HL Deb 20 October 2003 vol 653 cc1294-321

4.34 p.m.

House again in Committee on Clause 49.

Baroness Noakes moved Amendment No. 283:

Page 17, line 38, leave out subsection (2).

The noble Baroness said: I shall speak also to the other amendments in the group tabled in my name and that of my noble friend Lord Howe. The amendments concern the setting of criteria for use in reviews or investigations by CHAI and CSCI.

Amendment No. 283 deals with Clause 49 and deletes subsection (2) on a probing basis. The amendment has two distinct purposes. The first is to challenge yet again the involvement of the Secretary of State for Health, this time in the approval of criteria devised by CHAI. Under Clause 45, the Secretary of State will be setting standards against which CHAI will have to evaluate NHS bodies and award a performance rating. My noble friend Lord Howe has already explained to the Committee our profound misgivings about that. But why does the Secretary of State also have to approve the criteria that CHAI will use? Can CHAI not be trusted to do anything without the Secretary of State? That is the substantive challenge of the amendment.

My second purpose is to probe the meaning of criteria and the arrangements for devising and publishing criteria. Will the Minister explain what criteria actually are? Are they any different from targets? In what way will the new arrangements make a difference to an NHS which has been overburdened by targets, as my noble friend has said? I am sceptical about words such as criteria. They are elastic and can have many meanings. My dictionary says that criterion means a,

"principle or standard by which something can be judged".

However, it is clear that criteria are not standards, because they are dealt with elsewhere in the Bill. So what are they? I hope that the Minister can explain.

Amendments Nos. 313, 314 and 315 are directed at Clause 59. Amendment No. 314 puts a small word— "not"—into Clause 59(4) so that the regulations may not require CHAI to get the approval of the Secretary of State or the Assembly for criteria that it will set under Clause 59. There is no good reason for the Secretary of State to consent to criteria under Clause 59, just as there was no good reason for him to approve them under Clause 49, as I have just said. Indeed, I challenge the Minister to give one good reason why the Secretary of State should have those powers.

Amendment No. 313 is a simple requirement for CHAI to consult on the content of any statement of criteria. It does not specify the consultees—it leaves that to CHAI—but it requires consultation. We think it important that the NHS move from the command-and-control era of the Government to one where consultation is the order of the day. Amendment No. 313 is therefore a symbol of that important change.

Amendment No. 315 requires the affirmative procedure to be used for any regulations under Clause 59. That clause gives significant power to the Secretary of State to tell CHAI what to do. If we allow that impaired independence to remain in the Bill, it is right and proper for Parliament to approve the regulations that are made.

I have directed my comments at CHAI. Amendments Nos. 342, 355 and 356 attack the same issues for CSCI, which is similarly subject to excessive Secretary of State involvement. I beg to move.

Baroness Barker

I shall briefly speak to the amendments in the group to which our names are attached. In doing so I wish to echo, but not to repeat at great length, the arguments put forward so ably by the noble Baroness.

We have argued throughout our consideration of the Bill that the functions of CHAI and CSCI are the output of a health and social care system that can achieve what it is supposed to do, in preventive, rehabilitative and acute terms, only if it is widely understood and supported by health and social care agencies in their broadest sense, and not only in the narrow sense. Therefore we also think that others than the Secretary of State should be taking part in the direction of that. I do not see why he or she should have the ultimate approval of these bodies, which will be so important in the provision of strategic information and data. I support the noble Baroness, Lady Noakes, in her amendments.

Lord Warner

I shall try to help the noble Baroness, Lady Barker, by saying at the outset that we regard criteria as means of measuring standards. My comments will be in that context.

The two commissions themselves will be fully responsible for drawing up the inspection methodologies and criteria, as is right and proper for such independent organisations. However, we want to ensure that the criteria against which the NHS and local authorities are being assessed are consistent with the national standards set by the Secretary of State so that they are fair to the bodies that are being inspected and so that there is no confusion.

We have had several discussions about standards, and I have tried to explain on several occasions why we believe that it is for the Secretary of State to set national standards under Clause 49.I shall not repeat those arguments. Effectively, Amendment No. 283 would prevent the outcome that I have suggested we are trying to achieve; that is, to ensure that having done much work on the criteria, the Secretary of State can satisfy himself that the criteria are consistent with measuring the standards that rightly he will have produced. It is probably worth repeating that which has been said on several occasions. On both the issue of the Secretary of State producing national standards and producing draft criteria by CHAI and CSCI, there will be a consultation process in which draft criteria— draft standards—are put in the public arena for a process of widespread consultation with a whole variety of particular interests.

There will be no question of that being done in a hole in the corner manner. The proper order for that to be done is for the Secretary of State to make the standards clear, and it will be difficult for CHAI to produce criteria without knowing the national standards. CHAI will produce criteria for measuring them in that context of draft national standards. That is its primary responsibility. All that the Secretary of State will do is ensure that we do not have confusion by having criteria agreed with the best of intentions, but which are nevertheless not compatible with the measurement of the particular national standards that are agreed and settled by the Secretary of State.

If Amendment No. 311 were carried, it would not be possible to require CHAI to publish statements of the criteria it will use. That could lead to a lack of transparency in the way in which CHAI exercises its functions.

Amendment No. 314 seeks to remove the Secretary of State's power to make regulations requiring CHAI to obtain the consent of the Secretary of State to the criteria it has devised. For the reasons that I have described, we cannot expect the NHS effectively to serve two masters—a set of standards determined by the Secretary of State and a set of criteria which are not compatible with them, and which are agreed by CHAI. We do not expect there to be difficulties in agreeing those criteria, but it is important that we do not cause confusion. Given the importance that patients, the public and the NHS will attach to CHAI's verdicts, satisfying ourselves that CHAI's criteria will be consistent with national standards is important for managers, clinicians and the public.

I agree with the sentiment behind Amendment No. 313. I have said that I have no doubt that CHAI will want to use its expertise to make sure that the criteria it uses in its review and inspection of NHS bodies will be fair and reflective of the needs of patients, and the realities of the world within which healthcare providers operate. We are tabling our own Amendments Nos. 314A and 354A in relation to this clause and the equivalent CSCI clause, enabling regulations to provide for CHAI and CSCI to be obliged to consult specified persons. We think that by requiring CHAI to consult prescribed persons in relation to regulations issued by the Secretary of State or the Assembly, Amendments Nos. 314A and 354A are more complete and I hope that noble Lords will support them.

