received on Tuesday from the trade union representatives Professor Field consulted states that they had made that very point. To my mind and that of many other people, hat calls into question the reliability of Professor Field’s evidence. I do not know if he is a reliable witness on that basis. He said one thing to the Select Committee and something completely different to the Bill Committee, which was directly contradicted by a stakeholder group with whom he had had dealings. That is a simple point.

Fiona O'Donnell (Labour, East Lothian)

I am sure my hon. Friend will remember that on Tuesday Professor Field also acknowledged that he had omitted caps on private patients in foundation trust hospitals from the report.

Grahame Morris (Labour, Easington)

That is a relevant point when the whole basis of this Committee’s deliberations is the recommendations of the Future Forum report. Many of the issues that have been raised have not been taken up either as clauses referred back or as Government amendments. There is an issue of consistency and fairness in this.

Returning to the clause stand part debate, we were dealing with delegating or conferring duties from the Secretary of State and on to other bodies. It was the Minister or the Secretary of State, I think, who in their evidence coined the expression that when the bedpan is dropped the noise should be heard in Whitehall.

Simon Burns (Conservative, Chelmsford)

I rise to help the hon. Gentleman. That is actually a quote from his hero, Nye Bevan.

Owen Smith (Labour, Pontypridd)

He is my great hero and the bedpan in question was in Tredegar.

Grahame Morris (Labour, Easington)

Anyway, it was referred to in this Committee as a way of saying that the Secretary of State should be in tune with problems and issues in the health service.

I accept that, under current arrangements, it is only possible for the Secretary of State to do that. My hon. Friend the Member for Islington South and Finsbury made an excellent point this morning about the Secretary of State for Defence not being responsible for equipping individual soldiers with items of kit—army boots were given as an example—but is ultimately responsible for ensuring that the Army is properly equipped and able to deal with the tasks that it faces. Similarly, I am not suggesting that the Secretary of State should be hands-on and micro-manage, as Government Members often say, every single issue. I accept that he cannot do that because, at the moment, those functions are exercised through structures such as the strategic health authorities and primary care trusts, which will not exist under the new arrangements. It is therefore all the more important that the duty is conferred upon an accountable individual. Despite the delegation under the current arrangements, it is quite clear that the SHAs and the PCTs remain under the duty of care of the Secretary of State, who—this is the key point—remains accountable to Parliament for the provision of services.

Despite the Secretary of State’s denials to the Committee, the Opposition have been clear from the very start that the duties outlined in the Bill would no longer be delegated and that direct responsibility would be taken away from the Secretary of State through the modified clause 1. It is also clear that direct responsibility for securing the provision of health services would be conferred on the bodies that I referred to earlier—the NHS commissioning board and the local commissioning groups—and that provision is set out explicitly in clauses 5 and 6. We will deal with those later, so I will not say any more about that.

Government new clause 1 changes the role of the Secretary of State, but it is disingenuous to pretend that the original duty on the Secretary of State has been fully applied. As I have said, these concerns have been raised by several organisations and, indeed, by the Liberal Democrats as one of the three key issues. The hon. Member for Southport mentioned the number of e-mails that he has received, and I have received a similar number, including some that also highlighted the duties that are to be placed on the Secretary of State. New clause 1 reiterates the

“duty to promote comprehensive health services”

and, although it uses the original language, it adds a key point:

“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.”

We have an ever more complicated set of intertwining and cross-cutting stipulations about who is responsible for what.

I found the grouping of amendments slightly confusing this morning, Mr Gale, but I now appreciate that we are dealing with similar themes. I shall refer briefly to clause 5 because it covers some of the same elements. That clause creates a new section 1D of the 2006 Act, whose wording is similar to clause 1, giving the NHS commissioning board its general duty. This group of amendments also affects clause 5, but new section 1D(2) remains, meaning that the board will be concurrently bound with the Secretary of State to the duty in section 1(1) of the 2006 Act, which is to promote comprehensive health services—except for public health, which is going to local government. However, where the duty on the Secretary of State is to act

“with a view to securing the provision of services”,

that has now been changed, and it remains applicable to the board.

Government amendment 55 outlines the board’s duty to

“exercise the functions conferred upon it by this Act in relation to the commissioning consortia so as to secure that services are provided for those purposes in accordance with this Act.”

However, the changes to section 3 of the 2006 Act, which is the successor to section 3 of the 1946 Act, remain intact, and it currently states that the Secretary of State

“must provide throughout England, to such extent as he considers necessary to meet all reasonable requirements”.

