The Home Secretary’s statement on the UK Border Agency was repeated in the House of Lords by Lord Henley this afternoon.

My exchange with him was as follows:

“Lord Harris of Haringey: My Lords, is it not the case that Home Office Ministers frequently visit our border posts? In the circumstances, is it not surprising that they did not visit sites where these pilots were taking place—or if they did, that they did not notice or hear from the staff concerned how the pilots had been extended? Can the Minister also tell us what arrangements Ministers made to monitor the pilots and the way in which they were working?

Lord Henley: My Lords, speaking for myself, I have to say that I have not visited any of the pilots, but then I have not been in the Home Office for that long. No doubt I will make inquiries of my honourable and right honourable friends and let the noble Lord know what visits have been made. However, I believe that Ministers have visited ports and airports on quite a regular basis to see how these things operate. I certainly was intending to do that at some point in the near future, but when I will be able to manage that is another matter. Of course Ministers always want to evaluate any pilot schemes they put into place, whether by visits or by other means.”

So, it IS likely that Ministers will have visited the pilot sites and YES they will have been monitoring the pilots.

Eight days ago, the House of Lords adjourned in mid-debate on an amendment to the Health and Social Care Bill which would have restored the role of the Secretary of State for Health to “provide or secure the provision” of health services (which the Government’s Bill would have taken away).

Adjourning in mid-debate is a pretty rare (if not unique) procedure, but it has allowed for all sorts of last minute discussions to take place behind the scenes before the debate resumed this afternoon.

The original amendment was moved by Baroness Williams of Crosby (Shirley Williams as was) and was signed by Lord Patel (former President of the Royal College of Obstetricians), Baroness Glenys Thornton (Labour spokesperson on health in the Lords) and Baroness Margaret Jay (former Leader of the House).  Also debated at the same time was an amendment from Lord Mackay of Clashfern which talked more vaguely about the Secretary of State having “ultimate responsibility to Parliament for the provision of the health service”. 

In last week’s debate, I commented:

“I rise to speak to the amendment in the name of the noble Baroness, Lady Williams of Crosby, because this is an issue that requires greater clarity, and the debate and discussion that has already taken place in Committee this evening demonstrates why that is so. As my noble friend Lord Warner has reminded us, Professor Malcolm Grant, the newly appointed chair of the national NHS Commissioning Board, has made clear what appears to be the Government’s intention with regard to the role of the Secretary of State. I assume that he did so under advice, because you do not take on a role like the chair of the NHS Commissioning Board without extensive discussions with Ministers and civil servants. He must have been briefed on the matter and quite clearly the intention is to separate out the day-to-day responsibility and answerability of the Secretary of State. There has to be some clarity on this point. …

 I have some reservations about the wording used by the noble and learned Lord, Lord Mackay, in that he talks about ultimate responsibility. We may have an inkling about what ultimate responsibility means, but I wonder where else in legislation a phrase such as this is used. I defer of course to the noble and learned Lord’s far superior knowledge of the law. However, in my limited experience in this House, I have never before come across the words “holds ultimate responsibility to Parliament”. It seems a very strange usage and I think that there needs to be greater clarity and understanding about what it means. That is why it might be better to revert to the wording chosen by the noble Baroness, Lady Williams. It is tried and tested and at least we understand it.  …

The final test that your Lordships need to consider is: what do the public expect? The public’s expectation is that government is responsible for what happens in our health service; and unless there are locally elected officials who are responsible for what happens at a local level, they will expect their elected Government to be responsible, and that means the Secretary of State.”

The Government had indicated that they were prepared to accept the Mackay amendment – indeed eight days ago they announced that the amendment had been agreed, even though the debate had not been finished.  And Baroness Williams had also hinted in her speech that she might accept the “compromise” offered by Lord Mackay.

Labour Peers, however, were standing firm and had indicated that they would divide the House on the Williams amendment even if she tried to withdraw it in favour of the Mackay version.

The Government was clearly running scared and at the last minute – just as the debate resumed this afternoon – indicated that if both amendments were withdrawn they would consult all sections of the House to try and find a form of words that would be acceptable to everybody.