Amendment No. 315 would place a duty on the Secretary of State to consult such persons as he considers appropriate as well as CHAI before making regulations requiring CHAI to devise and publish statements of criteria to be used in the exercise of specified functions. I am sure that my right honourable friend the Secretary of State will be considering whether and to what extent it would be appropriate for him to consult persons other than CHAI before making any regulations under this clause. In my view, it is unnecessary to amend this clause in order to require him to consult, and that would be out of line with the wording of most of the other powers to make secondary legislation in Part 2.I hope that noble Lords will not press Amendments Nos. 312 and 313 in place of those that I have tabled.

Amendments Nos. 315 and 356 seek to ensure that no regulations may be made under Clauses 59 and 83 unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House. Clause 191(4) stipulates that: Any power to make … regulations under this Act is exercisable by statutory instrument". Subsection (5) states that the regulations are, subject to annulment in pursuance of a resolution of either House of Parliament". That has been normal practice in relation to the regulation-making powers in other legislation covering the regulation of health and social care services. So we have continued as in the past. We are not sure that a further amendment along the lines proposed is necessary.

4.45 p.m.

Baroness Carnegy of Lour

Regarding the question of whether the regulation should be by annulment or by affirmative resolution, the Minister said that previously the regulations involved negative resolution. Will there be much greater powers in the proposed regulations than existed before? The Delegated Powers and Regulatory Reform Committee looked rather cursorily at that point, and took the point that the Minister made. However, if the new powers are much greater, there may be an argument for my noble friend's suggestion. What is the difference between the powers of the previous body— I cannot remember its name; was it called the CHI?— and those of CHAI?

Lord Warner

The point that the Delegated Powers and Regulatory Reform Committee was making was in other areas, where there has been a widening of scope, we should move from negative to positive. Regarding this matter, my understand of what the committee was saying was that the arguments that I have outlined were largely valid; that there was not such a significant difference in the scope of the powers that it would justify moving from negative to affirmative resolution. That was the only point that I was trying to make.

Baroness Carnegy of Lour

From memory, I do not think that the committee—of which I am a member— looked at the difference between the powers. Would the Minister indicate whether the difference is significant? That was my point.

Lord Warner

My judgment is that they are not so significantly different that we would want to move from negative to positive. In other parts of the Bill that we shall discuss, we will acknowledge the force of the arguments put forward by the Delegated Powers and Regulatory Reform Committee and make adjustments. This matter did not seem to us to be one where the range of powers that the commissions have are so significantly different that we should move from negative to positive in this regard.

Baroness Noakes

I thank the Minister for his reply and the noble Baroness, Lady Barker, for her support. My noble friend Lady Carnegy raised an important question on the extent to which the powers were different. Will the Minister reflect on his answer? I do not believe that this part of the Bill repeats powers that already exist. Perhaps we are in virgin territory. I hope that he will take the issue away and look at it again.

I thank the Minister for defining the criteria. At least we have an explanation of them on the record. I shall carefully consider it—it is helpful to have it laid out. However, there is a difference of opinion. The Minister says that the Secretary of State must set the standards and then ensure that CHAI sets the criteria in line with how the Secretary of State believes the standards should be interpreted. Really, the Secretary of State wants to set the whole lot. That is what lies behind the whole of the Bill. The Secretary of State does not trust even the bodies he is claiming are independent and have an important part in the future of the NHS, such as CHAI and CSCI. A complete lack of trust lies behind the way in which the Bill has been drafted.

We take a contrary view. We believe that these bodies should be independent and capable of being trusted to, for instance, turn standards into a means of measuring. We do not believe that the Secretary of State needs to be involved down to the final level. The proposal is indicative of the way in which the Secretary of State will not let these bodies go. There is a fundamental difference between the Government's view and the view of the Conservative Benches and that of the Liberal Democrat Benches as well.

We spoke about consultation. The Minister introduced his own Amendment No. 314A, which requires consultation with specified persons. Our Amendment No. 313 trusted CHAI and proposed that CHAI should consult on the basis of the individuals and groups it believed to be appropriate. Again, the Secretary of State is taking additional powers to tell CHAI exactly what to do. One might ultimately query how much freedom CHAI will have by the time the little regulations here and the little regulations there add up to tying CHAI and CSCI in knots.

We are not content with this part of the Bill. We will read carefully what the Minister has said, but on Report we will return to the involvement of the Secretary of State and the way in which it is manifested in different parts of the Bill. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 284 not moved.]

Clause 49 agreed to.

Clause 50 [Reviews: England and Wales]:

Earl Howe moved Amendment No. 285:

Page 18, line 13, leave out "and" and insert "or"

The noble Earl said: In moving Amendment No. 285, I shall speak also to Amendments Nos. 286 and 287. This is a probing amendment. It probably looks fairly innocuous, but its purpose is to test whether the wording in subsection (l)(a) would cover the provision of healthcare by independently run diagnostic and treatment centres.

At present, the subsection reads:

"The CHAI has the function of conducting reviews of— (a) the overall provision of health care by and for NHS bodies".

My amendment proposes that it should read,

"by or for NHS bodies".

We know that the new fast-track diagnostic and treatment centres will be run for the NHS, but many of them will not be run by the NHS. In fact, they will be run by a range of companies from Britain, Canada, South Africa and the United States.

Already some 20 such treatment centres within the NHS are either operational or are soon to come on stream. There is no problem about the centres coming under the scrutiny of CHAI as they are providing care both by and for NHS bodies. Clearly, the privately run clinics will be in a different category. I hope that the Minister can tell me that the amendment is unnecessary, but it is not at present clear to me that it is. I beg to move.

Lord Warner

I can give the noble Earl the assurance that all types of diagnostic and treatment centres are covered. I shall spare him the note I have on the logic of "by" and "for", but I am happy to write to him if he wants Parliamentary Counsel's advice on the matter.

Earl Howe

I am happy to accept the Minister's assurance on the matter and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 286 to 287 A not moved.]

Clause 50 agreed to.