For the Committee’s information, those requirements are:

“ (a) hospital accommodation,

(b) other accommodation for the purpose of any service provided under this Act,

(c) medical, dental, ophthalmic, nursing and ambulance services,

(d) such other services or facilities for the care of pregnant women, women who are breastfeeding and young children as he considers are appropriate as part of the health service,

(e) such other services or facilities for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness as he considers are appropriate as part of the health service,

(f) such other services or facilities as are required for the diagnosis and treatment of illness.”

As for the issue of consistency between clause 1 and some of the other clauses where similar changes would make sense, clause 9, which we will come to later, replaces the duty on the Secretary of State that we have just been talking about with a duty on the commissioning consortium. As the Minister kindly pointed out this morning, we have changed the nomenclature, so that the commissioning consortium

“must arrange for the provision of the following to such extent as it considers necessary to meet the reasonable requirements of the persons for whom it has responsibility”.

Again, on ensuring consistency and a similar approach throughout all the clauses, clause 10 will add to the 2006 Act new section 3A, which provides that consortia

“may arrange for the provision of such services”—

Roger Gale (Conservative, North Thanet)

Order. When the hon. Gentleman got to clause 5, he was referring to Government amendments, which was fine and in order. Clauses 9 and 10 will be considered through other amendments, so I trust that he will not seek to speak on the same subject when we reach those clauses.

Grahame Morris (Labour, Easington)

I accept that, Mr Gale. Overall, the Government amendments go some way towards restoring the duty on the Secretary of State. I acknowledge that, but I regret that the Government were not prepared to admit that initially when Opposition Members made exactly the same arguments in the original Bill Committee. As I say, the Government’s amendments go some way towards restoring the duty on the Secretary of State, and apply it to the commissioning board with regard to securing the provision of services, but only in so far as it is exercising functions conferred by the Bill. Indeed, the Bill as amended by clause 1 gives the commissioning board a duty to ensure that services are provided through its functions in relation to the local consortia, but specific services are left to local determination.

Despite the Government’s amendments, the Bill as a whole still considerably weakens the Secretary of State’s duties and places the most significant weight of duty at the national level, with the NHS commissioning board. If there is not an accountable individual—a politician in the form of the Secretary of State—and those duties are exercised by the national NHS commissioning board, Opposition Members will have concerns about accountability issues. We have already been told that we should refer to clinical commissioning groups, rather than commissioning consortia. The legal framework places the bulk of power with clinical commissioning groups, which will be able to determine what services are provided on the NHS to a far greater extent than local commissioners ever could under existing arrangements.

Simon Burns (Conservative, Chelmsford)

It has been extremely useful to be able to talk this morning and this afternoon about the Secretary of State’s duty to promote a comprehensive health service. That is an important point, and I am pleased to have the chance to explain to the Committee the changes that we have made to clause 1, and the reasons for the changes, particularly in clause 1(2).

The Government’s amendments respond to the Future Forum’s recommendation that

“the Secretary of State’s responsibility for promoting a comprehensive health service should be made clearer to the public in order to allay any concerns and remove any confusion”.

The Future Forum was right to point out that the drafting of the Bill is not clear enough, and we are amending the wording to remove any doubt that the Secretary of State remains ultimately accountable for the NHS.

We intend clause 1 not to stand part of the Bill, and in its place we propose new clause 1. Unlike clause 1, new clause 1 sets out section 1 of the 2006 Act, as revised, in its entirety. Section 1(1) of the 2006 Act remains unchanged since the founding National Health Service Act 1946. The provision is identical to the wording in the 2006 Act, including the words:

“The Secretary of State must continue the promotion in England of a comprehensive health service”.

That duty has stood the test of time for more than 60 years. It is the core duty that underpins the NHS. It has never changed. We are not going to change it, and we are amending the Bill to make that crystal clear. It is that duty to which we are referring when we say that the core duty on the Secretary of State remains the same.

Owen Smith Will the right hon. Gentleman give way?

Simon Burns (Conservative, Chelmsford)

I shall make a little more progress first. Section 1(3) of the 2006 Act would also remain unchanged. The provision reproduced in the Bill is almost identical to the provision set out in the 2006 Act, which derives from the founding NHS Act of 1946. Services will continue to be free at the point of use where they are now.

Fiona O'Donnell (Labour, East Lothian)

Will the right hon. Gentleman give way?

Simon Burns (Conservative, Chelmsford)

I will finish this point first and then give way to the hon. Member for Pontypridd.

