Legal Analysis of the Clause 1 Amendments Clause 1 amendments This Briefing comments on: (1) the Williams, Thornton

and Mackay duty amendments to Clause 1 (secton 1(2)) relatng to the duty to provide Page 2, lines 2-4 (2) the Thornton definiton amendment to Clause 1 relatng to a definiton of the health service in England Page 2, line 7 (3) the absence of any tabled amendment to Clause 1 (secton 1(3)) relatng to services being free of charge (1) the Williams, Thornton and Mackay amendments to Clause 1 (secton 1(2)) relatng to the duty to provide Page 2, lines 2-4
The Williams duty amendment tabled by Baroness Williams of Crosby, Lord Patel and

Baroness Finlay of Llandaff is as follows: Page 2, line 2, leave out subsecton (2) and insert ( ) The Secretary of State must for that purpose provide or secure the provision of services according to this Act. Of the three amendments currently tabled in relaton to Clause 1: secton 1(2) (as at 21 October 2011), the Williams amendment might appear the strongest, as it declares clearly the Secretary of States duty to provide or secure provision of services in accordance with the Act. It achieves this by almost exactly reproducing the current secton 1(2) of the Natonal Health Service Act 2006 though it changes in accordance with to according to, and whether there is any difference in meaning between these two phrases is unclear. However, the amendment on its own is not enough, because just like the current secton 1(2), it is not a stand-alone duty: it would depend for its meaning on other provisions of the Act. And because no other provision of the Bill currently requires the Secretary of State to provide or secure provision of health services, then without other changes, namely to Clause 10, it would be essentally without any real effect. The Thornton duty amendment tabled by Baroness Thornton, Lord Hunt of Kings Heath and Baroness Finlay of Llandaff is as follows: Page 2, line 3, after to insert provide or 1

This amendment is weaker than the Williams amendment, because it would accept the replacement of the current secton 1(2) with the proposed secton 1(2) in Clause 1, and add in provision, as well as securing provision, so that if the amendment was accepted the new secton 1(2) would read: For that purpose, the Secretary of State must exercise the functons conferred by this Act so as to provide or secure that services are provided in accordance with this Act. Essentally though, this is the wording (with the excepton of provide or) that the Consttuton Commitee considered, and really adds nothing of substance. Again, the additon of the words or provide atach to nothing if the Secretary of State has no other functons which require him/her to provide services. The Mackay duty amendment tabled by Lord Mackay of Clashfern is as follows: Page 2, leave out lines 2 to 4 and insert (2) For that purpose, the Secretary of State (a) retains ultmate responsibility to parliament for the provision of the health service in England, and (b) must exercise the interventon and other functons of the Secretary of State in relaton to that health service so as to secure that services are provided in accordance with this Act. Page 2, line 7, at end insert (4) For the purposes of this secton, the interventon functons of the Secretary of State in relaton to the health service in England are the functons of the Secretary of State under (a) secton 13Z1 (failure by the Board to discharge any of its functons), (b) secton 253 (emergency powers), (c) secton 82 of the Health and Social Care Act 2008 (failure by Care Quality Commission to discharge functons), (d) secton 67 of the Health and Social Care Act 2011 (Monitor: failure to perform functons), (e) secton 242 of that Act (failure by NICE to discharge any of its functons), (f) secton 266 of that Act (failure by the Informaton Centre to discharge any of its functons), and (g) secton 285 of that Act (breaches of dutes to co-operate). The Mackay amendment is both dangerous and enlightening. It introduces a politcal, rather than a legal, statement as subsecton (a), which is unlikely to get past the Parliamentary draughtspersons. More importantly in (b) it makes clear that the focus of the new secton 1(2) is interventon by the giving of directons in the event of seven listed circumstances of failures, emergencies and breaches of duty to cooperate. This is a far cry from the current secton 1(2), and demonstrates the governments intenton of 2

removing the Secretary of States duty to provide or secure provision of health services in England. Although the Mackay amendment also refers to other functons, in this regard it is just like the governments proposed secton 1(2) in Clause 1, and offers nothing. What should be done about section 1(2)? The scheme of the Bill is to get rid of the governments duty to provide or secure provision of health services in England. This current duty is based on secton 1(2) and, in partcular, secton 3(1) of the 2006 Act. By removing the Secretary of States duty to provide in secton 3(1), the reference to that duty in secton 1(2) becomes virtually meaningless. These two subsectons therefore need to be considered together. The Williams amendment would appear to be equal to the job of maintaining the current positon, if the Secretary of States duty to provide was retained in secton 3(1). The Thornton and Mackay amendments would not be equal to the job in that event, because they do not depend on secton 3(1) for their meaning and effect (but equally, if the Secretary of States duty to provide was retained in secton 3(1), there would be no sense in the governments proposed secton 1(2)). If the Secretary of States duty to provide was not retained in secton 3(1) as is currently proposed in Clause 10 then it is difcult to see how the current positon could be maintained, without giving dutes to provide or secure provision to the NHS Commissioning Board and clinical commissioning groups. For example, secton 1(2) could read: The Secretary of State must for that purpose provide or secure provision of services throughout England [according to][in accordance with] this Act, and the exercise of the functons of the NHS Commissioning Board and clinical commissioning groups shall be regarded as exercised by the Secretary of State. This wording would mirror the current secton 3(2): services provided under (a)secton 83(2) (primary medical services), secton 99(2) (primary dental services) or secton 115(4) (primary ophthalmic services), or (b)a general medical services contract, a general dental services contract or a general ophthalmic services contract, must be regarded as provided by the Secretary of State. But it is weaker than presently because the Board and CCGs do not provide or secure provision. 3

