One of the pieces of legislation that we’ve been keeping an eye on as it moves through the parliamentary process is the Health and Care Bill. We’ve written multiple times about what it might mean for consultors, some of the guidance that has been produced for it and we even produced a Briefing Paper about the issues emerging from it. One of the issues that we highlighted in that Briefing Paper was around the new powers to be given to the Secretary of State to intervene in service changes.

In that paper we highlighted that these new powers were one of the only bits of the Bill that had not been consulted on, and there was no real explanation for their necessity. There was also some doubt as to how they would functionally work with respect to the continuing role of the Independent Reconfiguration Panel and local Health Overview and Scrutiny Committees. Our final concern was that they would move decision-making up the ladder and further away from people who knew their communities and convincingly consult well with their communities.

The Health and Care Bill completed its Committee Stage in the House of Lords this week and one of the proposed amendments raised by Baroness Cumberlege was to require the SoS to consult with relevant HOSCs before they exercised this power. Speaking for the amendment, Lord Shipley said:

“I hope the Minister will take very seriously what is being said because the Bill’s ambition is to increase transparency and accountability. That is right, but it surely should be prioritised at a local level since that is where services are delivered. The Bill undermines that principle. It thinks accountability should lie in Whitehall, yet there has been no strong call to enable the Secretary of State to intervene earlier in the reconfiguration process and, anyway, there is already an established role for the Secretary of State in cases that are referred. Those processes should not be undermined.”– HL Deb 26th January 2022, Vol 818, col 379

His comments chime nicely with our own concerns about shifting power and accountability away from those best placed to properly exercise it. He was far from the only peer to raise concerns, with Lord Patel commenting:

“The powers in the Bill would allow the Secretary of State to initiate service changes without any consultation. How can any Secretary of State feel sufficiently qualified to be making unilateral judgments about what constitutes “safe”? The existing, largely successful, processes, which have already been mentioned, take account of clinical advice and the views of local communities in the final decision have been effective. The noble Baroness gave the example of Kent and Medway stroke services, which were held up by the Secretary of State, not by the consultation. I strongly support these amendments and I hope that the Minister will think about removing the provisions from the Bill.”– HL Deb 26^th January 2022, Vol 818, col 380

In light of the comments, the Minister acknowledged the concerns and that there was a clear need to go back and “consult further”.  In political terms no doubt a beautifully vague term, and not one which we would expect to result in a proper consultation on the proposals, though there may be some degree of lower-key stakeholder engagement. In light of the fact that stakeholders seem to have presented a relatively unified front against this particular part of the Bill they may find it interesting. We’re going to see if we can find any way of contributing to what is an important debate.