The only difference in wording is the reference to services that are part of the health service, rather than services that the Secretary of State provides or secures. That ensures that the prohibition on charging applies to the services commissioned by the board or clinical commissioning groups. I reassure the hon. Member for Oldham East and Saddleworth that it includes all free services that form part of the health service, so it covers services commissioned by the board, clinical commissioning groups and, in relation to public health, local authorities. As set out in the Government response to the Future Forum report, we have committed to not introducing any new charges.

Owen Smith (Labour, Pontypridd)

The right hon. Gentleman will forgive me if I misheard him—perhaps he was going on to explain this—but did he not say a moment ago that clause 1 is unchanged? If that is the case, is that not effectively what the Secretary of State said, in slightly different language, in his oral response to the Future Forum? Is the reality not, as I hope the Minister will go on to explain, that clause 1(1) and clause 1(3) are the same as in the 2006 Act, but clause 1(2) is fundamentally different? Therefore, is it not slightly disingenuous of the Government to suggest that they are replicating the 2006 Act? In fact, there are slightly different words, although the spirit of what is proposed is the same. The NHS will be placed at one step’s remove from the Minister.

Simon Burns (Conservative, Chelmsford)

What I said to the Committee was basically an echo of the first part of what the hon. Gentleman has said. I said that section 1(1) of the 2006 Act remains unchanged, and that section 1(3) remains unchanged, and I then explained what the change to clause 1(2) was and why.

The Bill originally replaced the Secretary of State’s duty in section 1(2) to

“provide or secure the provision of services”

with a duty to secure the provision of services—a duty to

“act with a view to securing the provision of services”.

That was for two main reasons: first, because the Secretary of State—that is, the Department of Health—does not in practice provide or commission services, because that function is delegated to SHAs and PCTs; and, secondly, because commissioning functions will in future be conferred directly on a dedicated NHS commissioning board and clinical commissioning groups, acting subject to the mandate and the standing rules.

Hon. Members will, of course, be familiar with the fact that the mandate is issued to the commissioning board by the Secretary of State. That was wrongly interpreted by some as a reduction in Ministers’ responsibility. We have therefore amended the Bill to make it clear that the Secretary of State will retain ultimate accountability for securing the provision of services. In future, in relation to the NHS, the Secretary of State, rather than delegating to NHS bodies the duty to provide or arrange services directly, will exercise his duty through his relationship with the NHS bodies. For example, he will set the mandate for the NHS commissioning board, report annually on the performance of the comprehensive health service, and hold the arm’s length bodies, such as the NHS commissioning board and the regulators, to account.

In reply to the question from the Member for Islington South and Finsbury, the Secretary of State has powers to appoint and remove the chair and non-executive directors in each of the arm’s length bodies listed in new clause 2. He will have extensive powers to intervene in the event of significant failure. I will explain that in further detail for the benefit of the Committee.

Emily Thornberry (Labour, Islington South and Finsbury)

The right hon. Gentleman says that he has answered my question. Perhaps I was not sufficiently clear. My question was about the appointment of the chair and non-executive directors in relation to all the arm’s length bodies, not their removal. Will he help us by saying whether, avoiding the Nolan principles, the Secretary of State will have the power to appoint the boards of all the arm’s length bodies?

Simon Burns (Conservative, Chelmsford)

I am sorry if the hon. Lady thinks that. I was responding to a point that I thought she made before lunch. I was going to come on to her subsequent point about the Nolan principles, but I will deal with it now, as she has intervened. The Nolan principles and the code of practice of the Office of the Commissioner for Public Appointments will apply to all ministerial appointments to the arm’s length bodies. That includes the chairs and the non-executives of Monitor, the CQC, the National Institute for Health and Clinical Excellence, the Information Centre, and the NHS board.

The Secretary of State will also have extensive powers to intervene in the event of significant failure. As I said, I will explain that in detail for the benefit of the Committee because I think it would be useful given some of the comments that we have listened to during this debate.

The Secretary of State has the power, under proposed new section 13W in clause 19, to intervene if the board fails to discharge its functions properly or at all. In the first instance, he could direct the board on how it carries out its functions. If it fails to comply with those directions, the Secretary of State could either discharge the function himself, or make arrangements for another body to do so on his behalf. Clearly, that would be a last resort. The aim would always be to ensure that the NHS commissioning board carries out its functions in the way that Parliament intends. That would not give the Secretary of State a power to provide services. The board will have two main functions—first, a function to commission certain services and, secondly, functions in relation to clinical commissioning groups, such as allocating funding, which it must exercise so as to secure the provision of services. The Secretary of State could not use his intervention powers to exercise a function that the board does not have. I hope that the Committee now understands that the Secretary of State has all the necessary and appropriate functions in the Bill to enable him to secure the provision of services.

