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Cities and Local Government Devolution Bill [HL]

Volume 762: debated on Monday 29 June 2015

Committee (3rd Day) (Continued)

Amendment 44DA

Moved by

44DA: After Clause 9, insert the following new Clause—

“Sustainable development

After section 117 of the Local Democracy, Economic Development and Construction Act 2009 (orders) insert—“117A Sustainable development

(1) In determining whether or how to exercise the power conferred by section 113D, a combined authority shall have regard to the effect which the proposed exercise of the power would have on—

(a) the health of persons in its area; and(b) the achievement of sustainable development in the United Kingdom.(2) Where the authority exercises the power conferred by subsection (1), it shall do so in the way which it considers best calculated—

(a) to promote improvements in the health of persons in its area, and(b) to contribute towards the achievement of sustainable development in the United Kingdom,except to the extent that the authority considers that any action that would need to be taken by virtue of paragraphs (a) or (b) above is not reasonably practicable in all the circumstances of the case.(3) In subsection (2)(a), the reference to promoting improvements in health includes a reference to mitigating any detriment to health which would otherwise be occasioned by the exercise of the power.

(4) In deciding whether or how to exercise that power, the authority shall have regard to any guidance issued under section 118.””

Amendments 44DA, 44DB and 44DC are probing. They mirror similar texts in the Greater London Authority Act 1999. Why do the Government not propose to include these important safeguards for devolution outside London that the 1999 Act provides for within London? That is particularly important in relation to the concentration of power that is proposed for mayors. It is also relevant to the exercise by combined authorities of the general powers of competence.

Amendment 44DA requires the combined authority to have regard to the effect on the health of persons in its area and to the achievement of sustainable development. I would have thought that the Government were keen to see those things promoted and would be in favour of the provision in proposed new subsection (3), which states that,

“the reference to promoting improvements in health includes a reference to mitigating any detriment to health which would otherwise be occasioned by the exercise of the power”.

Amendment 44DB relates to consultation. All Governments say that they do not like lists of people who have to be consulted, but the list in my amendment seems reasonable. Amendment 44DC refers to transport strategies. The London mayor has produced many strategies—most of them are good, some less good—and people in the London area have been consulted on them. I was in Liverpool last week hearing people’s views on the northern way, or northern powerhouse or any of the other names for the new area for development across the Pennines—from the Humber to the Tyne and Tees to Liverpool and most places in between. It is good, and surprising, that the authorities have got together and appear to be coming up with a joint strategy for the whole region. Only a few years ago, as the Minister will know from her experience there, such a strategy was a bit of a pipe dream, but it is happening now. It will need funding and it will need more detail, but it is happening.

The key is to achieve consensus without any one mayor thinking that he or she is in charge. A couple of years ago I was told that the people of Liverpool had to run everything because they were better. Perhaps Manchester is supposed to be better now, but in fact everyone is working together.

Amendment 44DA is a probing amendment to find out why the Government have not felt it necessary to replicate the text from the Greater London Authority Act in this Bill. Is it seen as an unnecessary constraint on the mayor’s powers? We need some constraints, especially on health and sustainable development. The measure has not been entirely successful in London because, before the Olympics two years ago, the mayor managed to hide the statistics for air pollution by covering up the monitors. It was an easy way of doing it and he seemed to have got away with it. We were certainly said to have better air quality than Beijing, which would not have been the case if the monitors had not been covered up.

I shall be interested to hear what the Minister has to say. She may say that the amendment is not necessary, but if it is good for London, why is it not good for the rest of the UK in the circumstances that the Bill covers?

I support the amendment. A question has come from a number of Benches and the Minister about the problem of trying to recreate London devolution in the north and elsewhere in the country. I understand that and I concede that there might be differences in the way it is implemented which are more relevant to those areas. However, I suspect it is dangerous to talk about the north because those cities to the left of the Pennines might not see it in the same way as those on the eastern side. The fundamental thing is not necessarily to make it the same—as the noble Lord, Lord Berkeley, said, this is a probing amendment—but why should metropolitan areas outside London have a second-division method of governance in comparison to what has been trialled and used in London, to a degree successfully, although not completely?

The areas of particular importance in this are sustainable development—which ties up completely with the outline planning rules introduced by the previous Government—and transport. When we discussed the Infrastructure Act last year we asked for a transport strategy—particularly around cycling and pedestrians— which I hope the Government and the Secretary of State are developing. It is important that this becomes part of the work of combined authorities.

This may not be the perfect amendment but it is necessary to include this kind of framework in the Bill for northern cities and combined authorities. Even though a direct comparison with and a copying of London legislation and regulations may not be completely appropriate, it is important to find something that fits the situation of combined authorities in the north and elsewhere that enables them to be successful. In that sense, I hope the Government will come forward with a different formula that meets those objectives.

My Lords, I know that opposition to motherhood and apple pie is always disliked in this House, but the impression put forward by these amendments is very worrying. Do we have any indication that the governance of London has been affected by this, because any sensible mayor of any denomination would do the useful things that are listed here? However, some of them mean very little. For example, what can we take from subsection (2) of proposed new Section 117B, which states that any body or person a combined authority considers consulting must include any council within its area and,

“bodies of each of the descriptions specified in subsection (3)”?