Earl Howe moved Amendment No. 288:

After Clause 50, insert the following new clause—

"REVIEWS FOR THE REGULATOR

  1. (1) If the regulator so requests, the CHAI must conduct a review of, or investigation into, the provision of any healthcare by or for an NHS foundation trust.
  2. (2) Where the CHAI conducts a review under this section it must submit its report to the regulator who shall decide whether and how the report is published."

The noble Earl said: In moving Amendment No. 288, I shall speak also to Amendments Nos. 291A and 294. These are simple amendments, but collectively they address an important point. As a general principle, I believe that CHAI ought to be free to decide what work is important for it to carry out within its own priorities. For that reason, I am inherently hostile to the provision in Clause 51 (4), which gives the Secretary of State power to insist that CHAI conducts a particular review of his choosing. The Secretary of State already has control over CHAI's purse strings.

He should not also be given the right to decide how CHAI should spend the limited money it has at its disposal.

If the Government insist that the Secretary of State should be allowed to do this, there is one area he should definitely keep his hands off; that is, foundation trusts. Requiring CHAI to carry out investigation into a foundation trust is for the regulator and not for the Secretary of State. The regulator is meant to be independent and there should not be a power for the Secretary of State to go in over the regulator's head.

By the same token, I suggest in my Amendment No. 288 that there ought to be an explicit power for the regulator to request CHAI to conduct a review or an investigation into a foundation trust and for CHAI to be obliged to do that when asked. The duty of the regulator and CHAI to co-operate does not seem to me sufficient to cater for situations where it may not suit CHAI to devote its resources at a particular time to carrying out an investigation not of its choosing, yet the regulator may perceive that the foundation trust is falling seriously short of performing its functions and want the matter looked at without delay.

At the back of my mind is the fear that with CHAI and the regulator working in parallel, we shall, if we are not careful, see an inefficient build-up of regulatory capacity. It is much better to have clarity on who does what. It should be CHAI's role to investigate and carry out reviews and the regulator's role to act on such reviews. There is a danger that the structures in the Bill will generate too much oversight and we should guard against that. I beg to move.

5 p.m.

Lord Warner

I appreciate the intention of Amendment No. 288, but I want to reassure the noble Earl that CHAI already has the function under Clauses 50 and 51. Using such powers, the commission is already empowered to conduct reviews and investigations of the provision of healthcare by and for all NHS bodies. In particular, under Clause 51(4), CHAI must conduct a review of the provision of any healthcare by or for an NHS foundation trust if the Secretary of State so requests. I know that the noble Earl takes objection to this, but subsection (2) of the new clause would place a duty on the regulator rather than on CHAI to decide whether and how any report made by CHAI in relation to foundation trusts was published.

Perhaps I may remind the noble Earl and the Committee that we are establishing CHAI as the health watchdog that the public can trust as the authoritative independent commentator on the quality of NHS healthcare. I find it strange that, having argued passionately to increase CHAI's independence, the amendment seeks to reduce it. We see no reason why the commission should be expected to submit its reports to anyone for either prior clearance or a decision on publication.

Amendments Nos. 291A and 292 would, if carried, remove the Secretary of State's specific power to require CHAI to undertake reviews and investigations in relation to the provision of healthcare by and for NHS bodies or to review arrangements by those bodies for the purpose of discharging their duty of quality under Clause 44.

Amendment No. 292 would replace the Secretary of State's power to require with a provision expressly empowering CHAI to carry out reviews in response to requests. Amendment No. 291A would simply remove the Secretary of State's power to require without putting anything in its place. We believe it is important that the Secretary of State, who still remains accountable to Parliament for the provision of healthcare in England, has the ability to require CHAI to inspect a specific NHS body or type of service so that issues of interest to the public or Parliament may receive appropriate scrutiny by the inspectorate.

We do not feel that being able to respond in that way impinges on CHAI's independence because, in most cases, CHAI itself will proactively initiate such work into problems that it identifies emerging from its other review work. CHAI may also choose to initiate a review or investigation as a result of information that it receives from patients, healthcare staff or the general public. That, quite rightly, will be for CHAI to determine.

We also do not feel that Amendment No. 292 would add anything useful to CHAI's general powers in the Bill. Nothing in the Bill prevents CHAI carrying out reviews in response to requests from others.

Amendment No. 294 would prevent the Secretary of State requesting that CHAI conduct a review of, or investigation into, the provision of any healthcare by or for an NHS foundation trust or reviews of the arrangements made by those trusts for the purpose of discharging their duties under Clause 44. That clause concerns the duty of quality placed on each NHS body to put and keep in place arrangements for the purpose of monitoring and improving the quality of healthcare that it provides. The duty of quality will therefore apply to foundation trusts, and it is proper for the Secretary of State—again, because of his parliamentary accountability—to be able to request CHAI to undertake such a review or investigation.

We do not believe that anything in the present Bill suggests that CHAI will in any way be dragooned by the Secretary of State into doing things that are inappropriate. However, we consider it important that, in discharging his parliamentary accountability, the Secretary of State can give directions where it is necessary to do so in relation to a particular NHS body.

Baroness Carnegy of Lour

The noble Lord used a somewhat circular argument. For the sake of clarity, is it the case that CHAI can conduct a review on its own initiative or be told to do so by the Secretary of State but that the regulator cannot do anything about either of those things? Is that correct or have I got it wrong? Is the regulator left out of the process?

Lord Warner

We have had this discussion many times. CHAI is responsible for inspecting all NHS bodies in terms of their ability to deliver satisfactory, quality healthcare and for assessing their performance. In effect, the regulator is giving a market authorisation for particular trusts to operate with the freedoms that go with an NHS foundation trust. It does not carry the same responsibility other than when there are so many concerns about performance as to call into doubt the legitimacy and validity of that market authorisation. It is not for the regulator to respond to every set of concerns that there may be about the broad range of healthcare provided by a particular trust.

Earl Howe

I am grateful to the Minister, although I am a little disappointed. I believe that the sidelining of the regulator in relation to his responsibilities for foundation trusts is regrettable. That is what the Bill appears to do. It should not be for the Secretary of State to go in over the regulator's head, as I mentioned previously.