John Pugh (Liberal Democrat, Southport)

Does it not follow from what the Minister says about the step-in powers that the Secretary of State has a clear role in ensuring provision when it is otherwise deficient? He would thus retain the central role, which I think people want him to have, in provision without allowing a lot of commissioning to take place on a local and regional basis.

Simon Burns (Conservative, Chelmsford)

I did not hear the last bit.

John Pugh (Liberal Democrat, Southport)

Will the Secretary of State retain a role in provision, and ensure that provision takes place when commissioners fail to provide a comprehensive health service?

Simon Burns (Conservative, Chelmsford)

I hope I can reassure the hon. Gentleman by saying yes, the Secretary of State will.

Emily Thornberry (Labour, Islington South and Finsbury)

I still do not understand the Minister’s argument; let me make that clear. As section 1(2) of the National Health Service Act 2006 states:

“The Secretary of State must for that purpose provide or secure the provision of services in accordance with this Act.”

The Minister does not want that in the clause, so he has changed it, but I do not understand why. Under the previous regime, if I understand what the Minister has said, the Secretary of State had a duty to provide, and did so by delegating powers to others. Is the Minister saying that that will not happen now—that the Secretary of State will not have a duty to provide, and will not do that by delegating powers to others?

Simon Burns (Conservative, Chelmsford)

Opposition Members have some understanding of the position, but I will go into slightly more detail, in the hope that that will clarify the situation. As there is a misunderstanding about the duty to provide services, I will talk hon. Members through it.

Providers have the function of providing services. Commissioners have duties to commission services from providers. The Secretary of State and the national bodies have a duty to ensure that those activities take place as they should. I am sure that Opposition Members do not realistically intend the Secretary of State personally to provide health services, but that is what reinstating the duty to provide would mean, as set out in the relevant amendments. The critical thing is that mechanisms are in place to ensure that services are commissioned and that providers provide those services, and that there are mechanisms to circumvent problems and ensure that services are provided. The Secretary of State, in extreme cases, has the ultimate sanction to ensure that that continues if there is a problem.

Currently, the Secretary of State’s duty to provide services can be fulfilled with the benefit of two additional provisions, which are the power in section 12 of the 2006 Act to commission services instead of providing them directly, and the power in section 7 of that Act to delegate functions to SHAs and PCTs. The Secretary of State takes advantage of both those provisions, so that PCTs commission services from providers on his behalf. That is the existing system, which no one seems to object to.

The proposed new architecture sets out far more clearly where responsibility should lie, rather than relying on a system of delegation. I hope that helps to reassure the Opposition Front-Bench team, although I suspect that it will not.

Emily Thornberry (Labour, Islington South and Finsbury)

This is the nub of the difference. Previously, health providers commissioned on behalf of the Secretary of State—no one expected him to go and peel someone’s bunions for them. Other people did that on his behalf, but he was ultimately responsible, and he had political accountability. We are no further forward than when the Bill first appeared in the original Bill Committee. We have the Secretary of State setting up architecture and saying, “Right, I’m the Secretary of State, but you’re the commissioners, so I’m giving you that job. It’s nothing to do with me, guv. You go and commission. If you do it wrong, I may be able to sack you.”

Simon Burns (Conservative, Chelmsford)

Not “may be”; will be.

Emily Thornberry (Labour, Islington South and Finsbury)

“I will be able to”, then. There will be something in the way, however. You are putting obstacles in the way of the Secretary of State’s direct accountability to the public, through Members of Parliament, and you are clinging on to—sorry, obviously you are not, Mr Gale. The Secretary of State and the Department are clinging on to a change that people fundamentally do not want. Some 400,000 people have signed a petition urging the Government to drop the reforms. All that the Minister has done is confirm that the changes made are simply cosmetic; the fundamental point remains the same. Clause 1(2) addresses the power of the Secretary of State, and if you will not change that, you are clearly not bona fide on that point.

Simon Burns (Conservative, Chelmsford)

I am sure that you have nothing to do with it, Mr Gale, but to respond to the hon. Lady, this is the nub of the problem. After all our debates, and after all that she has presumably studied and read, the hon. Lady does not understand the ethos behind our modernisation of the NHS—or seeks to misunderstand it in public. The principle is this. We said before we came into power that we did not want political interference and micro-management in the day-to-day running of the NHS, although we did want high-quality services based on the core principles of the NHS.

