The Secretary of State for Health's new role and accountability structure under the Government's proposed Health Bill will not change in Peer discussion proceedings and will "always remain contentious".
The Secretary of State's current role ensures a responsibility to promote the health service and includes a duty provide or arrange the provision of services under the NHS.
Proposed Tory health reforms will see the Secretary of State supplying a mandate to the National Commissioning Board (NCB) for the provision of NHS services and as such absolving his/herself of any responsibility for the day-to-day running of the health service.
However, if the NCB breaks this mandate, the Secretary of State will be obliged to step in as the Department of Health claims he/she will be "ultimately accountable for the NHS".
Christian Dingwall, a Partner specialising in the Health Sector at Hempsons law firm, told NiP the bill does not allow the Secretary of State to walk away from NHS spending nor does it appear to be a route to depoliticising the health service.
"The day the Secretary of State walks away from the spending of £110bn from the public purse, is the day he will be castigated for squandering money," he said.
"I have not seen a desire to depoliticise the NHS from this government, there is simply too much money at stake to ever do that. The health of the people is too important for the Secretary of State to walk away from."
Cross-bench peer Baroness Masham of Ilton remains unconvinced.
"The Government is trying to put a distance between the Secretary of State and the health service and it doesn't seem as though it has thought it through," she told NiP.
"Tory ministers are being deliberately evasive on the matter but I am confident the peers will pin it down.
"If we don't, I fear it could be quite serious for the coalition."
Dingwall said the concern around the changes to the Secretary of State's role and accountability stems from people being "uneasy" with the NCB - ie unelected persons - being responsible for public spending on that scale.
"There is a feeling that the Secretary of State should have a higher degree of control over that huge pot of money," he said.
The clause relating to the Secretary of State's accountability has now been taken out of Committee Stage at the House of Lords and will be discussed "in a collaborative manner" with a view to be brought back to the House during the bill's Report Stage in January next year.
Tory Health Minister Lord Howe has pledged to work with Peers to put the matter "beyond all doubt".
"We have never sought to dilute the Secretary of State's responsibility for promoting a comprehensive health service, available to all, based on need and not ability to pay. We have made clear that we are willing to accept amendments to put this beyond all reasonable doubt," said Lord Howe in a statement to NiP.
"However, following discussion in Committee, we have proposed engaging with Peers between now and Report stage to try and reach a consensus on these important matters, before laying any amendment."
Dingwall, however, does not believe the "collaborative discussions" will lead to any changes in the wording of the clause.
"The Government isn't ever going to satisfy Baroness Williams and Labour Peers," he said.
"The accountability and responsibility of the Secretary of State will remain contentious and all the Department of Health can do, is to keep explaining itself.
"There won't be much change to the clause, if any at all."
While Dingwall told NiP the wording of the Secretary of State's accountability is "quite plain", he acknowledges there is room for different interpretations by different lawyers "as that is what they are paid to do".
"This is a huge bill, it is incredibly complex and is extremely difficult to communicate – especially when it comes down to the minutia of individual clauses," said Bob Ricketts, Director of System Management and New Enterprise at the Department of Health.
"The concerns around the Secretary of State's level of accountability under the bill are genuine and legit and we need to address that."
While he told NiP that the myths of the bill can be "dispelled in minutes", he said it wasn't easy to "give a straight answer" as to what the Secretary the State for Health will be accountable for under the proposed health reforms.
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