IN THE MATTER OF THE HEALTH AND SOCIAL CARE BILL 2011 AND IN THE MATTER OF THE DUTY OF THE

SECRETARY OF STATE FOR HEALTH TO PROVIDE A NATIONAL HEALTH SERVICE

FURTHER ADVICE

Introduction

1. I am asked to provide 38 Degrees with further advice following response from the Department of Health and a number of MPs to my previous opinion as to the effect that the Health and Social Care Bill (the Bill) (as currently promulgated). I have considered all the material and have responded to each in turn below.

Department of Healths response

The loss of direct provision by the Secretary of State (paragraph 3 and 4)

2. The Opinion made it clear that at present the Secretary of States duty to provide a range of services under s3 NHS Act is delegated to other bodies. However, it
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seems to me that the loss of a duty to provide services to meet all reasonable requirements is a significant and noteworthy event in legal terms, even if the duty is delegated to other bodies at the moment.

3. Paragraph 4 of the response accepts that the legal powers have been curtailed (which seems to me to be an important concession). Paragraph 4 then goes on to downplay the significance of this by saying the changes simply make it clear that it should not be the responsibility of Ministers to provide or commission services directly. As I said in my Opinion, the government has made no secret that this a leading rationale behind the Bill. I have simply flagged up some of the ways, in legal terms, that this is to be achieved. It is true, as paragraph 4 of the response states, that the Bill includes powers for the Secretary of State in relation to matter such as reducing inequality, increasing effectiveness and quality, but all these must be viewed in the context of the loss of the duty to provide services currently in section 3 NHS Act 2006, it seems to me.

Political accountability (paragraph 5)

4. It is also true, as set out in paragraph 5 of the response, that the Secretary of State remains legally accountable for the statutory functions conferred on him by the Bill, but the simple fact is that these functions will no longer include the duty to provide services under s3 NHS Act 2006.

The duties in section 3 and section 1 (paragraphs 6 and 7 of the response)

5. The response again accepts in paragraph 6 that the duty under section 3 NHS Act 2006 will be lost, and again emphasises the other ways in which the Secretary of State will have powers to influence and control the NHS, which I do not dispute.

6. Paragraph 7 of the response also accepts that there will be a severance between the s1(1) duty to promote a comprehensive health service, and the duty to provide services as currently set out in s3 NHS Act 2006. As I explained in the Opinion these duties are both currently placed upon the Secretary of State, and case-law states that in carrying out the s3 duty, the Secretary of State must always bear in mind his duty under s1(1).

7. As paragraph 7 of the response accepts CCGs will not have a duty to promote a comprehensive health service. Paragraph 7 of the response goes on to argue though, that CCGs must have regard to the duty of the Secretary of State under s1(1) in exercising their own functions under section 3. I am not at all sure that this is a legal requirement and is certainly not expressly stated in the Bill. The reason the courts have said that the Secretary of State must always have regard to the s1(1) duty when discharging the duty to provide is only because both duties are placed on the same person. I do not think there is a legal principle which says that one public body (or person) needs to have regard to another public bodys duties when carrying out its own functions. If this is the intention it would seem sensible to me that such a duty is expressly stated in the Bill.

Duty to provide a national health service (paragraph 8 and 11) 8. My point about a national health service, was based upon the proposed changes to s3 NHS Act 2006. At present it is the Secretary of States opinion in law that is important as to the reasonable requirements of provision for the health service as a whole and what services will be part of the health service for the purposes of s3(1)(d) and (e) (albeit that this can and is delegated to PCTs). The changes to s3 brought about by the Bill would mean that each CCG would be free to apply its own opinion to these issues, in relation only to the persons for whom it has responsibility. Thus, the particular legal security currently provided by s3 NHS Act 2006 and placed upon national government would be lost. The

response does not deny that this is the case, whilst emphasising the functions that will remain nationally applicable.

9. As I pointed out in my Opinion, of course some people will see this shift of the duty to CCGs as a good thing, but it cannot be denied that that is the governments intention. It is true as set out in paragraph 11 of the response that the Secretary of State has significant powers which could be used to mitigate the effects of any postcode lottery in relation to the provision of services, but I do not think that placing the s3 duties on each individual CCG could be said to lessen the problem some perceive in the potential for different levels of service in different parts of the country.

The duty of autonomy (paragraph 9 of the response).

