Considered in Grand Committee
My Lords, we had many debates in the House and in this Committee on the Health and Social Care Act, and the noble Lord will remember the lengthy debates on the Bill itself. In this Session debates have taken place on secondary legislation that puts in place key elements of the new system. Most recently, we debated the NHS Bodies and Local Authorities (Partnership Arrangements, Care Trusts, Public Health and Local Healthwatch) Regulations on 5 February and the draft Local Authorities (Public Health Functions and Entry to Premises by Local Healthwatch Representatives) Regulations on 7 February.
This draft order, however, is very different from those sets of regulations. It is short, and it raises no new issues of substance. Since it seeks to amend primary legislation, it is right and proper that it is subject to affirmative resolution. But it is made under a narrow power to,
“make provision in consequence of the Act”.
I cannot claim that the amendments it makes are of significant interest. They are minor adjustments, needed as a direct consequence of the Health and Social Care Act 2012. They help to keep the statute book up to date and coherent, but they involve no new policies. Consistently with this, neither the Joint Committee on Statutory Instruments nor the Secondary Legislation Scrutiny Committee has seen a need to draw special attention to the draft order. That confirms that the amendments in the order are indeed consequential on the Act.
Because the order is brief and amends only a few pieces of legislation, it may be helpful if I explain the reason for the amendments to each Act in turn. I will start with the simplest. Section 403 of the Education Act 1996 refers to an NHS body within the meaning of Section 28(6) of the National Health Service Act 2006. Following the amendments to the 2006 Act made by the Health and Social Care Act, this is now Section 275(1). The draft order amends the cross-reference in the Education Act accordingly.
The order amends two other Acts by removing references to primary care trusts. These bodies are being abolished by the Health and Social Care Act 2012 on 1 April 2013, so it makes no sense to keep references to them on the statute book.
The first of the Acts in question is the Vehicle Excise and Registration Act 1994. Schedule 2 to this Act identifies the vehicles that are exempt from vehicle excise duty. Currently a vehicle is exempt when it is being used or kept on the road by, among others, a primary care trust or by,
“a health service body, as defined in section 60(7) of the NHS and Community Care Act 1990”.
The definition of “health service body” in Section 60(7) currently includes strategic health authority.
Schedule 5 to the Health and Social Care Act already removes the reference to “strategic health authority” from the definition of “health service body” in Section 60(7) of the NHS and Community Care Act 1990. Consistently with that, the draft order now removes the reference to primary care trust from the Vehicle Excise and Registration Act.
The second Act is the Welfare Reform Act 2012. Section 130 of this Act identifies circumstances in which local authorities may use or disclose information about certain benefit claimants, including when the claimant is in hospital accommodation provided by an NHS trust, a foundation trust or a primary care trust. Again, the draft order removes the reference to “a primary care trust” without replacement. The Health and Social Care Act creates no new provider bodies, so it is not necessary to replace this reference to a primary care trust.
I turn next to the Audit Commission Act 1998. The amendments to this Act look more complex because they amend a number of provisions, but their purpose is very simple. The Audit Commission Act is best known for setting out the audit framework for local authorities, which also applies, with some differences, to health service bodies. As matters currently stand, however, the Health and Social Care Act provides for clinical commissioning groups’ accounts to be audited by the Audit Commission in accordance with the Audit Commission Act, but the Audit Commission Act itself does not apply to clinical commissioning groups. These are the new bodies that are being established under the Health and Social Care Act to commission the majority of secondary healthcare. The draft order therefore amends the Audit Commission Act to ensure that its requirements for health service bodies apply to clinical commissioning groups. The amendments also recognise the role of the NHS Commissioning Board in relation to clinical commissioning groups. For example, if an auditor of a clinical commissioning group thinks that there has been unlawful expenditure, the auditor must notify the Commissioning Board in addition to the Secretary of State.
My Lords, if the Committee will allow me, I think it is probably helpful if I complete my remarks. Our normal procedure is that the noble Lord, Lord Hunt, as opposition spokesman, will speak first, followed by other noble Lords. I will answer all questions at the end, if that is acceptable.
I turn now to the amendments to the Local Government Act 2000 and to the Local Government and Public Involvement in Health Act 2007, which I shall refer to as the 2000 Act and the 2007 Act. In both cases, the draft order removes references to primary care trusts and replaces them with references to the NHS Commissioning Board and to the relevant clinical commissioning group. The context here is one of commissioning services rather than providing them, so it is appropriate to make this substitution. To explain this in more detail, Section 104 of the 2007 Act sets out persons who are “partner authorities” of certain local authorities. The list currently includes primary care trusts. The definition of “partner authority” is relevant for a number of provisions in both the 2000 Act and the 2007 Act. For example, Section 9FF of the 2000 Act applies, with some exceptions, where an overview and scrutiny committee or its sub-committee makes a report or recommendation to the local authority or its executive on certain functions of a “relevant partner authority” that are exercised in relation to the committee’s area or residents of that area. In such a case, Section 9FF(2) enables the committee to require the relevant partner authority,
“to have regard to the report or recommendation in question in exercising its functions”,
and Section 9FF(4) requires the relevant partner authority to comply.