The Secretary of State will provide a mandate to a national commissioning board to drive the commissioning of care through clinical commissioning groups and, in certain cases, through direct commissioning. However, as we keep saying, the Secretary of State will still be responsible for the health service, and even the Future Forum. When Opposition Members like what the forum has said, they cite it with admiration, saying how wise the forum is, but if it says things that do not agree with their prejudices, they say that it is wrong, or that it has not consulted or whatever.

If it is any help to him, I correct the hon. Member for Easington. If he would care to read the Future Forum’s report, he will see that on page 37 it says that among the more than 250 national stakeholder organisations that it consulted at its many meetings were the unions, although the hon. Gentleman did not seem to think so.

Grahame M. Morris rose—

Simon Burns (Conservative, Chelmsford)

I regret saying that, because the hon. Gentleman wishes to intervene. First, however, may I finish answering the hon. Member for Islington South and Finsbury?

The hon. Lady constantly repeated the mantra that the Secretary of State cannot be held to account by Parliament. That is just not true. I shall explain why in simple language. The Secretary of State is responsible for a comprehensive health service. He produces a mandate, saying what he expects for taxpayers’ money, through the commissioning board and the other layers of commissioning. That mandate will be placed before Parliament, which can then debate it—at Question Time and in Adjournment debates, Opposition day debates and Government debates. That is holding the Government to account. Similarly, the commissioning board will produce an annual report that will be placed before Parliament. For the same reasons, it too will be accountable.

Even in a modernised NHS, I do not think that there will be any changes. Members will still be writing to Ministers about local health issues, about constituents’ health problems and so on, and they will also raise health matters at Question Time and in debates, asking about the configuration of the service or whatever. I cannot see how there could be a reduction in the accountability of Ministers and the Government to Parliament in the area of health provision. It is a fact, and hon. Members will have to live with that. They must accept that it is not changing or being diminished from what happens now, with hon. Members being able to hold the Government to account.

I wish to make some progress; first, however, I shall give way to the hon. Member for Leicester West.

Liz Kendall (Labour, Leicester West)

The truth is that the Government are in a mess over this. They wanted to push responsibility away and down, but that has frightened people and Ministers are now having to change the legislation. The Minister says that he does not want micro-management, but later amendments give the NHS board the power to tell consortia how often to hold board meetings, what the groups should be called and how to obtain clinical advice. That is micro-management.

Simon Burns (Conservative, Chelmsford)

First, I assure the hon. Lady—she is a reasonable person—that the Government are not in a mess over this. Governments rarely do this, so she might find it strange, but, because we care so much about the NHS and its future success, we were prepared to listen and to pause. If we can strengthen and improve the proposals in light of the criticisms that have been raised—some genuine, some less genuine—we believe it is right to do so. We have listened and made changes that strengthen and improve the Bill and that meet some of the genuine concerns of organisations and individuals, both inside and outside the NHS. It shows our strength of character that we were prepared to do that. Many Governments would not do it; they would carry on regardless.

It is ironic that the issues that the hon. Lady raised on what management and clinical commissioning groups should do are things that have been called for to improve transparency and accountability.

Liz Kendall (Labour, Leicester West)

Number of meetings?

Simon Burns (Conservative, Chelmsford)

Indeed. It is all part of holding to account and having transparency, yet we are still criticised for it. Frankly, we have to move forward on the basis—[ Interruption. ] The hon. Lady has had her chance. She has blown it, and we are going to move on.

Grahame Morris (Labour, Easington)

Will the Minister give way?

Roger Gale (Conservative, North Thanet)

Order. The Minister has indicated that he is not giving way.

Simon Burns (Conservative, Chelmsford)

I said that I would give way in a minute, but let me finish. I did not expect to get any credit from the Opposition for doing the grown-up thing by listening and being prepared to make improvements, but I find it a little ironic that they criticise us for doing what they have urged us to do for a long time. Because I want to make progress, I am now going to give way to the hon. Member for Easington, as I promised. I will then make progress.

Grahame Morris (Labour, Easington)

The Minister is being generous. May I set the record straight? He said that I had suggested that the Future Forum had not consulted staff as a stakeholder, but I did not say that.

Simon Burns (Conservative, Chelmsford)

I said “unions”.