Those bodies in subsection (3) include:

“(a) voluntary bodies some or all of whose activities benefit the whole or part of its area;

(b) bodies which represent the interests of different racial, ethnic or religious groups in its area;

(c) bodies which represent the interests of persons carrying on business in its area”.

Are there any bodies of any kind whatever not covered by that? It makes no sense. It is a list of things. Will a decision by the mayor be illegal which did not follow a discussion with a particular body providing for the interests of a small number of people in a particular ethnic group for whom it was not appropriate? This is a list of things which are good, valuable and helpful but totally not useful in the activities which we envisage the mayor carrying through.

It would be perfectly reasonable to say that the mayor should have serious concern about sustainable development; that he should have appropriate consultation; that it would be a good idea to ensure that transport strategies were,

“consistent with national policies and with such international obligations as the Secretary of State may notify to the mayor for the purposes of this section”.

However, I have my doubts about whether it would make any difference. If there are things to be said, they should be said when they are necessary. There should not be merely a list of things about which we can all feel warm because we have voted in favour of reminding people that it is a good idea to consult.

My Lords, the amendments of my noble friend Lord Berkeley reasonably probe the Government and focus on issues which should underpin a combined authority’s operations and strategies. There are issues around the health of people in the area and around sustainable development, about which my noble friend always speaks with passion. I know the Minister’s answer will be, “You can ask for all these things; you may well get these things in a deal; but you do not have to have them in the Bill”

The consultation requirements in these amendments are a little more specific than one would like, even if one were in support of putting them in the Bill. The issue here is to encourage all the deals that take place under these devolution proposals to have, as their underpinning, issues around sustainable development and the health of people in the area. I am sure the Minister will tell us there is no reason why those issues should not feature in any deal that might be entered into. If that is not the case, there is a stronger case for putting something more specific in the Bill.

As to the strategic view on transport, if there is an argument for putting measures in the Bill it might be to hold the Government to account so that we do not proceed on an assumption of a northern powerhouse, with a big debate around connectivity, and hear a few days later that the funding is not there to deliver on it. That does not help trust between government and local authorities in creating an environment where devolution can work and where issues around sustainable development and the health of people in an area are at the forefront of the strategic operations of a combined authority.

My Lords, these amendments seek to introduce into the Bill new clauses that would place on combined authorities prescriptions and requirements about how they exercise certain powers which may be conferred upon them.

Amendments 44DA and 44DB place requirements on how a combined authority which has been given the full general power of competence through the provisions of Clause 9 of the Bill is to exercise these powers. These requirements are about having regard to certain matters and having to undertake consultation with various specified authorities and other bodies. The intention of new Section 113D, which Clause 9 inserts into the Local Democracy, Economic Development and Construction Act 2009, is to allow the same power of general competence that is available to local authorities to be conferred on combined authorities. The purpose of such a general power is to give the authority concerned the same scope and freedom of action as is available to any individual, such as you or me, subject to any specific legislative restraints applying to that authority.

To seek to prescribe to combined authorities how they should exercise this power would seem to be contrary to the essence of the general power of competence. It would place combined authorities in a more restrictive regime than that which applies to local authorities generally. There are no grounds for doing this in those situations where, as part of an agreed deal, it is considered right to give a combined authority the full general power of competence.

I recognise that these amendments appear to mirror some of the provisions that apply to the Greater London Authority. In the London context, the authority has the power to do anything which it considers will further any one or more of its principal purposes. In exercising this power the authority is required to have regard, for example, to its effect on the achievement of sustainable development in the UK and on the health of persons in Greater London. However, these specific powers which are given to the Greater London Authority are of a very different nature to the general power of competence, which, as I said, is the power for an authority to do anything which an individual can do, unless it is specifically prohibited. These are particular powers about promoting economic development and wealth creation in Greater London, promoting social development in Greater London and promoting the improvement of the environment in Greater London. It may be in a particular deal that similar powers are conferred on a combined authority, using the powers in the Bill under Clause 6.

Amendment 44DC provides that in preparing or revising any transport strategy a combined authority shall have regard to the health of persons in its area, the achievement of sustainable development in the UK and certain matters relating to national policies, international obligations and the available resources for that strategy. This amendment mirrors provisions which apply to the London mayor in respect of his general duties in relation to his strategies. However, such provisions are not appropriate to be included in an enabling Bill, which does not refer to any particular powers or duties a combined authority and its mayor may have. If, as part of a particular deal, a combined authority mayor is given a power similar to the Mayor of London’s in relation to certain strategies, then it may be right that, in the case of that combined authority, matters such as sustainable development and the health of the people in the area could be relevant considerations to be taken into account by the mayor when drawing up those strategies. The orders creating such an arrangement would be able to reflect this.