However, there is an exclusion, and this brings me to the amendment to Section 9FF(6). The exclusion applies where the relevant partner authority is a “health service body” and the report or recommendation is made by an overview and scrutiny committee or sub-committee of a non-unitary district council. There is also an exclusion where the report or recommendation is additionally made to a health service body under regulations under Section 244 of the National Health Service Act; those regulations, of course, concern review and scrutiny of the health service by local authorities. The definition of “health service body” in Section 9FF(6) currently includes a primary care trust. It makes sense to replace this with references to the NHS Commissioning Board and clinical commissioning groups because of the functions that those bodies are taking on from primary care trusts.
Finally, the draft order repeals the provisions of the National Health Service (Consequential Provisions) Act 2006, which inserted the provisions in the Vehicle Excise and Registration Act and the Education Act that are amended by the order.
In conclusion, I hope I have demonstrated that the draft order contains no more than is consequential on the Act. It makes some minor but necessary changes to keep the statute book up to date, in particular to ensure that clinical commissioning groups are subject to the requirements of the Audit Commission Act. I commend the draft order to the Committee.
My Lords, I am sure that the Grand Committee will be grateful to the noble Earl for his very comprehensive description of this very important order. I refer the Committee to my health interests, contained in the register.
It is a curiosity of Department of Health orders that we are having this debate on an affirmative resolution on a quite unexceptional order, and yet around us great debate is going on about the competition statutory instrument—which the noble Earl will know a little bit about, I suspect—which is a negative order. The noble Earl has explained that this is essentially making changes to primary legislation and that is why it has to be considered in this way. However, having made reference to the order on public procurement, SI/2013/257, is the noble Earl in a position to update the Committee on whether or not he intends to revoke the order?
I was interested in Article 4, which refers to the Audit Commission Act. My understanding is that either the Audit Commission has already been abolished or it is shortly to be abolished. I am not going to open up that debate today but it has been put to me that one of the benefits of the Audit Commission is that the fees it sets help keep audit fees down generally. My question to the noble Earl is: if clinical commissioning groups now have to use the big auditing firms, is there not some concern that fees will rise over time because there is not the discipline of the Audit Commission being able to provide an audit service itself? Given that the management costs available to clinical commissioning groups are quite limited, that would be a concern. Other than that, of course I am happy to support this order.
My Lords, I am grateful to the noble Earl for his patient and detailed explanation of what the order entails. I had intended an early intervention so that he might be able to give the answer to my query during the debate. Does this order, which refers to social care, presage a better deal for those this with Alzheimer’s disease? In the context of my question, is the noble Earl able to give the briefest definition of social care?
I am grateful to both noble Lords for their comments and questions. I turn first to the question posed by the noble Lord, Lord Hunt, around the Audit Commission and its role. The noble Lord is right: the Government’s intention is to bring forward legislation, as soon as parliamentary time allows, to replace the Audit Commission. The legislation will abolish the Audit Commission and establish a new framework for the audit of local public bodies in England. The Commons committee that undertook pre-legislative scrutiny of the Draft Local Audit Bill published its report on 17 January. The Government are considering the report very carefully and we will publish a response in due course. I think that that is all I can say in the context of the noble Lord’s question about fees, but if I have any further points to add I will, of course, write to him.
The noble Lord also asked me about the procurement regulations, and I congratulate him on taking the opportunity to do so. We remain absolutely committed to the undertakings given during the passage of the 2012 Act, and we are clear that the regulations we have laid adhere to both the letter and the spirit of those undertakings. However, we understand the concerns that have been raised by noble Lords and stakeholders, and we are making a public commitment to engage intensively with Members of Parliament and Peers to understand their concerns. We will look again at the regulations to see how we can explain them better, clarify our position and address the concerns that have been raised.
The noble Lord asked me about the definition of social care in the context of this order. I am perhaps not the best person for making up definitions on my feet. However, in terms of care of the elderly, social care is that activity which is characterised by the service provided by local authorities and their contractors to look after elderly people, both in residential accommodation and in their own homes by way of domiciliary care. The noble Lord mentioned patients with Alzheimer’s disease. I would perhaps sound a slight caveat because people with Alzheimer’s disease can, of course, be looked after in a variety of settings, including a healthcare setting. However, there are very many individuals who are looked after in their own homes and in residential care as well. Social care tends to be characterised as care that does not involve a specific health input, but rather the care of an individual for their day-to-day living needs.
The noble Earl has been very courteous and helpful. Since I held, many years ago, a position like his in three Administrations, I know that to ask a question early enough enables the Minister to have the answer prepared by officials. I thus rise again to my feet simply to say that my original intervention was well intended because I knew that, notwithstanding the elegance and brilliance of the noble Earl’s ministerial reputation, it would have been more helpful if I had spoken earlier than I did.