Grahame Morris (Labour, Easington)

The Minister suggested that that is what I said. It is not that the Future Forum did not consult them; my issue is that when I specifically asked Professor Field whether the trade unions had raised their concerns—he gave evidence to the Select Committee on Health on 16 June, just after the report was published—and what the implications were in the NHS constitution for the changes to staff pay and conditions, he said:

“When we met with them, that question did not come up in the discussion with the unions.”

When the trade unions appeared before this Committee on Tuesday afternoon, I specifically asked that question of Gail Adams, and she responded: “As the—”

Roger Gale (Conservative, North Thanet)

Order. Much has been made of the amount of ground that we have to cover. We will not cover it if we have over-lengthy interventions.

Simon Burns (Conservative, Chelmsford)

I understand that one of the hon. Gentleman’s complaints is that representatives of the unions were not consulted as part of the listening process. If I have misunderstood, I apologise profusely; no doubt we will both be consoled and reassured that the proof is in the pudding. The report shows that the unions did have an opportunity to input their views. I cannot comment on what went on in those meetings, because it was an independent forum at arm’s length from Ministers. I am not familiar with the minutiae of the meetings that were held by Professor Field and his colleagues.

May I get back to a more general point on the question of accountability? I have spoken, partly via the intervention of the hon. Member for Islington South and Finsbury, about accountability vis-à-vis Parliament, but I would also like to deal with the questions that were raised this morning about accountability and legal liability. I would like to make the point, as I have done already, that accountability to Parliament and legal liability are separate, albeit related, matters. The Secretary of State is accountable to Parliament for the health service, and that is not altered one jot by the Bill. In relation to legal liability, the board and the clinical commissioning groups have the primary legal responsibility to commission NHS services, as I have said.

Emily Thornberry (Labour, Islington South and Finsbury)

Ah!

Simon Burns (Conservative, Chelmsford)

The hon. Lady made an interesting noise—I am too polite to suggest what it sounded like, but it is related to a pasture. [ Laughter. ] I think we will start again.

Roger Gale (Conservative, North Thanet)

That may be a good idea.

Simon Burns (Conservative, Chelmsford)

In relation to legal liability, the board and clinical commissioning groups have the primary legal responsibility to commission NHS services, and they are legally liable for a failure to carry out that responsibility. The Secretary of State is not directly liable for a failure on the part of the board or a clinical commissioning group, or a failure by a provider. He is not liable, for example, if a hospital or a clinical commissioning group is negligent, but he is liable and could be the subject of a claim for judicial review by an affected member of the public if he fails to carry out his statutory duty under the legislation, including his duty to exercise his functions so as to secure the provision of health services under proposed new section 1(2) of the 2006 Act.

Opposition Members have tabled amendment 1, which would restore the Secretary of State’s original duty to

“provide or secure the provision of services in accordance with this Act.”

Critics mistakenly believe that that duty is fundamental to the comprehensive service, but it is not. It is simply a means of achieving the overarching aim of promoting a comprehensive health service, not the test of whether that aim is being achieved. It does not even create a free-standing power itself. The duty in proposed new section 1(2) of the 2006 Act is a duty to

“provide or secure the provision of services in accordance with this Act.”

The words

“in accordance with this Act”

mean that the actual powers and duties to provide and commission are set out elsewhere in the Act.

As I explained earlier, in the new legal framework that we propose, the Secretary of State would no longer have general powers to provide or commission services directly himself. Under the Bill, the duties and powers to commission NHS services are transferred to the NHS commissioning board and clinical commissioning groups, as I mentioned earlier.

The Secretary of State can provide or commission services himself, but only in exercise of his public health functions. If we kept the duty to provide, it would be a wholly inaccurate reflection of the framework contained in the rest of the Bill, which confers the functions of commissioning NHS services on the NHS board and clinical commissioning groups. If the Secretary of State were to retain those powers in parallel, that would enable him to cut across the board and clinical commissioning groups, undermining the mandate that he issues and the stability of the system, and opening the door to political micro-management, as I said near the start of my comments.

Emily Thornberry (Labour, Islington South and Finsbury)

What the Minister has just said is of huge importance, and I want to put on the record our alarm. If, for example, someone wants to take out a personal injury case because they have been treated badly in hospital following an accident, at the moment they would sue the Secretary of State. As I understand it, what the Minister has said indicates a fundamental shift of direction.

Simon Burns (Conservative, Chelmsford)

You do not sue the Secretary of State.