Whatever the importance of particular issues, and clearly the health of people in an area is of the utmost importance, it is not for this Bill to include either references to specific powers, or provisions which can relate only to specific powers. This is an enabling Bill and in our previous debates I have made very clear that the Bill is not a vehicle for setting out lists or descriptions of powers which may or may not form part of an agreed deal with particular areas. Accordingly, I hope the noble Lord will agree to withdraw his amendment.

I am very grateful to the noble Baroness for her comprehensive explanation, which might be summed up with “good try”. As I said, it is a probing amendment. It has been an interesting debate, and I accept the comments of the noble Lord, Lord Deben, about the detail. The amendment was basically copied from a GLA Act, which seemed a good place to start, but he has made some very good points.

The noble Lord, Lord Teverson, reminded the Committee that we are still waiting for the Government’s strategy on cycling and walking, which came in earlier this year, and that will be good. My noble friend Lord McKenzie hit the nail on the head by saying that all this is fine but unless it is accompanied by funding—and, one could even add, an ability to raise funds locally—how important will it actually be? I will read the Minister’s comments with great interest. I may come back on this again, or I may not. I beg leave to withdraw the amendment.

Amendment 44DA withdrawn.

Amendments 44DB and 44DC not moved.

Amendment 44DD

Moved by

44DD: After Clause 9, insert the following new Clause—

“NHS responsibilities

(1) The Secretary of State may transfer to a combined authority any NHS responsibilities provided for in the Health and Social Care Act 2012 if he considers—

(a) that it is in the best interests of the authority’s population in terms of health outcomes; and(b) that it will help fulfil his duty in section 2 of the 2012 Act (the Secretary of State’s duty as to improvement in quality of services) to improve the quality of health services.(2) In making a transfer of responsibilities to a combined authority under subsection (1), the Secretary of State shall request that a memorandum of understanding between NHS England and the combined authority be agreed.

(3) The memorandum of understanding shall—

(a) be consistent with the duties and powers of the combined authority under the 2012 Act, and(b) last for a minimum of 5 years, unless the combined authority fails to discharge its responsibilities under the memorandum, including its mandate from the Secretary of State.(4) Any memorandum under subsection (2) shall have regard to the Secretary of State’s duty under section 5 of the 2012 Act (the Secretary of State’s duty as to promoting autonomy) by—

(a) promoting autonomy and avoiding placing unnecessary burdens on the combined authority, and(b) specifying the key health outcomes to be achieved by the combined authority.(5) The requirements in the memorandum shall be set out in regulations by the Secretary of State.

(6) A combined authority assuming NHS responsibilities under the provisions of this section shall publish an annual report on how it has discharged its responsibilities on the basis set out in the memorandum of understanding.”

My Lords, we return to the issue that we discussed last Wednesday, namely the ability of combined authorities to assume NHS responsibilities under this Bill. Several things emerged in our last discussion. The first was that the Government currently have no intention of making any clear provisions in the Bill for combined authorities to assume NHS responsibilities. Instead, they wish to proceed on the basis that a combined authority could negotiate a deal with NHS England that would be enshrined in a memorandum of understanding covering a number of years. However, the Secretary of State would retain all his powers in the Health and Social Care Act 2012 to overrule actions by the combined authority in accordance with the memorandum of understanding, if he disagreed with those actions. No matter how much agreement there was between local bodies such as clinical commissioning groups, health and well-being boards and a combined authority, it would still be the Secretary of State’s view that prevailed. The Minister made it clear when I taxed her on the issue of local bodies replacing acute hospital beds with more preventive and community-based services that that was the position. I have reread Hansard to make sure I did not misunderstand her and I did not.

The second point which now seems apparent is that this position sits rather oddly both with the NHS’s Five Year Forward View, endorsed by the Government, and the devolution claims by the Chancellor for the Greater Manchester deal, announced with much fanfare in February. The Five Year Forward View made it absolutely clear that:

“England is too diverse for a ‘one size fits all’ care model to apply everywhere”.

That clearly means that NHS England expects variations between areas. Its five-year plan is very clear that the NHS balance should shift to preventive and community services and that funding incentives and systems should change. That was the purpose of my question to the Minister—what would happen if those sorts of changes took place and proved uncomfortable and controversial in some parts of the country? This is clearly a plan that moves activities and funding away from in-patient hospital care on an agreed local basis. That is very much reflected in the Greater Manchester plans, and the memorandum of understanding is consistent with that. It certainly gives the impression that once a deal is finalised with NHS England and local interests have agreed it, there will be no political interference from the centre.