As regards the power given in the Bill to the Secretary of State to instruct CHAI to initiate a review, I believe that it is a question of balance. Used sparingly, that power is perfectly reasonable; used regularly, it would not be reasonable. I am somewhat heartened by what the Minister had to say about how he envisaged the power being used and, indeed, the reason for it being in the Bill at all. But it remains to be seen whether his view of matters is borne out by events. I am still uneasy about these provisions but between now and Report I shall read carefully what he said. For now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 51 [Reviews and investigations: England]:

[Amendments Nos. 289 to 296 not moved.]

Lord Warner moved Amendment No. 296A:

Page 19, line 26, leave out "An NHS body must, if regulations so provide," and insert "The Secretary of State may by regulations require an NHS body to"

The noble Lord said: Both government amendments—Amendments Nos. 296A and 297A— are simply clarificatory in nature and have been tabled on the advice of parliamentary counsel to ensure that the current practice of NHS bodies being required to publish action plans in response to reviews and investigations undertaken by the current Commission for Health Improvement continues.

NHS bodies are required to publish an action plan in response to a CHI report and to agree that plan with the relevant primary care trust or strategic health authority. The rationale here is clearly to ensure that the NHS takes action to improve and that the action plan is feasible and affordable. We believe that that approach should continue and so have also taken the opportunity to clarify that other areas in regulations relating to current CHI can be included in future regulations relating to new CHAI. Those include: time limits for preparing statements; copying statements to others; and matters that should be covered in statements. There is no need to make a similar amendment in relation to CSCI clauses since such arrangements are set out under the comprehensive performance agreement processes. I beg to move.

Baroness Noakes

I thank the Minister for his explanation of Amendments Nos. 296A and 297A. I have tabled Amendment No. 297 in this group. That amendment seeks to delete the mention of regulations from Clause 51(8). We can see no real reason for the regulations. The subsection reads perfectly well without it. It places a positive requirement on an NHS body to publish its action plan following a CHAI report. Again and again, we return to the issue of why the Secretary of State must become involved.

The issue of regulations and statements of action caused some confusion when it was discussed in another place. In fact, the Minister in another place— Mr Lammy—gave two different explanations for the regulation-making power. On 5th June, he said that the regulation-making power related to the rare case of a foundation trust not publishing its response. He said: We therefore seek the power to put it right, should it ever become necessary".—[Official Report, Commons Standing Committee E, 5/6/03; col. 623.] However, five days later, he said that regulations enable some flexibility to provide more details of how and when a statement of action to be taken will be published and, to that extent, the regulations follow in the normal way. I am not sure that I understand the whole of that sentence, but I believe that the first half says that the regulations concern the issuing of the statement.

The Minister says that the regulations will be about much more than just issuing statements and certainly not just for recalcitrant NHS bodies. Why can that not be left to CHAI and to the NHS bodies themselves? If an NHS body gave no action plan or gave an inappropriate report, surely there are plenty of levers already within CHAI. The case is simply not made for the Secretary of State to get involved at all. The sense behind our amendment applies equally to the amendments moved by the Minister. I hope that he will explain why the Secretary of State must have this power.

Lord Warner

It is simple. I thought I had explained the point in relation to some of our amendments. We believe that to have such a regulation-making power is an important safeguard to ensure accountability of NHS bodies. Where inspections reveal that action needs to be taken, there has always been a concern that there should be a mechanism for ensuring that that action is taken and that there is accountability on the part of the inspected body to take action. We think it is important and it reinforces the work of CHAI to have this regulation-making power so that we can ensure that there is an action plan, that there are courses of action that are feasible and that CHAI reports are not ignored.

Baroness Noakes

I thank the Minister for that reply. Again we have come up against the gulf between these Benches and those opposite. We believe that CHAI should be set up as an independent body that can be trusted to do things. If CHAI needs more levers to ensure that NHS bodies take the appropriate action, we would be happy to consider such amendments, but we find it difficult to accept the sticky fingers of the Secretary of State being able to delve into the tiniest parts of CHAI's operations. I shall consider carefully what the Minister has said. Doubtless we shall pass his amendments in a moment but, as I said, the sense of Amendment No. 297 also applies to his amendments. I should put him on notice that on Report we are likely to return to the amendments on the revised sections.

On Question, amendment agreed to.

[Amendment No. 297 not moved.]

Lord Warner moved Amendment No. 297A:

Page 19, line 28, at end insert— "( ) Regulations under subsection (8) may make provision—
  1. (a) as to the matters with which a statement under the regulations must deal;
  2. (b) as to the time by which any such statement must be published;
  3. (c)requiring an NHS body, before publishing any such statement, to obtain the consent of any person specified in the regulations;
  4. (d)requiring the NHS body publishing any such statement to send a copy of it to any person so specified."

On Question, amendment agreed to.

Clause 51, as amended, agreed to.

5.15 p.m.

Baroness Noakes moved Amendment No. 298:

After Clause 51, insert the following new clause—

"REPRESENTATION TO THE CHAI

A report under sections 50 and 51 which relates to, or identifies, a specific NHS body shall not be made by the CHAI unless a draft of the report has been shown to the NHS body and—
  1. (a)it has confirmed that it does not disagree with the draft report,
  2. (b) it has not responded within a reasonable period of receipt of the draft report, or
  3. (c) it has submitted comments to the CHAI in respect of the draft report and the CHAI has considered those comments."

The noble Baroness said: In moving Amendment No. 298 I shall speak also to the other amendments in the group. The amendments concern several aspects of reporting on NHS bodies covered by the Bill. Amendment No. 298 inserts a new clause after Clause 51 and relates to the reports that CHAI issues under Clauses 50 or 51. Many of the reports will be generic and will not always identify individual NHS bodies, but they may. In particular, a report under Clause 51(2)(c) will, by definition, be about an individual body.

I am quite sure that CHAI will carry out its investigations and write its reports with the highest standards of professionalism. Our amendment should not be taken to imply any criticism of CHAI, but it is possible for facts to be wrong or to be misinterpreted. That is why, for example, when the NAO carries out a value for money investigation it must not publish its report until the factual accuracy of the report has been agreed with the department concerned.

