The Waugh Room

Tuesday 25th October 2011 | 15:38

Lansley Accepts His Responsibilities

Looks like we'll be seeing yet another tweak to the Government's health policy tonight.

I understand that ministers will look favourably on an amendment by Lord Mackay (of Clashfern) to make even clearer the role of the Secretary of State.

The Mackay amendment to the NHS and Social Care Bill will now have an extra line that "the Secretary of State retains ultimate responsibility to Parliament for the provision of the health service in England".

That may be enough to calm the Lib Dem peers, including Shirl the Pearl, who were steamed up about this very issue of 'securing' or 'providing' services.

This wee change has been worked on carefully behind the scenes. The DoH felt there were real legal issues as to why the Bill could not explicitly say the Health Secretary was responsible for 'providing' services directly, largely to reflect the reality of the new Clinical Commissioning bodies.

Yet I'm told ministers accepted the political reality of having to finally rule out any suggestion that Lansley would not be accountable.

 

UPDATE: This change has been brewing ever since the 2nd Reading debate and I'm told ministers had it up their sleeve if things had looked even stickier on that vote. 

DH insists that it is merely 'clarifying' the SoS role and that this is no 'U-turn' (though Andy Burnham now says it's a 'humiliating climbdown').

You make your own mind up. Here's an extract from Lord Howe's letter to Baroness Jay recently which set out just why the Government wanted to amend the current dutyon the Secretary of State to 'provide' services. It's long but perhaps worth it for the detail:

"The Government accepts that replacing the Secretary of State’s duty to ‘provide or secure the provision of services’ with a duty ‘to secure that services are provided’ does alter the Secretary of State’s political accountability in so much as he will no longer have a statutory duty to provide or commission services which is at present delegated to NHS bodies. This does not reduce the overall responsibility that the Secretary of State has for the NHS. The Secretary of State retains political accountability for the NHS and legal accountability for the statutory functions placed on him. 

"The Bill also proposes to remove the duty on the Secretary of State to ‘provide throughout England, to such extent as he considers necessary to meet all reasonable requirements’ NHS Act 2006, Section 3(1). This duty will now be placed on clinical commissioning groups (“CCGs”) which ‘must arrange for the provision … to such extent as it considers necessary to meet the reasonable requirements of the persons for whom it has responsibility’ Health and Social Care Bill 2011, Section 10(1). 

"The purpose here of removing the Secretary of State’s duty to provide particular services and instead giving the function of commissioning those services to the NHS Commissioning Board (“the Board”) and CCGs is simply to make clear that it should not be the responsibility of ministers to provide or commission services directly.  Currently the Secretary of State uses directions to delegate the duty in section 3 to Primary Care Trusts (“PCTs”), and to direct them about its exercise. The Government’s policy is that the Board and CCGs should not be subject to a general power of direction and should instead use their professional expertise to act in the best interests of patients, free from political micromanagement. In practice, the Bill will change little; there will continue to be no involvement in the commissioning process for Whitehall or the Secretary of State. 

"Furthermore, this Bill will not change the long shared policy aim of all the main parties in England to secure a commissioner/provider split in NHS services in order to avoid conflicts of interest and maximise value for money for patients and taxpayers. By explicitly removing the Secretary of State’s duty to provide, legislation will better reflect what has been the reality of the NHS for years. 

"Currently, PCTs commission rather than provide the majority of their services, and once PCTs complete the process of transferring their community health services provider arms, the separation will be complete. In these circumstances, the Secretary of State’s duty to provide under section 1(2) of the 2006 Act would no longer be necessary or appropriate, in the light of the policy that neither the Secretary of State nor NHS commissioners would be providing NHS services. Even without the rest of the Government’s modernisation programme, there would be a case for removing the duty to provide, so that the legal framework accurately reflects the practical realities. 

"Removing the duty to provide and giving CCGs the function of commissioning does not mean that the Secretary of State no longer has any control or influence over the NHS.  In addition to the overarching duty to promote a comprehensive health service Health and Social Care Bill 2011, Section 1(1)and his duty – for that purpose – to exercise his other functions so as to secure that services are provided, the Bill gives the Secretary of State extensive powers of oversight and stewardship of the NHS. "

 

UPDATE: The Lords ran out of Parliamentary time to discuss this on Tuesday. It will now be debated next week.