The Minister’s utterances last Wednesday suggested something quite different. They also suggested a total muddle in the Government’s thinking on how this Bill sits with the Health Secretary’s powers under the Health and Social Care Act 2012. I can understand that the Government do not want to amend the 457 pages of that Act. Who would want to go through that agony again? What I cannot understand is why they want to undermine this broadly sensible Bill by failing to make it clear how NHS responsibilities can be transferred to combined authorities on an agreed basis that is consistent with the 2012 Act. All we have to go on regarding how things might work in practice is the current memorandum of understanding between NHS England and the Greater Manchester Combined Authority, which is not even the finished article—it refers to it being the build-up year—and the prospect of a ministerial order, the terms of which we have not seen. Even if we saw such an order, as I understand it from the Minister, there is no guarantee that the same arrangements would apply to subsequent deals. These would all be bespoke negotiations. What we do have is the Minister’s expressed view, which causes me the greatest concern, that the Health Secretary could overturn local agreements if he thought them wrong—or “bad”, in her words. In other words, agreements hammered out locally could be overturned by a Minister in Whitehall because he did not like the look of them or he had been got at by an adversely affected particular interest. I can assure the Minister, having been a Health Minister who sat in Whitehall and dealt with hospital closures and changes, that there is no shortage of people coming forward to tell you it is a thoroughly bad idea.

That is the position we are in and it is not particularly satisfactory. I do not believe that we need to get to a point where we rewrite the Health and Social Care Act 2012 but this House is a scrutinising House. We should not allow muddled legislation to leave it without attempting to make clear how it relates to earlier relevant legislation. This means that we have to look at the Bill before us, which is concerned with the functions of combined authorities, and be clear about how those authorities could assume NHS responsibilities if that is what people at the local level wanted to do. This is very important, given the size and prominence of the NHS in British life, and means putting in the Bill processes that could be adopted across the country, not just in Greater Manchester, that are as consistent as possible with the terms of the Health and Social Care Act 2012. We should not pass the Bill with the current level of uncertainty and lack of transparency on those processes. That can only lead to confusion in the minds of the public, the NHS and its staff, and indeed in local government, and will inevitably lead to legal challenges when some interest or collection of interests does not like the look of particular local changes and tries to challenge those given the Health Secretary’s powers. In all likelihood, that would mean leaving it to the courts to try to work out what Parliament intended.

This is the context in which I have drafted my amendment, which has several subsections. It starts by clearly stating that the Health Secretary has the power to,

“transfer to a combined authority any NHS responsibilities provided for in the Health and Social Care Act 2012”—

so a link is established between the two bits of legislation. However, he must be satisfied that,

“it is in the best interests of the authority’s population in terms of health outcomes”,

and it must be consistent with,

“his duty in section 2 of the 2012 Act … to improve the quality of health services”.

I am sure the Minister is totally cognisant of all the provisions of that splendid piece of legislation. In making such a transfer,

“the Secretary of State shall request that a memorandum of understanding between NHS England and the combined authority be agreed”,

that is consistent with his duties under the 2012 Act and which will last,

“for a minimum of 5 years, unless the combined authority fails to discharge its responsibilities under the memorandum”.

The proposed new clause goes on to say:

“Any memorandum … shall have regard to the Secretary of State’s duty under section 5 of the 2012 Act (the Secretary of State’s duty as to promoting autonomy) by … avoiding placing unnecessary burdens on the combined authority, and … specifying the key health outcomes to be achieved by the combined authority”.

Finally, the amendment requires the Health Secretary to make regulations setting out the requirements in the memorandum of understanding, and requires the combined authority to publish annually a report on how it is discharging its responsibilities.

I am neither a proud author nor make any claims to being a parliamentary draftsman. This amendment was crafted rather rapidly after Wednesday’s discussion before I had to travel from London early the next day. I am sure it can be improved. It is designed to outline the kind of provision that needs to be in the Bill setting out a process for transferring NHS responsibilities to combined authorities that both reflects the spirit of the Bill and is as consistent as possible with the Health Secretary’s duties under the 2012 Act. I have retained the idea of a memorandum of understanding between NHS England and a combined authority, à la Greater Manchester. I relate the Health Secretary’s powers to transfer responsibility by order to his duties under the 2012 Act. But once he has signed off that order for five years, which is the period I am suggesting, he should not interfere with the authority’s actions unless it is failing to discharge its duties under the memorandum of understanding.

If we are to make a success of devolution, we cannot have agreements made in good faith between people at the local level and the centre being abrogated because of a bit of pressure put on a Health Secretary by a number of particular interests—often vested interests, some would say. It is essential to have an amendment of this kind in the Bill. I hope the Government will be prepared to discuss such a provision across the Benches. It is not intended to be a partisan amendment. Indeed, I do not even know at this stage whether it finds favour with those on the Labour Front Bench in the other place—they seem to have one or two other things on their minds. I support the purpose of the Bill and more devolution of health responsibilities to combined authorities but that has to be done through a transparency process consistent with the 2012 Act until such time as that legislation is amended. I beg to move.

My Lords, I warmly welcome my noble friend’s amendment. I read with interest the debate in Committee last Wednesday about this very important issue, which goes right to the heart of the relationship between the combined authority and the National Health Service, and the integrity of the NHS as a national service providing uniformity of services across the nation.

Of course, our debate is mostly about Greater Manchester. I very much support the thrust of what is happening in Greater Manchester. I want to see the same in greater Birmingham. But we have to get to the bottom of the essential relationship between local authorities, the combined authority and the NHS. This is not an academic exercise. It would be all too easy for a Chancellor faced with enormous financial pressures, as he is, to transfer responsibility to local government or combined authorities and then deny responsibility, putting the blame firmly on local government and using local government legitimacy to defend the rationing of services to an extent that the NHS has never seen.