There followed forty-five minutes of debate when all sides of the House indulged in an orgy of mutual admiration on reaching a sensible way forward.

This orgy, however, began to go rather flat (if that is not an inappropriate metaphor) when the Minister, Earl Howe,  having promised further discussions then began to explain in some detail why the Government disapproved of the Williams amendment, saying:

“In future, all NHS services will be provided by NHS trusts or foundation trusts, both of which have their own self-standing powers to provide services and do not rely on the Secretary of State’s duty to provide under Section 1(2), or by independent providers. The Secretary of State will have no powers to provide NHS services. That is the reality.  …

There is another reason why it would be wrong to reinstate the duty on the Secretary of State to provide. Under the legal framework of the Bill, the Secretary of State no longer possesses powers to direct others to provide services. Therefore, unless we were to re-impose a system of regulations or directions by which the Secretary of State could delegate his duty to provide and control its exercise, which would risk replicating the micromanagement of the status quo, it is hard to see how this legal obligation to provide services could be fulfilled. For obvious reasons, it would be undesirable to create a situation in which the Secretary of State provided services himself. Also, in practice he would lack the capacity to do so, for example in terms of staff and facilities.”

At which point, the House began to become rather restive – the Minister seemed to be saying that there could only be more discussions provided the eventual wording still restricted the role of the Secretary fo State and the right of Parliament to scrutinise what was happening in the NHS.

So, Baroness Patricia Scotland interrupted:

“My Lords, I hesitate to intervene on the noble Earl, who knows I hold him in the highest possible esteem, but I think he is now treading on some contentious legal issues. Bearing in mind the wonderful consensus that we have now reached, I would just ask him to consider whether, at this stage, some of those issues are really helpful because the noble Earl will know that the Secretary of State does, by his servants, agents or otherwise, provide services and, indeed, there have been times when there has been a pandemic when the Secretary of State has had to make such provision. These are contentious issues which I am sure could intrigue us for many hours, but since we have happily come to the conclusion that we have had a surfeit of such happiness and wish to go forward, I gently say to the noble Earl that this might be a moment when we could swiftly do that.”

Then Baroness Glenys Thornton had a go:

“I respectfully say to the Minister that we could start the whole debate all over again if he continues telling us what the Government do or do not believe on this because that is presupposing, and possibly pre-empting, the discussions that we are about to have. The noble Lord may find it useful, but we have had a lot of this discussion. We have now, I thought, agreed to move into discussions outside the Chamber.”

The Minister kept reiterating that he thought it would be helpful to put on the record the Government’s position.

As he seemed to be preempting future discussions, I tried to get some clarity which elicited the following exchange:

“Lord Harris of Haringey: I appreciate that the noble Earl is moving to a position of not addressing those questions, but it is important that he tells the Committee whether the Government have a fixed mind on these matters or whether they are going to approach with an open mind the discussions that we, in an outbreak of consensus, have agreed should happen and try to build on that consensus. If the views are closed, it raises some very difficult issues for the Committee.

Earl Howe: No, my Lords, there are no closed views. That is the reason why I suggested earlier that it was time to reflect and engage in discussions in the spirit of co-operation. I would not have said that if I had had a closed mind to them. There would not have been any point in the discussions. I simply wished to do noble Lords the courtesy of answering their questions and addressing the points that they had made. If noble Lords would rather that I did not do that, then we can make life easier for ourselves. I will certainly write to noble Lords if they would like to inform me afterwards that they wish to receive a letter. If they do not, I will not write. It is entirely up to them. I do not wish to make work for myself unnecessarily.

I have said that I believe the balance of advantage for this Committee lies in our agreeing collectively not to amend the Bill at this stage and I am pleased that there seems to be consensus around that view. I believe instead that it would be profitable for me to engage with noble Lords in all parts of the House, both personally and with the help of my officials, between now and Report to try to reach consensus on these important matters. I would just say to my noble friend Lord Marks that that includes the issues that he has helpfully raised this afternoon. I believe that he is right to associate Clause 4 in particular with the matters that we have been considering. Those discussions can be carried out in an informal way with interested Peers or in individual meetings in the House or my department. There is a place for either type of discussion. My concern is only that it is an inclusive process involving Peers from all sides of the House, and that will include listening to the views of the Constitution Committee should it choose to continue its valuable role.