Amendment No. 298 is designed to put a small amount of balance into the process. CHAI must show a draft report to the body and must not issue it unless one of three things occurs: the body agrees; the body does not respond within a reasonable time; or the body responds and CHAI has considered any comments submitted to it. That is all very simple and designed not to impede the process but to improve it.

Amendment No. 301 is even more important because it relates to Clause 52 and a report of failings. Those reports can bring down the wrath of the Secretary of State or the regulator, or both, on the body. It is absolutely vital that the NHS body has an opportunity to state its case. Amendment No. 348 is the equivalent of Amendment No. 301 for CSCI and its reports on local authorities.

Amendment No. 300 probes what is meant by "special measures". The term is used as a possible remedy for failings that are reported under Clause 52. But "special measures" are not defined anywhere in the Bill. They could involve almost anything, but what is a measure and what makes it special? I believe that there should be more certainty about what CHAI could recommend which is why Amendment No. 300 seeks the definition of special measures in the Bill.

I understand that the term "special measures" has a meaning in the local authority context. Even if it has a precise meaning there, it does not make it comprehensible in the NHS world. The Explanatory Notes at paragraph 141 talk about special measures being an extra CHAI inspection or, rather loosely,

"other practical assistance or organisational support".

Are we quite clear that special measures must be confined to those anodyne remedies or can cruel and unusual punishments lurk within the term? I would be grateful for the Minister's views. I beg to move.

Lord Warner

I am slightly puzzled by what the noble Baroness has said. I had believed that we were discussing special measures under Amendment No. 300, which is not in this group.

Baroness Noakes

I beg your pardon. I had expected Amendment No. 300 to be in this group. It is another amendment that has been in and out of groups over the past 48 hours. I shall speak to my amendment again when we come to the group, but more briefly.

Lord Warner

I thank the noble Baroness. I am all in favour of big groupings as the noble Baroness knows. The practical effect of this group of amendments will serve to require CHAI and CSCI to give NHS bodies and local authorities the chance to comment upon the contents of reports before they are published where they have found significant failings. It is right that CHAI and CSCI should discuss the findings generally with healthcare providers and with local authorities prior to the publication of the reports. Indeed that is standard good practice within the current Commission for Health Improvement and the Social Services Inspectorate, which we fully expect CHAI and CSCI to continue. That makes certain that the trusts and local authorities concerned are able to ensure that the inspectorates make an accurate assessment of the services that they provide. Early sight of the contents of those reports would enable the body concerned to make a start on its action planning, hence bringing about early improvements to the services that it provides.

However, the Committee has to balance that with the fact that we are establishing CHAI and CSCI as authoritative independent inspectorates providing patients and service users with clear assurances about the safety, quality and efficiency of the services that they receive. If the inspectorates did not have the freedom to take action quickly here, that could lead to delay in some cases and to protracted action. Healthcare providers or councils might be in denial— in my experience that has happened—about the quality of their services and it would be difficult to confront the issue. That would not be in the best interests of patients and service users. CHAI and CSCI must, in our view, reserve the right to disagree with the inspected body and to take immediate action where they have the evidence to do so. This group of amendments does not put the service user first and tends to leave providers in the driving seat, possibly to the disadvantage of the user.

I acknowledge that other inspectorates, such as the Chief Inspector of Prisons and Ofsted, give the bodies they inspect sight of reports in advance of publication to give them the chance to correct factual inaccuracies. However, as I understand the position, there is no statutory provision to require those inspectorates to give the bodies they inspect prior sight of their reports before publication. I agree that we should aim for consistency between inspectorates in this respect. I am minded to consider further the principle behind the amendment without necessarily accepting this particular wording.

Baroness Barker

Perhaps the noble Lord will give his views on Amendments Nos. 299 and 308, which are in the group. Amendment No. 299 requires CHAI to report on failing in relation to the provision of guidance issued by the Department of Health. For example, the ombudsman's report earlier this year criticised the department for its failure to give clear guidance on continuing healthcare criteria, which had a very direct effect on NHS and local authority performance in that area. I agree with the noble Lord that the CHAI studies on the strategic nature of health and social care will be highly important. Should they not also include an assessment of the Department of Health and, in particular, the Secretary of State's guidance? That would be a true measure of the independence of the bodies we are setting up. There is a need to have that on the face of the Bill. Perhaps the noble Lord will comment on the issue.

Lord Warner

We have already made it clear that there is nothing to stop CHAI giving advice to the Secretary of State on anything which it considers is relevant to its function. We have said repeatedly that we do not think that it is right to force CHAI, in effect, to act as a judge of government policy when that is set out in guidance to the NHS. If CHAI has concerns about this—in terms of it causing problems in healthcare delivery—it will be open to CHAI to put its views to the Secretary of State.

Amendment No. 308 would enable CHAI to undertake specific studies in relation to particular statutory provisions or any other direction or guidance issued to the NHS. Presumably the amendment's purpose, as the noble Baroness says, is to hold the Government to account for their health policies.

The amendment is not necessary because Clause 53 already provides powers for CHAI to give advice as it feels fit, either to or at the request of the Secretary of State or, indeed, the Welsh Assembly, on any matter connected with the provision of healthcare.

We do not believe that it is right to set up CHAI as a judge of government policy, and, in a sense, an arbitrator on government policy. Equally, however, the Bill provides for CHAI to give advice to the Secretary of State when it thinks that is appropriate.

Baroness Barker

Will CHAI's advice be publicly available? Will CHAI have a role in advising the Secretary of State on its guidance to local authorities and NHS bodies? Therefore, it will not be a commentary, as such, on government health policy; it will be about how that government health policy is being conveyed to the bodies being judged on their performance in carrying out and implementing that policy, which is a different matter.

Baroness Howarth of Breckland

What I am about to say may help the Minister rather than elucidate what was said by the noble Baroness, Lady Barker. Will CHAI be carrying out similar functions to CSCI in terms of the Royal Commission function, which means that it will be gathering information that will reflect on government policy once it is formalised and conceptualised? Presumably, all that information will go into the public arena—and directly into the public arena because there is a responsibility to report directly to Parliament. Will that not clarify this issue?