Emily Thornberry (Labour, Islington South and Finsbury)

You take out the action against the Secretary of State. If I have got that wrong, I stand corrected, but it has highlighted exactly what our problem is. It is all very well for the Minister to say, “We can’t change subsection (2), because if we do, it will be inconsistent with the rest of the Act.” That is the whole point; that is the point of what we are saying. We are saying that the Bill is wrong. It is an attempt to take away political power from the Secretary of State and hand it to a group of quangos that do not have the same political accountability, in a cold climate of £20 billion- worth of—

Roger Gale (Conservative, North Thanet)

Order. I am sorry, but the hon. Lady is making a speech. I try to be tolerant in these Committees, but hon. Members must understand the difference between an intervention and a speech. If the hon. Lady wishes to catch my eye again when the Minister has finished speaking, she may do so.

Simon Burns (Conservative, Chelmsford)

This is the nub of the matter. I just fundamentally disagree with the hon. Lady’s interpretation. She talks as though the situation is a new revelation. It is not. The whole ethos of the policy from before the election was that we did not want political interference in and micro-management of the NHS on a day-to-day basis. That has been the guiding principle, along with improving and enhancing patient care and giving greater decision-making powers to clinicians to be able to look after their patients.

Owen Smith (Labour, Pontypridd)

Will the Minister give way?

Simon Burns (Conservative, Chelmsford)

No, I am sorry but I will not give way at all, because I want to finish answering some of the points that the hon. Lady made in the course of her rather long intervention. She said that, at the moment, an individual would sue the Secretary of State. That is not the case. If there is a problem, action is taken now against the PCT in the case of commissioners, or against the trust in the case of providers. Neither of them is the Secretary of State. The hon. Lady is wrong. The situation is the same now; it will just apply to different bodies. There is no sea change or difference in that.

I will move on. Hon. Members have asked what removing the words “to provide” means. The short answer is that although the Secretary of State must ensure that the NHS services are provided by, for example, exercising powers over the NHS commissioning board and other bodies, he has no responsibility to provide those services himself.

We should consider what a duty to provide means. A duty to provide involves having the premises and the staff necessary to offer health services directly. At present, the Secretary of State has a duty to provide, but even under the current system, that does not reflect the reality of a situation in which commissioning and provision rest with NHS bodies, not the Secretary of State. Retaining a duty to provide would not be an appropriate way forward for NHS services; it would be a retrograde step and utterly inappropriate, given the network of NHS commissioners and providers already set up to commission and provide services.

It is worth noting that, subject to a few exceptions, the duty in section 1(2) of the 2006 Act to

“provide or secure the provision of services”,

and the section 3 and 12 functions of providing or arranging the provision of particular services, have for many years not been fulfilled by the Secretary of State’s providing or commissioning services directly. Those functions are delegated to SHAs and PCTs. Although there is a small amount of direct provision of community services by PCTs, that is due to cease, because PCTs are almost entirely commissioning bodies.

In future, the split between commissioning and provision, which Labour Members supported while in government, will be even clearer, so that the board and clinical commissioning groups will not have the function of directly providing services. The current system of delegated functions held by the Secretary of State but exercised by other bodies has led to confusion, as the debate today has shown. The framework established by the Bill will improve transparency and strengthen accountability by ensuring that all parts of the system have their functions conferred on them directly by Parliament in primary legislation.

Government amendments 55 and 56 make changes to the board’s core duty in clause 5 that are consequential on the changes to the Secretary of State’s core duty in clause 1. Amendment 55 replaces the current drafting of

“act with a view to”

with the words

“secure that services are provided”,

thus restoring the alignment between the drafting of the Secretary of State’s and the board’s overarching duties.

Amendment 56 sets out the Secretary of State’s public health functions, which were originally in clause 1 of the Bill but would be removed by the introduction of new clause 1. The provision is restated here because this is the first place in the Bill in which a clause distinguishes between the Secretary of State’s NHS and public health functions.

Government new clause 2 introduces a new duty on the Secretary of State to keep health service functions under review. The purpose of that is to make it clear in legislation that the Secretary of State is ultimately accountable for ensuring that the national arm’s length bodies, such as the NHS commissioning board, Monitor and the CQC, are performing their functions effectively. This duty is backed by extensive powers of intervention in the event of significant failure.

New clause 2 also gives the Secretary of State the power to report on how the national level organisations have discharged their functions as part of his annual report on the performance of the health service.

Fiona O'Donnell (Labour, East Lothian)

Will the Minister give way?

Simon Burns (Conservative, Chelmsford)

I will make progress. The hon. Lady has had many opportunities to contribute to the debate, and we need to move on because we are timetabled and there is still quite a lot to do.