With that, I hope that no noble Lord will feel cheated by the brevity of my contribution and I shall sit down.”

So we’ve been promised discussions and a Government with an open mind.

We’ll just have to wait and see what transpires.

 

 

The protesters encamped outside St Paul’s Cathedral are issuing a statement of demands later today.

And it is clear from the draft that is being circulated that the stand-off with the police is getting personal.

The draft states that the protesters want to see “the decommissioning of the City of London police with officers being brought under the jurisdiction of the Metropolitan police force.”  A demand with which I personally have some sympathy.

However, it is hardly the sort of proposal likely to endear them to the police who may be charged with evicting them.

And why do they think they would fare so much better if the HULK was in charge?

My regular reader (he knows who he is) will be aware that for most of this year I have been trying to find out whether Home Office Ministers have spent disproportionately more time seeing the senior leadership of the Metropolitan Police than the political leadership (ie the Mayor or the Deputy Mayor for Policing/Chair of the MPA).

I started in March with a Parliamentary Question.  I got a non-answer in May (way beyond the normal time limit).  I tried again and got another non-answer in July.  I complained about this to the Leader of the House of Lords, whilst at the same time trying for the third time to get the answer via a Parliamentary Question.  Within a week, the Leader of the House came back agreeing with me that the Home Office responses were inadequate and he wrote to the Home Office Minister asking that the Home Office supply me with the information requested.

The Home Office then wrote back to me and to the Leader of the House on 29th July, saying in essence that they always replied to questions about Home Office meetings in this unhelpful way.

So on 10th August, I made a request under the Freedom of Information Act to the Permanent Secretary asking her to supply me with a schedule of all meetings held by Home Office Ministers since 1^st May 2010 with (a) the Mayor of London and/or the Chair of the Metropolitan Police Authority, and (b) the Commissioner and/or Deputy Commissioner of the Metropolitan Police, showing the dates of all such meetings, their duration and a list of all those present.

A few weeks later, I received a letter (undated) from an official (status and title not specified, and with no contact details apart from the main Home Office postal address supplied), saying that my request was being considered as to whether it was covered by Section 36(2)(c) of the Act – ie that it might be prejudicial to the effective conduct of public affairs.  This consideration was so difficult that they would “need to extend the 20 day working day response period” (which is of course specified in the Act).  He promised a full response (presumably as to whether Section 36(2)(c) applied or not) by 30th September.

Meanwhile on 6th September, the Home Office responded to my latest Parliamentary Question, which had requested that the list of meetings be placed in the Library of the House, by saying that “Ministers do not routinely place records of their meetings in the House Library”.

I must admit that by now I was beginning to lose the will to live.

However, today – a further twenty working days having passed since the 30th September and still not having heard from the Home Office – I have written again to the Permanent Secretary in the following terms:

“Dear Dame Helen

You will recall that I wrote to you on 10^th August making the following request under the Freedom of Information Act: please supply me with a schedule of all meetings held by Home Office Ministers since 1^st May 2010 with (a) the Mayor of London and/or the Chair of the Metropolitan Police Authority, and (b) the Commissioner and/or Deputy Commissioner of the Metropolitan Police, showing the dates of all such meetings, their duration and a list of all those present.

I received an undated reply from Stephen Donaghy about a month later.  This said that the request was being considered under the exemption in Section 36(2)(c) of the Act, which relates to prejudice of the effective conduct of public affairs and that to consider the public interest test fully you needed to extend the response period.  You undertook a full response by 20^th September.

A further twenty working days have elapsed since the 20^th September and I have still to receive any reply or any explanation of the public interest issues that you feel may apply.

Given the Government’s commitment to openness, I cannot conceive of any reasons why this information should not be supplied.  I certainly cannot understand why it is taking so long to provide the answers.

I look forward to hearing from you shortly.  In the meantime, I am copying this letter to Sir Christopher Graham, the Information Commissioner.”

You might almost think the Home Office had something to hide ….

 

 

The first day of Committee stage consideration of the Government’s Health and Social Care Bill is taking place in the House of Lords today. 