Lord Warner

The contribution of the noble Baroness, Lady Howarth, is helpful. Essentially, this comes back to the primary purpose of CHAI and CSCI. Their primary purpose is to inspect the work and performance of health bodies and local authorities on their delivery of social care. Therefore, we are setting up these independent bodies. Their primary purpose is not to second-guess whether government policy is right or wrong. It is the Secretary of State's responsibility to answer to Parliament and to the public on that issue.

Where CHAI or CSCI perceives that a particular piece of advice may be causing specific problems in operational terms in the delivery of healthcare, it is perfectly open to CHAI under the terms of the Bill to give that advice to the Secretary of State. But it is not its primary purpose. It is worth bearing in mind that much of the guidance issued by the Secretary of State does not simply come out of the blue; it follows a consultative process within NHS interests and local government. So it does not come as a surprise to the health service or local government that they are getting this guidance. We are operating in that context.

Behind these amendments there is a suggestion that somehow these things come as a great surprise and are not thought through and that we need these independent watchdogs to review the Government's policy. That is not the purpose of these two inspectorates. We do not think that the amendment is necessary. We think that what is proposed would divert them from their primary purpose.

Of course the inspectorates will publish their annual reports. If they have given advice to the Secretary of State on a particular issue, no doubt that issue will be covered in their annual report.

Baroness Noakes

I thank the Minister for his response. I think I can paraphrase it to the noble Baroness, Lady Barker: the Secretary of State is above review; it is everyone else that has to be reviewed. I am sure that the matter will come up again at later stages of the Bill.

The Minister talked about CHAI needing to get reports out quickly. My amendment states that the body has to respond within a reasonable time. It was deliberately drafted to recognise that one size would not fit all and that it would be possible to have different timescales. But I think that the principle of involving the body, even if only for 48 hours, is extremely important.

I am grateful to the Minster for saying that he would take away the issue. I look forward to hearing his further deliberations. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 52 [Failings]:

[Amendment No. 299 not moved.]

Baroness Noakes moved Amendment No. 300: Page 20, line 2, at end insert— ( ) For the purposes of this Part, "special measures" means one or more actions that are specified in regulations.

The noble Baroness said: I shall speak very briefly to Amendment No. 300, having spoken to it once already. I remind the Minister of my questions. What are measures and what are special measures? Is it possible for cruel and unusual punishments to be imposed on NHS bodies? I beg to move.

Lord Warner

I am sure that Sir Ian Kennedy and his colleagues would not look favourably on any suggestion that they should be recommending cruel and unusual punishments. They may recommend special measures that they feel, given CHAI's expertise and first-hand account of the situation, should be taken to rectify the failings it has identified. In doing so, CHAI must give a clear justification for its recommendations. It will then be for the Secretary of State to consider what further steps should be taken.

We do not think that it is right to prescribe the detail of this in legislation. CHAI will consist of people with expertise who will go to a specific body. It will find out what may or may not be wrong and my expectation is that it will tailor its recommendations to putting things right as speedily as possible in that particular set of circumstances. Those are the special measures that we are talking about.

Should CHAI wish to recommend measures which are not specified in regulations there would in my view be an unacceptable delay while the regulations had to be mended. That could be an effect of the amendment. It would be unworkable for both parties to have their hands tied in such a way, especially given the unpredictable nature of some of the things that may be discovered by an inspectorate when reviewing a body. That is best left to the judgment of CHAI; we are sure that in order to have credibility with the NHS, the special measures that it recommends will be fit for purpose given the circumstances that it has inspected.

5.30 p.m.

Baroness Noakes

This is one of the rare occasions on which the government are prepared to trust CHAI's judgment, so I suppose that one should not be ungrateful for having identified one such small area. However, because this is such an important issue for the NHS bodies affected by the provision, it is right that the Bill should—whether directly or indirectly by regulation—specify what are the boundaries within which recommendations may be made for special measures.

That is such a vague term. It has no recognised meaning in the NHS and there are no principles by which to decide what it can and cannot do. For the sake of clarity for the NHS, it is important to ask the Government to set out what sort of things CHAI or CSCI could recommend. If, over time, those things became insufficient, that could be amended by further regulations, but clarity would again be important.

Although the Minister's response was good on the basis that he trusts CHAI, it was unhelpful because it did not provide important clarity to the NHS. We may want to return to the matter on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 301 not moved.]

Clause 52 agreed to.

Clause 53 [Functions relating to Secretary of State and Assembly]:

Baroness Noakes moved Amendment No. 302:

Page 20, line 32, after "to" insert "make regular reports available to the public about and"

The noble Baroness said: I shall speak also to Amendments Nos. 304 and 339. The amendments provide for CHAI and CSCI to make regular reports to the public. Amendment No. 302 relates to making public reports, alongside keeping the Secretary of State and the Assembly informed on healthcare provision by NHS bodies. Amendment No. 339 provides the equivalent for CSCI. Amendment No. 304 provides for public reports alongside keeping the regulator informed about foundation trusts.

When this was debated in another place, the Minister, Mr David Lammy, said that it was: obvious that the new CHAI will want to keep patients and the public informed of developments in the NHS and in independent health care provision".—[Official Report, Commons, Standing Committee E; 5/6/03; col. 577]

With respect, there is nothing obvious about that. CHAI could well start out with good intentions: I have no good reason to doubt that; but who is to say that informing the public will remain a priority? There is no mention of it in the basic duties of CHAI or of CSCI. Those of us who have operated in and around the public sector for many years have acquired a degree of cynicism about the long-term commitment to public information.

That is why I believe that the Bill will be improved by the amendments. I beg to move.

Baroness Masham of Ilton

How will CHAI inform the public; in what way?

Baroness Howarth of Breckland

I would support the noble Baroness, Lady Noakes, except that I believe that the provision is contained in Section 7 of the previous Act—certainly for CSCI's responsibility. However, the amendment also relates to my previous comment, which is that such public reports will overall be reflected in government policy, so the noble Baroness should take heart from that.

Lord Warner

I have some sympathy with the intent behind the amendments, but I must resist them none the less. Of course we are all keen to improve public information about performance of public services, and the Government are doing so. If I may say so, that is why we favour performance ratings, but there seem to be different views about that.