Another possible formulaton of secton 1(2) might therefore be: The Secretary of State must for that purpose provide or secure provision of services throughout England [according to][in accordance with] this Act, and the exercise of the functons of the NHS Commissioning Board and clinical commissioning groups shall be regarded as exercised in furtherance of that duty. But this is stll not enough because under the current system, PCTs have the duty to provide or secure provision (through delegaton, but also in some specific circumstances directly) and when they commission, there is always the backdrop of that duty. If the exercise of Board and CCG functons was to be regarded as being in furtherance of the Secretary of States duty, there would stll be a gap in the statutory scheme, because CCGs and the Board do not have a duty to provide or secure provision. The conclusion that must be reached is that it is difcult to see how, if the Secretary of States duty to provide under secton 3(1) is repealed, an amendment to secton 1(2) along the above lines would be sufcient to maintain the current positon. Whatever amendment is made to s1(2) it must be recognised that it cannot be amended to give it the strength it now has in the 2006 Act, simply because the major functon of the Secretary of State to which s1(2) applies, namely the duty to provide in s3, is being repealed. (2) the Thornton defniton amendment to Clause 1 relatng to a defniton of the health service in England Page 2, line 7 The Thornton definiton amendment tabled by Baroness Thornton and Lord Hunt of Kings Heath is as follows: Page 2, line 7, at end insert ( ) For the purposes of this Act the health service in England is defined as those services provided under secton 3 of this Act. This would be a disastrous definiton of the health service in England because the services listed under the proposed new secton 3 do not provide a comprehensive definiton of the NHS: health services would also be provided under several other sectons, including sectons 2A, 2B and 3A, and under Schedule 1. But we suspect that it is a probing amendment, and that it helpfully raises the queston of what the health service in England would consist of if the Bill was enacted. Currently there is no definiton, and it would seem to make sense to include one not least because the proposed changes to secton 1(3) would mean that the qualified 4

guarantee of free access to health services would apply in future to services provided as part of the health service in England. At present, secton 1(3) guarantees free access to services so provided by the Secretary of State pursuant to his duty to provide or secure provision in accordance with the Act under secton 1(2). It is also necessary to be clear that services provided under public health functons (Clause 8: secton 2A, and Clause 9: secton 2B) are also part of the health service. But at the moment, for the purposes of Part 3 of the Bill (relatng to Monitor, Competton, Licensing, Pricing etc. Clauses 58 147), it is provided in Clause 60(4) as follows: the NHS means the comprehensive health service contnued under secton 1(1) of the Natonal Health Service Act 2006, except that part of it that is provided in pursuance of the public health functons (within the meaning of that Act) of the Secretary of State or local authorites. This seems to imply that public health services are part of the health service but obviously they would not be covered by the Thornton definiton amendment. However, it remains unclear why there should be a definiton of the NHS for the purposes of Part 3 which is different to the rest of the Bill. Put another way: why does the NHS mean something different from the health service in England, at least for the purposes of competton, pricing and the like in Part 3? Clause 11: new secton 3A would confer a power on CCGs to arrange services for the purposes of the health service. These would also be excluded by the Thornton amendment. It would therefore be wise to clarify these issues before adoptng a definiton of the health service in England. (3) the absence of any tabled amendment to Clause 1 (secton 1(3)) relatng to services being free of charge It is of concern that no amendment has been tabled (as at 21 October 2011) in relaton to Clause 1: secton 1(3). At present, secton 1(3) of the 2006 Act reads: (3) The services so provided must be free of charge except in so far as the making and recovery of charges is expressly provided for by or under any enactment, whenever passed. Under Clause 1, this would read: (3) The services provided as part of the health service in England must be free of charge except in so far as the making and recovery of charges is expressly provided for by or under any enactment, whenever passed. 5

The differences between the two are highlighted. If the current positon is to be maintained, secton 1(3) should not be changed. If the Act is amended, this makes a comprehensive definiton of the health service in England, even more crucial.