To no-one’s surprise the LibDems again demonstrated that they are happy to place their loyalty to the Coalition with the Tories above the future of the National Health Service. 

They voted en masse to reject a Labour amendment which would have reaffirmed the basic principles of the NHS as the first clause of the Bill.

The amendment was to begin the Bill by stating:

“Principles of the Health Service in England

(1) Any person or body performing functions or exercising powers under this Act in relation to the Health Service in England must have regard to the principles and values outlined in the NHS Constitution.

(2) Any person or body performing functions or exercising powers under this Act in relation to the Health Service in England, or providing services as part of the Health Service in England, must provide quality, equity, integration and accountability, not the market.

(3) The primacy of patient care shall not be compromised by any structural or financial re-organisation of the Health Service in England.

(4) There must be transparency and openness wherever taxpayers’ money is being spent, and all accountable individuals and bodies should abide by the Nolan principles.

(5) “The Nolan principles” means the seven general principles of public life set out in the First Report of the Committee on Standards in Public Life (Cm 2850).

(6) Schedule (Principles of the Health Service in England) has effect.”

The amendment was rejected by 212 votes to 244.

59 Liberal Democrats voted against the amendment with only one (Baroness Tonge) in favour.*

So can someone just remind me – after all the fuss about how the LibDems were going to fight for the NHS – when did they decide that it wasn’t necessary to require providers of health and social care to provide ”quality, equity,  integration and accountability”, when did they decide that it doesn’t matter if the primacy of patient care is compromised by structural or financial re-organisation, and when did they decide that the Nolan principles of public life weren’t necessary for those responsible for the provision of the NHS?

 

*  The full figures were as follows: in favour of the amendment - 172 Labour Peers, 37 Crossbenchers and others, two Bishops and one LibDem; against the amendment – 147 Tory Peers, 38 Crossbenchers and others, and 59 LibDems.

I have just come across this YouTube clip of my report back to the Parliament and Internet Conference last week of the session I chaired on the opportunities presented to the creative industries by the internet.

The answer is a procedural motion on a back-bench Bill on House of Lords (interim) reform.

For what seems like the tenth year running (although I suspect it is probably only the fourth year), Lord Steel of Aikwood (Sir David Steel in old money) has introduced a Bill to introduce some sensible interim reforms to the House of Lords, pending a fuller reform of the Second Chamber.  These are to:

• end by-elections for hereditary peers (at present when one of the remaining ninety-odd hereditary peers dies, there is a by-election amongst existing hereditary peers – or sometimes all members of the House – to choose a replacement from a register of eligible hereditary peers who don’t sit in the House);
• allow any member of the House of Lords to resign from the House permanently;
• create a mechanism where peers who commit serious offences can be expelled from membership of the House; and
• put the existing House of Lords Appointments Commission (which recommends names to be appointed as cross-bench peers) on a statutory footing.

There are those in the House who want to talk the Bill out – most notably a number of hereditary peers who argue that there should be no change at all, pending a move to an elected House.  The procedural motion was designed to outmanoeuvre them.

And the House was crowded (at least for 10.30am on a Friday) to vote on the matter and in the event the House voted by 175 to 16 in support of the procedural motion.

Procedural wranglings are nonetheless expected to go on for at least another six hours.

After sixteen hours of debate on the Second Reading of the Government’s Health and Social Care Bill, the House of Lords voted on two motions.  The Government won both divisions. 

 The first would have killed the Bill outright by declining to give it a Second Reading – a very rare procedural vote in the House of Lords.  The Government won by 354 to 220.

The second vote was on a motion to refer three parts of the Bill to detailed scrutiny by a Special Select Committee of the House was defeated by 330 to 262.  The total vote reflected the largest turnout of Peers since 1993 (on the Maastricht Treaty - itself the largest vote recorded in the House of Lords since 1831) and it exceeded some of the big votes on Parliamentary Voting and Constituencies Bill. 

The vote also saw 198 Labour Peers voting for the Select Committee referral.  This is the largest vote by Labour Peers ever in the history of the House of Lords.

So where were the LibDems in all of this?