10. The criticism of the Opinion in this paragraph is that the argument that the Secretary of State would have to show that any interference with autonomy of other bodies was essential or really needed overstates the limitations on the Secretary of State. This is because, it is said, that the limitations are tempered by the phrase so far as is consistent with the interests of the health service.

11. I accept that this phrase could have some impact on the duty. However, the phrase interests of the health service is not defined (I also accept that the description of the health service as compreshensive could be part of it) and one could envisage extensive legal wrangles as to exactly what the phrase means. And as set out in the Opinion, the Departments own explanatory notes to the Bill describe an overarching principle that the Secretary of State should act with a view to promoting autonomy in the health service and state that, in relation to any requirements imposed by the Secretary of State, if challenged, the Secretary of State would have to be able to justify why these requirements were necessary.
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Legal challenges (paragraph 12 of the response)

12. In my Opinion I described how PCTs are currently the subject of legal challenges in relation to the provision of services, and that CCGs would be in that position if the Bill becomes law. The Department agrees with this analysis.

Miscellaneous (paragraphs 13 and 14)

13. The Department argues that the Board will have a duty to arrange the provision of services as necessary to meet all reasonable requirements. There are two points to make about this. Firstly, the Bill does not include such a duty in clause 12. All that clause 12 does is to provide the Secretary of State with the power to make regulations which include such a duty (these regulations have not been drafted so far as I am aware and would need to be approved by Parliament). Second, any such duty would only relate to very limited services (dental services, services to the armed services and prisoners are the only services specifically mentioned in clause 12 although others can be prescribed).

14. I take on board the point that CCGs would only be able to arrange for provision (that is, commission) services, but that does not affect anything I say in my Opinion.

Letters from Stephen Phillips MP and Guy Opperman MP

15. Mr Phillips criticises the fact that 38 degrees has not published my instructions as well as the Opinion and any oral advice. It is said that this calls into question the validity of the advice given. I do not think this is the case. My Opinion sets
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out clearly the basis of the advice and the concerns expressed by 38 degrees and I do not think this criticism has any basis.

16. Mr Phillips accepts that s3 s the main duty in relation to the provision of health services. The letter is then drafted in such a way as to suggest that the only changes to s3 are necessary because PCTs are being abolished and CCGs will step into their shoes that the duty will now fall to CCGs. The letter neglects to explain that the s3 duty is currently a duty imposed on the Secretary of State (albeit delegated to PCTs).

17. There is then a confused passage about s1(1) NHS Act 2006 which the letter suggests, wrongly, that my Opinion calls meaningless. 38 degrees will already have seen the importance that the Department of Health places on s1(1) in its response. The letter does not address the loss of the link between s1(1) and s3 (see above). And finally Mr Phillips confirms a point I made in the Opinion that the government is not trying to hide the fact that it does not believe that the Secretary of State should be directly responsible for the provision of services.

18. I do not think that there any additional points in Mr Oppermans letter.

19. I think what both letters demonstrate is that it is possible to set out a description of the proposed system under the Bill, so that in practical terms it does not appear that anything will really change other than the name of the local health body providing a service. This can be done by glossing over the fact that the Secretary of State is losing an important legal duty, and by giving little weight to the duty to promote autonomy.

Andrew Lansley MP 6 Sept 2011 Hansard col 192 20. The same can be seen in the Secretary of States comments in Parliament last week, although I think he has overstepped the mark when he said
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Clause 1 also makes it clear that the Secretary of State must secure the provision of that service. The duty to provide certain services to which 38 Degrees refers is a duty that I, as Secretary of State, currently delegate to primary care trusts. In future, the Bill willin exactly the same way pass that duty of the Secretary of State to the NHS commissioning board and to clinical commissioning groups. In other words, the situation will be legally unchanged. The Secretary of State has a duty, and discharges it through organisations to which he or she delegates that power. Strictly speaking, they have more direct statutory duties, but the position in terms of the duty to provide will not change.

21. Legally, this is wrong and misleading. It might be permissible to say that, practically speaking, the Bill will not have very much effect because at the moment the s3 duty (which I assume is the duty that Mr Lansley is referring to here) is delegated to PCTs. But the Bill will not in exactly the same way pass the duty to the Board and to the CCGs.

Conclusion 22. I hope I have responded to the criticisms that have been made. I would be happy of course to discuss further if this would assist.

STEPHEN CRAGG Doughty Street Chambers 11 September 2011