Of course, one can go back to the foundations of the NHS, to the arguments in the post-war Attlee Government between Morrison and Bevan. Morrison had been leader of the London County Council, which before 1948 had been the largest hospital authority in the world, and wanted local government to run the NHS, but Bevan was concerned that it would be a very patchy service. Bevan won the argument and we had a national NHS. So the arguments we are having today will be very familiar throughout the history of the NHS. The key question is: how do we get the advantage of local government leadership and democratic legitimacy while ensuring that we have what we would recognise as a national NHS? That is why this is such an important debate and why the Bill lacks clarity.

The Minister was very helpful on Wednesday and spelled out a number of principles. She said first that healthcare services,

“must remain firmly part of the NHS … and the position of NHS services in the area in relation to the NHS constitution and mandate cannot change”.

She said that,

“all national standards for health services … must … be complied with”.

I take that to mean that the NICE technology appraisals will be fully complied with as well. She said:

“The Greater Manchester deal does indeed put health as a function of the combined authority and not of the mayor”,

but that it will not prejudice arrangements elsewhere, which is a very important factor—for me, certainly—in relation to greater Birmingham, although very few of us in greater Birmingham actually want a mayor and very much object to the blackmail that is being put upon us by the Government forcing us to have a mayor in order to accept the greater responsibilities that would be given. We had a referendum in Birmingham not so long ago when we voted very clearly not to have an elected mayor. It is highly objectionable for the Government now to come along and say, “We don’t really care what the public thought, we insist that you have a mayor”. Significantly, the Minister went on to say that,

“in the field of health and social care, all decisions about Greater Manchester will be taken with Greater Manchester”,


“clinical commissioning groups … providers, patients, carers and partners to shape the future of Greater Manchester together”,

and that the Bill will give local authorities within the combined authority,

“the powers to participate in … strong, collaborative partnerships”.—[Official Report, 24/6/15; col. 1672.]

I would just say that they already have statutory freedom to enter into those partnerships.

In principle, the key issue is that all decisions about Greater Manchester will be taken by Greater Manchester. The Minister referred to the two governance bodies which will prepare a strategic plan and commission Greater Manchester-wide services, but what is unclear is who on earth the decision-maker in Greater Manchester is. Where do decision-making authority and accountability lie? Which of the many bodies in that great region will be held accountable for NHS services and planning and strategic direction? One of the real risks here is that, far from giving Greater Manchester a huge opportunity to lead change in the health service and integration with social care using the fantastic life science base in the city of Manchester, an additional bureaucratic tier is being added.

No decision about Greater Manchester can be taken without Greater Manchester—but what does “Greater Manchester” stand for? Is it the Greater Manchester Combined Authority or is there a different definition of Greater Manchester? Does the Greater Manchester Combined Authority have a power of veto over the strategic plans and Greater Manchester-wide commissioning decisions of NHS commissioners? If it does not, does that mean that NHS bodies in Greater Manchester can ultimately ignore what the combined authority says? Does NHS England have a performance management relationship with the Greater Manchester Combined Authority?

We come to the point raised by my noble friend Lord Warner. The Minister said that if the Manchester authorities made a wrong decision, she was sure that the Secretary of State would have to intervene. The question is how. I remind the noble Baroness of Section 47 of the Health and Social Care Act 2012. This amends Section 253 of the National Health Service Act 2006, which relates to the Secretary of State’s power to direct NHS bodies and so is the crucial relationship. The 2012 Act does not give a general power to give directions to NHS bodies and an amendment was necessary to enable the Secretary of State to give power to direct NHS bodies—by reason of an emergency—in order to ensure that a service under the Act is provided. My assumption is therefore that if the Secretary of State transferred a function from an NHS public authority to a combined authority under Clause 6, the emergency power of direction in Section 47 of the Health and Social Care Act 2012 would and could be used in relation to the combined authority. However, this can happen only by reason of an emergency. The Government deliberately set the bar very high in the 2012 Act. I am not aware that this has yet been tested in the courts but my reading of the Act is that the power of intervention by the Secretary of State in relation to the combined authority is actually going to be very limited.

The Minister said on 24 June at col. 1672 that for the purposes of the Bill, NHS bodies are covered by Clause 6. That is highly significant because Clause 6 provides a very wide order-making power. Indeed, the second report of the Constitution Committee said that Clause 6 is broadly framed. It,

“would allow the Secretary of State to reallocate very extensive powers from central government to local government, … This equates to a significant extension of Ministers’ powers—powers which are so broadly framed that they could potentially involve the amendment of primary legislation by order, known as Henry VIII powers”.

That is why I am very suspicious of Clause 6. My reading of it is that the commissioning responsibilities in their entirety could be transferred to the combined authority and CCGs abolished. That may be a good thing—I am not arguing against it—but I want to know what the intention is. Can the Minister help with a definition of “public authority”? The clause defines public authority as including,

“a Minister of the Crown or a government department”,


“does not include a county council or a district council”.