By and large they were with the Tories in pushing the Bill through.  Just two of them (Baronesses Nicholson of Winterbourne and Tonge) rebelled, while 80 (yes, eighty) LibDem Peers trooped through the lobby with 193 Conservatives.  The cross-benchers and others split 56 for the referral motion to 57 against.  The Archbishop of York and five other Bishops also voted for the referral motion.

So the lesson?  You cannot trust the LibDems with the NHS>

The Second Reading debate on the Government’s Health and Social Care Bill has been going on for about thirteen hours with more to come tomorrow.  This was my contribution earlier tonight:

“9.26 pm

Lord Harris of Haringey: My Lords, at this two-thirds point in this debate, I make no apology for focusing my remarks on Part 5 of the Bill, and the quality of the voice for patients that it offers. This Bill is likely to damage irreparably the National Health Service, creating a service that is less accountable and more fragmented; that is increasingly provided by for-profit organisations; and where the relationship of trust between doctors and their patients is undermined. Under such circumstances, an effective structure is essential to support patients in navigating their way through the new arrangements, to ensure that their needs and concerns—both individually and collectively—are not neglected in the brave new world of private suppliers feeding on the remnants of public provision. It is essential to guarantee that, with the democratic deficit that will now open up in health provision in this country, the impact of the changes is catalogued and drawn to the attention of those charged with regulating the new system, of Parliament and ultimately of the public who are paying for it.

I declare a former interest as someone who—for 12 years—was director of the Association of Community Health Councils, then the statutory body representing the interests of the public and the users of the NHS. The Government are now bringing forward another round of proposals to fill the void left by Community Health Councils when they were abolished in 2003. They were succeeded by patient and public involvement forums, which lasted four years before they were replaced by local involvement networks. Again, with a life of four years, LINks are to go, to be replaced by HealthWatch. The sequence of change in consumer organisations is a poor recommendation of the previous Government. I am shocked to see that the current Government are moving forward in a similar vein.

Of course, the Government’s objectives are laudable: “No decision about me without me” is as resonant as previous rhetoric about putting the patient at the heart of the NHS or the mantras about patient empowerment 10 to 15 years ago. Some of your Lordships will even remember John Major’s Patient’s Charter—that daughter of the Citizen’s Charter and that cousin of the Cones Hotline. How does the high-sounding rhetoric match up to the reality of this Bill? How far are patients going to be involved in decisions about managing their own care and treatment? It is simply not clear whether these are adequately safeguarded in the Bill. A duty to promote involvement or a duty to promote choice is not a sufficient guarantee. Who will hold clinical commissioning groups or the NHS Commissioning Board to account for the extent to which they have promoted that involvement or choice? Where will patients go for redress if they find that their family doctor will not refer them for treatment or investigation but insists on managing that treatment or conducting that investigation within the practice, thereby keeping the resource that would otherwise go with that patient? What will be the process for ensuring that key commissioning decisions are in line with the preferences of those affected by them and that those decisions reflect the expertise that patients have in their own conditions and the experience that patients collectively have of their local services?

Presumably we will be told that this is where HealthWatch will come in, but what will HealthWatch mean in practice? The first problem is that it is unclear how local healthwatch groups will be constituted. If individuals are simply going to be self-selected, their views, though valuable, will not necessarily be representative of all service users, and there is a risk that because of that they will not be treated by commissioning groups as having legitimacy. Members of local healthwatch groups need to have their own local accountability and must have the resources to engage with the wider community to be able to assess and represent their views.

Resources will also be necessary to enable local healthwatch groups to provide advice, support and advocacy. This will be an important and potentially substantial role in the brave new world of the NHS that this Bill creates: a world where patients will no longer be clear whether their GPs are acting in their interests or to bolster their practice’s coffers; a world where decisions about what is to be commissioned will be taken with no clear system of public accountability; and a world where for-profit providers will increasingly squeeze out those that are not-for-profit and where profitable treatments will be cherry-picked.