The Bill already contains provisions designed to ensure that the commissions' expertise and understanding of services are made available to the public. That may help the noble Baroness, Lady Masham. Clauses 51 and 57 for CHAI and Clauses 78 and 80 for CSCI provide that following an inspection, the commissions must publish reports of their findings. Most fundamentally, the "Reports and Information" clauses for CHAI and CSCI—Clauses 63 and 85 respectively—place a duty on them to send out copies of reports to those who request them. The commissions are also required to produce an annual report to Parliament that, will also be available to the public.

So there are substantial provisions in the Bill to ensure that those reports are in the public arena. To place a wide-ranging general duty on the commissions to keep the public informed about services, as the amendments are framed, could give rise to important practical problems. Given the wide-ranging demands that could be placed on the commissions, such a duty could place a serious burden on them.

However, I am willing to think further about the issue before Report to see whether there is anything practical that we can do to help.

Baroness Noakes

I am grateful to the Minister for his response—in particular, for his agreement to take the matter away to reconsider it. There is a difference between the information provisions that he mentioned, which are scattered throughout the Bill, and those referred to in the amendments. It is that information that we are trying to ensure will be in the public domain and will not be subject to a decision, which might in future not be open and transparent, about whether to keep the public informed. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments No. 302ZA and 302A not moved.]

Clause 53 agreed to.

Clause 54 [Functions relating to regulator]:

The Deputy Chairman of Committees (Lord Murton of Lindisfarne)

Before calling Amendment No. 303, I must tell the Committee that if it were agreed to, I should be unable to call Amendment No. 304 because of pre-emption.

Earl Howe moved Amendment No. 303:

Page 21, line 6, leave out "is to keep the regulator" and insert "and the regulator are to keep each other"

The noble Earl said: Clause 54 deals with the functions of CHAI relating to the regulator. In subsection (1), CHAI is required to keep the regulator informed about the provision of healthcare by and for NHS foundation trusts. The process should work both ways. Obviously, the regulator is to a large degree dependent on CHAI to inform him of any concerns about the quality or availability of services provided by foundation trusts. Equally, CHAI ought to be able to rely on the regulator to inform it of any matters that may help it to perform its functions better.

I am here thinking especially of any notable example of good practice in a foundation trust—bearing in mind that in Clause 47(1) the general function of CHAI, before all others, is that of encouraging improvement in the provision of NHS healthcare. But it is also possible to imagine the regulator being made aware of an area that merits possible investigation by CHAI—not only in the foundation trust concerned but in the NHS more widely. An example might be a deterioration in the delivery of cancer services by a foundation trust within a cancer network or plans by a foundation trust to reconfigure one of its services in a way that may have a knock-on effect on other NHS bodies. In those and other such circumstances, the regulator should have a duty to communicate any concerns to CHAI. That ought to be a specific duty. I beg to move.

Lord Warner

The regulator and CHAI will be under a duty to co-operate with each other under Clause 54(3). That duty will ensure that the regulator keeps CHAI informed of any other information relevant to the exercise of CHAI's functions. However, the regulator does not have a function of reviewing healthcare provision of NHS foundation trusts. It is not therefore sensible to require him to keep CHAI informed about such provision. The distinction that we make is not to place a duty on the regulator, as the noble Earl proposes, but to use the duty to co-operate in Clause 54(3) to ensure that the regulator makes available to CHAI information relevant to the exercise of its functions.

Earl Howe

I am surprised by that answer. I realise that there is a clear distinction between the role of CHAI and that of the regulator. The regulator is not expected, in the normal course of his duties, to carry out inspections and to supplant CHAI. But I would have thought that he should have a duty to inform CHAI if any matters of concern came to his attention. The duty to co-operate in Clause 54 does not seem explicit enough. If it were, one would have to ask why subsection (1) of Clause 54 was necessary in the other direction. The Government clearly thought it important to give CHAI a specific duty to keep the regulator informed—in other words, it is not enough to rely on the duty to co-operate. We shall have to reflect on the matter. I am not convinced by the Minister's reply, but, for now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 304 not moved.]

[Amendment No. 304A had been withdrawn from the Marshalled List.]

Clause 54 agreed to. Clause 55 [Reviews of data]:

On Question, Whether Clause 55 shall stand part of the Bill?

Earl Howe

I ask the Minister to comment on this clause, because the Explanatory Notes are not very illuminating. Subsection (1) states: 'The CHAI may review— (a) the quality of data obtained by others in relation to the provision of health care". I am not clear who the "others" are in that context. It is potentially a very wide provision that would appear to allow CHAI to review data sources outside the public sector. If that is a correct interpretation, will the Minister gave an example of what kind of data sources could be reviewed in that way, and why?

Lord Warner

I shall try to help. I appreciate the noble Earl's reasons for raising the issue. Clause 55 will enable CHAI to evaluate studies and research carried out by other bodies. Such bodies might include the Royal Colleges, independent commentators, academic institutions or other organisations concerned with public policy or services.

It is very important that patients and the public have a clear picture of what is happening in the NHS. As we all know too well, it is understandably the subject of much analysis and commentary, sometimes conflicting and sometimes misleading. But patients and the public deserve to have the facts about the NHS as it is. We therefore wish to ensure that there is a safeguard that, in fulfilling its role as the pre-eminent independent organisation to which patients and the public look for information about the quality of NHS care, CHAI can evaluate and, where appropriate, comment on the quality of studies carried out by other bodies, including the methods used in carrying out those studies. That may be to confirm that the studies have a solid basis in evidence and reach valid conclusions.

The National Health Service Reform and Health Care Professions Act placed a similar function on the Commission for Health Improvement to conduct reviews and issue reports on the quality of data obtained by others relating to the management, provision, quality, access and availability of healthcare for which NHS bodies or service providers are responsible, the validity of conclusions drawn from such data and the methods used in their collection and analysis. This clause gives a similar role to the new CHAI.

Subsection (2) makes clear that CHAI must publish a report. That will enable the public to make informed judgments about the quality of information available and healthcare provision. It will help to provide transparency in CHAI's work.

By contrast, CSCI, under Clause 76, will look at research into social care and determine whether it can improve the quality of social care services. It will look, in particular, at the conclusions of such research and whether they are valid. That is different from the role of the Social Care Institute for Excellence, which gathers and publicises knowledge about how to improve social care services. I have given information on CSCI in the hope that it will be helpful, although the noble Earl did not raise it. I have tried to explain the thinking behind Clause 55.