Can the Minister tell me which NHS bodies are included in that definition? My reading is that it would be quite possible to abolish the Department of Health, and with it, of course, Department of Health Ministers, simply by taking an order through both Houses of Parliament. My noble friend Lord Warner and I may say there is an argument for that—indeed, there is a strong argument for pulling the Department of Health and the DCLG together; I remind your Lordships that Nye Bevan was Minister for Health and Housing—but a simple order-making power which could have such a draconian impact on the way the NHS is organised does not seem to me to be the way forward.

My noble friend Lord Warner elegantly sets out the kind of strategic framework that is necessary to enable this devolution and delegation to happen. The Minister must be clear about what is likely to be delegated or potentially devolved. For instance, is national speciality commissioning to be delegated or devolved to the Greater Manchester Combined Authority? Would that also involve the cancer drugs fund? Will that be devolved to Greater Manchester? Is resource allocation to CCGs to be devolved to Greater Manchester? Is CCG performance management to be devolved or delegated to Greater Manchester? What specific powers are going to be handed over by NHS England to Greater Manchester? The memorandum of understanding is clear that it is about devolution and the eventual delegation of responsibility. It is the duty of the Government during the passage of the Bill to spell out exactly what is going to be devolved and delegated.

It would be wrong of this House to allow Clause 6 to pass in the current state of uncertainty when it could have such a dramatic effect on the National Health Service. I very much hope that the Minister will reflect on this before Report so that we can come back for a fully informed debate and deal with it broadly in the way suggested by my noble friend Lord Warner.

My Lords, when I read the announcement about the decision for Greater Manchester and the fact that £6 billion of NHS funding would be devolved to that area, I asked myself two questions: how do they know it is £6 billion and who will make what decision as a consequence of this announcement? After listening to the last 20 minutes or so, I have come to the conclusion that I am none the wiser.

I pay tribute to the noble Lords, Lord Warner and Lord Hunt, for having so succinctly explained what the problems are and could be. I understand that there would inevitably be variations area by area and there needs to be some flexibility in the hands of Ministers to meet what is deemed to be right for a particular local area, but one cannot permit a situation to continue in which there is simply nothing in the Bill in relation to the powers of a combined authority. I think I noted the words of the noble Lord, Lord Warner, correctly when he said that we must make it clear how NHS responsibilities can be transferred to a combined authority and remain consistent with the 2012 Act. That seems to be one of the key points that we have to be clear about. Otherwise, a whole set of problems could arise as a consequence of that lack of clarity in the Bill. I sincerely hope that between now and Report the Minister considers the questions posed today so that we can have a set of amendments that the House might be able to agree upon.

My Lords, very briefly, I support this probing amendment which has been so eloquently moved and spoken to by my noble friends Lord Warner and Lord Hunt. I said in our debate last week that I suspected that we would need a second debate for clarification of NHS responsibilities and their relationship with the combined authority. I know that the Minister will be anxious to come to the Dispatch Box to give us much clarification this evening, because that relationship needs to ensure that there is no confusion at local level between the combined authority and the NHS.

In our debate last week, I raised 10 questions with the Minister, which I am not going to repeat. I am sure that she will be writing to me with detailed responses, but I want briefly to refer to two of the questions which my noble friends raised again tonight. First, I said that we do not want to leave NHS organisations and their boards, which implement policies by the combined authorities, open to legal challenge that they are acting outside or in conflict with legislation. I am sure that the Minister will want to clarify that point again.

Secondly, I raised the issue of whether the Greater Manchester strategic health board and its relationship with the combined authority needed any statutory powers and whether there was any requirement to amend the Health and Social Care Act 2012. Again, the issue in that general relationship has been raised tonight and I am sure that the Minister will want to clarify that point further. This probing amendment is surely to ensure that the devolution which we all support for Greater Manchester in health and social care can be effected efficiently. We will reflect further on the questions raised tonight in the light of the Minister’s response as we move towards Report.

My Lords, I thank all noble Lords who have made remarks this evening. A number of questions have been raised. Perhaps I might address the amendment generally and then come to specific questions that noble Lords asked.

Amendment 44DD makes specific provisions about the transfer of health and social care NHS responsibilities, as noble Lords have said, including a requirement for an annual report by a combined authority which has assumed NHS responsibilities. It is important to reiterate this evening what I have said in earlier debates. The Government are committed to the view that health and social care services in any area, whatever devolution arrangements are entered into, must remain firmly part of the National Health Service and social care system—the noble Lord, Lord Hunt, alluded to this—that all existing accountabilities and national standards for health services, social care and public health services will still apply, and that the position of NHS services in relation to the NHS constitution and mandate cannot change.

As we have discussed throughout our debates on the Bill, the context in which the Bill’s powers will be exercised is that of implementing bespoke devolution deals, agreed with individual areas and reflecting each area’s proposals and ambitions for devolution. The Bill is an enabling Bill and I do not believe that it is necessary to include specific requirements about how particular powers will be devolved. However, I hope that tonight I can provide more clarification on specific questions that noble Lords asked.