A strong system of patient advocacy and support will be needed, but will it be provided? This will depend on the decisions of hundreds of local councils. The money provided by the Department of Health will not be ring-fenced, and there will be no mandating of local authorities about the nature and quality of HealthWatch services that should be supported. All this is in the name of localism, that same localism that has seen the budgets of LINks drop dramatically this year, in some instances by more than 50 per cent, despite, as the Minister told a number of us last night, the Department of Health saying that it has increased the resources available. The resources went up, but the resources available for local healthwatch went down. It is a localism that means that the Minister can offer us no assurances that those advocacy services that he promises us will be adequate. In future spending rounds who will argue with the Treasury for the moneys for HealthWatch? Will it be the Department of Health, which will have no say in whether the services expected are being delivered, or DCLG, which will have no interest in those services, or will the current commitment be allowed to wither on the vine as no department fights its corner?

Is it even appropriate that local healthwatch groups should be resourced via local authorities which themselves will have responsibilities for social care provision? Is there not a potential or perceived conflict of interest here? How comfortable will a local healthwatch group be in criticising its paymasters about the quality of that provision?

Finally, there is the relationship with national HealthWatch. A national structure is essential for the views and concerns of local healthwatch groups to be captured and articulated at national level, but that national structure must grow from and be a creature of the local groups, not sit above them as a mere sub-committee of a regulator, moreover a regulator to which requests for action and even criticism may need to be directed by that structure.

The new NHS will need a strong and independent user voice. The Government keep citing the proposals on HealthWatch as evidence not only that such a voice will exist but that the patient will indeed be central to the myriad new structures that they are proposing.

Yet the danger is that what we are being offered is no more than a fig-leaf whose own legitimacy will be flimsy, a fig-leaf whose resources will be plundered as local government itself faces a future with rapidly dwindling money, a fig-leaf whose independence is compromised by its relationship with a paymaster whose provision it is supposed to be monitoring, and, above all, a fig-leaf protecting the nakedness and insufficiency of the protestations that no decisions about the patient will be taken without him or her. My Lords, it is just not good enough.”

I have put my name down to speak on the Second Reading in the House of Lords on the Health and Social Care Bill next week. So have 98 colleagues.  So far.

This must be some sort of record for any Bill (other than those dealing with House of Lords reform).

The level of interest demonstrates that there is widespread concern across the House about what the Government’s Bill will do to the NHS.  Apart from the Government’s apologists on the Tory benches (and those LibDem coalition loyalists), there is a consensus that what is proposed is unnecessary, reckless, wasteful and bureaucratic.

The Government’s proposals were not in the Conservative Party’s election manifesto.  Nor were they in the LibDem manifesto.  They were not even in the Coalition Agreement.

There is absolutely no mandate for the changes proposed and they go against the promises made that there would be “no more top-down reorganisation of the NHS”.

The interest in the Second Reading debate has meant that the session is to start three and a half hours early on Tuesday and there is now going to be an overspill session on Wednesday morning.

There are not normally votes after Second Reading debates in the House of Lords.  However, the Health Bill is so controversial that there could be a vote to kill the Bill at that stage.

Despite speculation, it is unlikely that an outright move to block the Bill will pass: the Conservative peers and most LibDem peers will vote as a block to prevent that happening and cross-bench peers may feel that it would be unconstitutional for the House of Lords to refuse to consider a Bill coming from the elected House.

However, the role of the House of Lords is to scrutinise legislation and there is a proposal from Lord Owen and Lord Hennessy to refer three sections of the Bill for detailed consideration by a Select Committee of the House that could call for evidence and hear witnesses.  The rationale for this is that these are sections of the Bill that were not properly considered and that the sections concerned also raise fundamental constitutional principles in that they could potential weaken Ministerial accountability to Parliament on the NHS and would also make it more difficult for decisions to be challenged in the Courts.  If passed, this might have the side effect of delaying the Bill into the next session of Parliament.

The vote on this proposition is likely to be much closer, but if it is to be passed at least eighty members of the House form the cross-benches (and Government rebels) will have to join Labour peers in supporting it.

There are signs of nervousness in the Department of Health and all peers have been invited to a meeting with Ministers and the Chief Executive of the NHS to “allow Peers to ask any final questions” at 7pm on Monday (such a late start for an all-peers Ministerial briefing is also pretty unprecedented in my opinion).

As Sir Alex Ferguson might say it’s squeaky bum time for Ministers and the coalition.