I now turn to Opposition amendment 227, which relates to the Secretary of State’s duty to reduce inequalities. Helpfully, we established during the previous and extensive debates on this issue that we all supported the principle set out by clause 3, which is the need to reduce health inequalities, and agreed that it should be at the heart of Government decision making. Let me take the opportunity to remind hon. Members that this will be the first time that there has ever been a specific legal duty in relation to reducing inequalities in the health service in primary legislation. That reinforces our determination and commitment to reducing inequalities.

In the country, we have a good understanding of what health inequalities are and different ways in which we can work to address them. For example, we have accepted the analysis in the Marmot review and emphasised our commitment to a social determinants approach.

Grahame Morris (Labour, Easington)

Will the Minister give way?

Simon Burns (Conservative, Chelmsford)

No, I will not. This social determinants approach has been shared across Government and in our partnerships with others, including the charitable and voluntary sector. It has informed the development of other reviews, such as the Frank Field child poverty review and the Graham Allen review on early intervention, as well as Government strategies on social mobility, child poverty and, most recently, the natural environment White Paper.

We will continue to work through the ministerial sub-committee on public health and other bodies to underline the importance of the social determinants approach in tackling health inequalities. However, we also know that there is no easy answer or quick fix to reducing health inequalities. It is not something that the Department can do alone. The causes of and remedies for health inequalities lie across many areas of Government policy and beyond. Health inequalities are a societal problem.

The amendment would give the Secretary of State sole responsibility for the reduction of health inequalities, but that is not something that he can do alone, and it is not solely within the gift of the Department for Health. The duty in the unamended clause is more practical and achievable. It is intended to give him a duty to do the things that he can do on inequalities. The concern behind this amendment is that the need to strengthen the inequalities duty on the Secretary of State is misplaced. I will explain why the amendments do not do what hon. Members wish to achieve.

The clause as it stands reflects the language set out in the Equality Act 2010, which applies to all public sector organisations, including the Department for Health and NHS bodies. It places a legal obligation on the Secretary of State to consider how he can reduce inequalities and what more can be done to reduce inequalities whenever he is making any decision in relation to the health service.

The duty applies when the Secretary of State is exercising functions in relation to other bodies and not just when he is acting directly. That is important because it embeds the need to consider inequalities across all the Secretary of State’s functions relating to the health services and it entrenches those principles in all departmental policies.

By contrast, the duty proposed by the amendment is narrower, as it will capture only the actions that the Secretary of State can take directly. It fails to recognise that in practice, much of the way in which the Department of Health can influence health inequalities is through the policies and objectives that it sets for other organisations. I am sure that hon. Members would not wish to limit the Secretary of State’s obligations in this way.

The amendment is not necessary. The clause as it stands is more practical. The duty it places on the Secretary of State is more wide reaching and will achieve exactly what the amendment aims to do. It is for those reasons that I oppose the amendment. In summary, I invite members of the Committee to join me in supporting Government amendments 55, 56, new clause 1 and new clause 2 and in agreeing that the current clause 1 should not stand part of the Bill.

I hope that Opposition Members understand my reasons for rejecting amendments 1 and 227. However, should they wish to press the matter to a vote I invite my hon. Friends to join me in opposing the amendments. Because it is a little complicated, I will explain once more: I hope my hon. Friends will join me in voting for new clause 1 and new clause 2, Government amendments 55 and 56 and—this is the bit that may come as a bit of a surprise—voting against clause 1 standing part of the Bill and against amendments 1 and 227.

Grahame Morris (Labour, Easington)

On a point of order, Mr Gale. Is it possible to speak in support of amendment 227 or have we finished this group?

Roger Gale (Conservative, North Thanet)

We had—possibly partly in your absence, Mr Morris—a fairly comprehensive debate on amendment 227. The ground was covered at some length this morning so I do not think it would be appropriate at this stage.

Emily Thornberry (Labour, Islington South and Finsbury)

I am attempting to check what the Minister said about legal actions and I am afraid that my research is not fast enough. However, I would appreciate a note about the changes to legal liability so that we are absolutely clear about that. It is a concern.

Simon Burns (Conservative, Chelmsford)

May I give the hon. Lady this assurance? I want to be helpful and I understand that it is a complex issue. If, after she has read my comments in this debate, she still wants a note, I will be more than happy to provide one.

Liz Kendall (Labour, Leicester West)

I want to press the amendment to a vote.

The rest of the debate is in Hansard.