Within the legislative framework that the Bill is creating, the safeguards are to be provided by not making specific provision in the Bill, such as provision about any memorandums of understanding and their relationship with the National Health Service Act 2006, as amended by the Health and Social Care Act 2012. Safeguards are in fact provided by the requirement that the implementation of any particular devolution deal must be debated and approved by both Houses of Parliament.

My Lords, if I may intervene on that, of course I understand that an affirmative order allows Parliament to have a debate, but so what? Nothing else happens. I think that the number of affirmative orders that have been rejected is seven. It is certainly a handful, so in reality we are giving executive power to Ministers to make absolutely any decision they like. The fact is that parliamentary scrutiny is virtually nonexistent. Of course, if we were able to amend or delay statutory instruments, as the royal commission on Lords reform argued some years ago under the noble Lord, Lord Wakeham, that would be different—but we are not, so I am afraid that saying that an affirmative order is a protection simply is not true.

My Lords, we have talked about the Secretary of State’s ability to intervene, which in itself is also a check and a balance. The orders will be debated through both Houses of Parliament. I will make some progress on this, and if the noble Lord wants to intervene further, he is very welcome to.

For the debates it will be important that full details of the deal concerned, how it was arrived at and the outcomes expected of it will be fully available to Parliament. As I said in the earlier short debate, I am ready to consider whether the standard Explanatory Memorandums are sufficient to ensure that Parliament has all the information it needs in this unprecedented process of devolution. As to a requirement for a combined authority to publish an annual report on its deal in relation to health, there will be a process, as I said in one of our debates last week, for evaluating the progress on each deal agreed with each area. For example, the Greater Manchester deal has an extensive programme of evaluation, with evaluations being public documents available to all with an interest in the area and the progress being made. I do not believe that it is appropriate to make a requirement about the reporting or evaluation of some particular aspect of a deal—an aspect which may not be in all the deals that are agreed.

I turn to some specific points that noble Lords have made. The noble Lord, Lord Warner, talked about the Secretary of State for Health overturning decisions if he did not like them. It is a bit more than that. I think he could intervene if he thought that decisions would be detrimental to people’s health or well-being. That was the point I was hoping to convey, but perhaps I did not do it articulately enough.

I am being totally confused by the Minister. If she is saying that the detail of a deal is enshrined in regulations, the Secretary of State has signed off that deal. That implies that if there are any controversial issues around in, say, Greater Manchester, they will be dealt with in the orders that come before both Houses of Parliament and which he will have signed off. If he has signed off those orders and they have covered the transfer of resources, for example, from hospitals to preventative services, why should he need to intervene on such a transfer from a hospital to these other services? The Secretary of State seems to want to have it every which way: you agree the deal, you put it in an order and you still reserve the right to veto things on a subsequent level. That is what the Minister seems to be saying.

My Lords, it is what I am saying but I am also saying that the detail of the deal, which noble Lords have requested full sight of, will go through both Houses of Parliament. It is important that the Secretary of State, of whichever department, can intervene in any matter which he feels is to the detriment of the public. That is what I am saying but maybe we mean different things by “intervene”.

My Lords, this really goes to the heart of this matter. The Secretary of State under my amendment would have to assure himself that having a deal in the first place was for the benefit of the population of the combined authority. He is actually guided in that—also by the 2012 Act—so he cannot agree a deal that is likely to adversely affect that population. He would be in breach of his own duties and responsibilities. If he has then agreed a deal that is not abrogating NICE responsibilities or access standards or anything else, but is merely shifting the balance of resource provision and service provision between one set of services currently and another set of services that better meet that population’s need—which is indeed what the Five Year Forward View says should be done—and he signed that all off in an order, why does he need a power to intervene again during the duration of that order because he thinks something is wrong? He has agreed what they are going to do.

Perhaps I have not articulated this—in fact, I wonder if the noble Lord and I are talking at cross-purposes. I am not talking about the Secretary of State intervening in the process of the deal and of the order going through both Houses; I am talking about subsequently, if matters went awry in a particular area. However, that would be the obligation of the Secretary of State whether it was for local government or health or whatever area we will be talking about. Perhaps we can leave that there and return to it in due course.

The noble Lord, Lord Warner, also made the point that it will always be the Secretary of State’s view that prevails. The noble Lord suggests that however great the local consensus might be, the Secretary of State has the power to override this. This argument lacks the essential element, which is how the Secretary of State will exercise his powers. These powers will be exercised reasonably, having regard to all relevant considerations, including local views and the NHS’s own plans in the forward view. In terms of service reconfiguration, the Government have pledged that all service changes should be led by clinicians and patients and not be driven from the top down. The Government have outlined strengthened criteria that decisions on NHS service changes are expected to meet. The criteria are: support from GP commissioners; clarity about clinical evidence bases underpinning proposals; arrangements for public and patient engagement, including local authorities being further strengthened; and the need to develop and support patient choice.

