Health and Social Care Act 2012

The Health and Social Care Act 2012 finally received royal assent after an unprecedented 'pause' during scrutiny by the House of Commons and a difficult passage through the House of Lords.

Second reading

The Bill received its second reading in the House of Lords on 11–12 October 2011, during which the Parliamentary Under-Secretary of State for Health Earl Howe said: 'My Lords, this is a bill of profound importance for the quality and delivery of health and care in England, for patients and for all those who care for them. As such it has been, quite rightly, the subject of intense scrutiny, not only in another place, but also more widely. Indeed, the intensity of the spotlight directed at its content over the last few months is borne out by the number of your Lordships who wish to speak today and tomorrow...'

'The original National Health Service Act 1946 provided for a comprehensive health service, but it did so by employing a simple legal precept - that responsibility for everything that happened in the NHS should lie with the secretary of state. That may have held good in the 1940s, when the challenges facing the NHS were largely the management of acute short-term conditions, but it does not hold good now. The secretary of state has for decades delegated his functions for the commissioning and provision of healthcare services to other bodies. The reason for that is simple: managing the range of healthcare needs for our diverse population is now so complex that no one would argue that it is a task best carried out from Whitehall.'

Motions which aimed to prohibit the bill from being debated further in the House of Lords and to create a new select committee to examine the bill were tabled by Lord Rea (Labour) and Lord Owen (crossbench) respectively. Both motions were defeated.

Public health

Public health debates featured much more heavily in the House of Lords, compared with the House of Commons.

While it was acknowledged that the plans to move public health functions to local government were broadly supported, there were issues relating to implementation, including concerns about the role and status of the director of public health and the possible politicisation of the function.

There were also questions about the lack of prescription in the bill regarding the health improvement functions local authorities were to carry out.

Strong concerns were expressed about the proposed status of Public Health England as an executive agency of the Department of Health, with calls to make it an independent body.

Other concerns

Other key themes across the debate included continuing concerns about the role of the secretary of state and accountability for the NHS, the role of competition, fragmentation of the NHS and complexity of the new system, the cost of the reforms, the removal of the foundation trust private income cap and the the role of education and training.

Committee stage

The committee stage for the bill lasted 15 sittings, finishing on 21 December 2011. While there was extensive debate during this stage of the process, there were fewer significant government amendments tabled at this stage.

During the debate, Lord Hunt of Kings Heath, Labour's shadow deputy leader of the House of Lords, expressed opposition to the bill, stating: 'My Lords, these amendments are grouped around the structure of the National Health Service and certainly serve to illustrate the turbulence that the government have brought to the service. Essentially, the government have torn up the current structure by its roots and are now piecing together a much more complex and potentially bureaucratic edifice. It still remains a complete mystery why the government did not build on what was there. On day one, they could have ordered primary care trusts to divest themselves of any service provision responsibility, and could certainly have given them a kick up the backside to get a move on with GP commissioning... Instead of that incremental, organic approach, we have seen primary care trusts dismembered, with many experts on commissioning - good people - thrown out of the system at a time when the NHS should be solely focused on the financial and quality challenge it undoubtedly faces.'

Report stage

The bill completed the report stage on 13 March 2012, after seven sittings, commencing on 8 February 2012.

The government accepted two significant amendments to the bill, proposed by Lord Clement-Jones: 

• The first required Monitor to provide advice to the Office of Fair Trading (OFT) on the benefits of mergers involving a foundation trust. The intention behind this amendment was to attempt to distinguish the NHS from commercial organisations, such as retailers. In accepting the amendment, Earl Howe reassured the House that the paramount consideration for the OFT in reviewing foundation trust mergers would be the impact on patients' interests, including the interests of patients in securing sustainable access to a comprehensive health service.
• The second amendment removed the requirement for the Competition Commission to review the development of competition in the provision of health care services for the purposes of the NHS. It was felt that prescribed reviews would have placed too great an emphasis on competition in the NHS. 

The government tabled 137 amendments, including to specify that the secretary of state would retain ministerial responsibility to parliament for the provision of the health service in England and clarify that the interests of the health service would take precedence over promoting autonomy.

On public health, the government tabled amendments that aimed to strengthen the status of the director of public health (DPH) by giving the DPH chief officer status. This gave the director of public health an equivalent status to directors of children's services and directors of adult social services.

The government also made new provision for the secretary of state to issue guidance to local authorities on the appointment, termination of appointment, terms and conditions and management of public health specialists.

One non-government amendment was introduced, which was intended to promote parity of esteem between mental and physical health services.

Third reading

The bill received its third reading on 19 March 2012. The government tabled an amendment to strengthen the duties on the NHS Commissioning Board and clinical commissioning groups (CCGs) to make an assessment in their annual reports on the impact of their effort to reduce inequalities (both in terms of access and outcomes).

The House of Commons agreed the amendments made in the House of Lords on 20 March 2012 and the Health and Social Care Act 2012 received royal assent on 27 March 2012.