The MoU between the NHS England and Greater Manchester makes it clear that plans for devolution will align and support the objectives set out in the Five Year Forward View. The forward view sets out the NHS’s own plan for the next five years, supporting local areas to take forward plans for transformation, including an increased focus on prevention and integration of services. On the aspect of the 2012 Act that noble Lords have asked about, we have been very clear that existing NHS standards and accountabilities will be upheld. The NHS Act 2006 as amended by the 2012 Act sets out clear duties held by the Secretary of State in relation to the health service. For example, the 2006 Act puts a duty on the Secretary of State to,

“have regard to improvement in quality and reducing inequalities”,

and the duty is exercised in a way that supports local areas. He and other noble Lords asked about the compatibility between the 2012 Act and what has been proposed here. I can confirm that they are compatible with each other.

The noble Lord, Lord Hunt, asked who actually takes the decisions in Greater Manchester. The memorandum of understanding between NHS England and Greater Manchester provides that decisions are to be taken by the partnership between the local authorities and the health bodies—in other words, the Greater Manchester joint commissioning board as a board would operate. This reflects the principle that decisions are devolved to the most local level that is most effective and beneficial for patients and communities.

Who do I sue then? Who is accountable in this great mushy edifice that has been created? Who is the accountable officer? That is what we are trying to get to—who can you point the finger at and say, “You are responsible ultimately for what happens in Greater Manchester’s health system”? That does not seem to be coming through at all in this.

My Lords, there is a partnership board. Who you would actually sue on that board I do not know. It might be the chairman. I imagine that the ultimate accountable person, who you would actually sue, is the board itself because it is jointly responsible for the decision-making. It is a partnership board.

In a previous life I have been both a senior NHS manager and a leader of a council. This is as clear as mud. If, for example, the partnership board decided it wanted to reconfigure local healthcare and a hospital was to be closed, who would be held responsible ultimately by the public for that decision? Would the Secretary of State ultimately be able to stop that decision? Coming back to what the noble Lord, Lord Hunt, said, where would specialised commissioning fit in? It would not be a national standard, but would what the Minister calls the health partnership be able to move away from decisions made by NHS England on specialised commissioning? If it did, who would be able to overturn that decision? Who would be able to ask for a review of that decision, and to whom?

We are going nowhere, my Lords. Let us have another go. Let us follow up the issue of the closure of 50 beds in a Manchester hospital because the money is going to be used for preventive services and more services in the community. The partnership board has agreed that, and the consultants in the hospital affected take umbrage at that. They wind the public up—this is a well-tried and tested form of action in the NHS—get some money from a pro-bono lawyer and, under the provision of the noble Lord, Lord Hunt, they sue somebody. The Secretary of State has signed off the partnership board’s deal. Are they going to sue the partnership board? Are they going to sue the chairman of the trust affected for letting his 50 beds go? Are they going to sue the Health Secretary? Or are they going to sue the chairman of NHS England for agreeing this deal? I think we need to know who. This is not an implausible case I am giving; it is everyday bread-and-butter stuff in our British NHS.

My Lords, as I understand it, it is the partnership board. I cannot add any more to this. As I understand it, the accountable body is the partnership board.

Is the partnership board a statutory body or a corporate board in law, or is it just a partnership?

I would imagine it is a statutory body. May I confirm that, because I am not entirely certain? I will confirm that either during this debate or after the dinner break on subsequent amendments.

I would like to help, if I might, because the noble Baroness is obviously in difficulty. This question is a health issue and not her department. When we are talking about suing, we are talking not about suing for damages; we are talking about judicial review. I therefore suggest that somebody gives the Minister some advice, not necessarily now but certainly before we get to Report, on where and against whom action for judicial review might be issued in relation to decisions taken around the health service by whomever is responsible under these deals. That is the best way to clarify the position. I do not expect the Minister even with the assistance of the Box to be able to answer that now, but it should be answerable before we get to Report.

I thank the noble Lord very much indeed for that intervention.

Finally, the noble Lord, Lord Hunt, asked me to define “public authority”. It is any authority in the public sector, including all public bodies and NHS bodies, Ministers of the Crown and government departments. New subsection (4) in Clause 6 provides that, in the case of the Bill, it,

“does not include a county council or district council”.

With that, I ask the noble Lord to withdraw his amendment.

My temptation is to say, “You must be joking”. This has been a very interesting and illustrative debate. I do not think that many people, not just on the Labour Benches but on this side of the House, have found illuminating some of the answers to the questions that we asked. I want to make a helpful suggestion to the Minister. I strongly suggest that she facilitates a meeting between some of us with herself and Health Ministers—and possibly even NHS England—to explore this issue as quickly as possible. We are in danger of creating total confusion, not just among ourselves but among people in the outside world and in the NHS, who will read these debates and be thoroughly confused as to what is going to happen to them in the coming years. I suggest that we have a meeting and, on that basis, I beg leave to withdraw my amendment.

Amendment 44DD withdrawn.

House resumed. Committee to begin again not before 8.31 pm.