5.45 p.m.

Earl Howe

That is helpful. I am grateful to the Minister. How is CHAI supposed to get behind data provided by the Royal Colleges or academic institutions to review them? It has no power in the Bill to require a body in the independent sector to co-operate with it or to supply further and better particulars. Merely to review the data as they stand might lead to CHAI producing what none of us wants—a half-baked analysis. I am unsure, given the lack of powers in the clause, whether it will be enough for the purposes that the Government clearly have in mind. Can the Minister shed more light on that?

Lord Warner

CHAI would not fulfil its primary duties if it sat around waiting for reports that it might wish to have a go at, or if it tried to investigate too many. I am sure that we can all remember circumstances where there is controversy and differences of view on an issue. Where possible, CHAI might wish to look into those differences of view and to do its best—possibly using its own data, for example—to clarify the situation in the public interest. CHAI could not force people to give it access to their methodology and data. On the other hand, if it raised concerns about the validity of particular views expressed, those espousing those views would wish to put their methodologies in the public arena and make them available for CHAI to examine. That is all that we are trying to do.

Earl Howe

Once again, I am grateful to the Minister. We would all have that hope in those circumstances. There is a risk that CHAI will not be able to get sufficiently behind the methodology to make a balanced and well informed judgment. One must hope that there will be an inclination to co-operate, if not a specific duty.

Clause 55 agreed to.

Clause 56 [Co-ordination of reviews]:

Baroness Noakes moved Amendment No. 305:

Page 21, line 20, leave out "may" and insert "must"

The noble Baroness said: The effect of this amendment on Clause 56 would be that CHAI "must", rather than "may", co-ordinate reviews of health bodies. It is, in part, a debate along the may/shall lines that our Committees often enjoy.

We support the basic thrust behind Clause 56. For far too long there has been at best patchy co-ordination of reviews of bodies in the NHS. There are many stories of the revolving door syndrome when as soon as one reviewer departs the next arrives. I was recently told that 39 different bodies, including the Royal Colleges, have the right to review an NHS trust. This is hugely wasteful and demoralising for the staff who just want to get on and deliver patient care. It is right to put someone in charge of this and someone must, not may, do that co-ordination.

There is a question, however, about whether CHAI should be doing that. Given the huge tasks that CHAI already has to deliver, we might be overloading it. How much of CHAI's time is estimated to be absorbed in this task? Organising 39 reviewing bodies over hundreds of NHS bodies is not a part-time activity. Will CHAI be resourced to do this? We want CHAI to make a positive impact on the ground and it will not be able to do that unless it is properly resourced and well set up to do the task. What levers will CHAI have to ensure compliance with its co-ordination function? It is all very well to say that CHAI may or must co-ordinate, but it takes two—or possibly 39—to tango. What happens if the other bodies refuse to join in? I beg to move.

Lord Warner

Amendment No. 305 would place an explicit duty on CHAI to promote the effective co-ordination of reviews and assessments carried out by other public bodies or other persons in relation to healthcare provided by English NHS trusts and cross-border special health authorities. It is important that we understand that the use of the word "may" is normal parliamentary language when a general function—which is what this is—is being specified rather than a particular duty. That is why the word "may" has been used rather than "must". I am confident that CHAI, the primus inter pares of healthcare inspectors, will want to ensure that it facilitates the sharing of best practice between other bodies that have an interest in the provision of healthcare. Given Professor Sir Ian Kennedy's previous comments on the fragmentation of NHS inspection, I am confident that the commission will want to seize the initiative on relieving the burdens of inspection on frontline NHS staff.

I cannot estimate the time that this function will cause CHAI to invest in terms of resources, but I assure the Committee that we are not setting up CHAI to be inadequately resourced. We want it to have the appropriate resources to enable it to fulfil its functions. That is our approach. I also remind members of the Committee that Sir Ian's document Vision for CHAI clearly indicates the commission's willingness to work in real partnership with others, especially in the area of common data collection. I am not convinced that we need to include the explicit duty proposed in the Bill, but I am willing to look again at the issue raised in the amendment, which I agree with the noble Baroness is an important one, and return to the matter on Report if we think that we can make drafting improvements.

Baroness Carnegy of Lour

Many people will regard that as good news. Will the Minister clarify what is meant by general functions? He said that this was a general function of CHAI rather than a specific duty. When he discusses that matter with his officials perhaps he could clarify what that means, because it is a slightly woolly statement. Is it really an optional rather than a general function? The description is one of so many that he has given that I cannot expect him to be anything but annoyed at my niggle, but I thought that it was rather a woolly answer to say that it was a general function rather than a specific duty.

Lord Warner

I will write to the noble Baroness.

Baroness Carnegy of Lour

There is no need to write. I do not want to use the Minister's time, but he may bring the matter into discussion with his officials.

Baroness Noakes

Will the Minister answer my question about what levers CHAI would have to ensure co-ordination? It is an important point.

Lord Warner

In an earlier amendment, I think that the noble Baroness used the phrase "cruel and unusual punishments". They will not be a feature of CHAI's style and approach. Special measures will not be its approach. It will use its leading position in this area, its vision, its authority and ability to persuade people and keep reminding them of the impact of inspection on people on the front line and managers in the NHS to ensure that there is not a steady traffic of inspectors of one type or another going to the same authorities week after week. That will be the approach. I am sure that Sir Ian and his team will want to use friendly persuasion as far as possible, but will make it clear when there are serious concerns that need to be addressed by other inspectorates.

Baroness Noakes

I thank the Minister for that reply. It was a pity that he was not able to respond to the question asked by my noble friend Lady Carnegy. It was a reasonable question to be able to elucidate that distinction during the course of our Committee, because he mentioned it in his own response. My noble friend did not ask for a reply, but it might nevertheless be useful for other members of the Committee who, like my noble friend, also cannot immediately see with clarity how the measure will work in practice.

If Sir Ian Kennedy reads the Hansard of our proceedings, I am sure that he will be grateful to see as near as one can get to a statement of commitment to resource by the Government. That is certainly welcome, because it is important that CHAI is resourced properly to perform the tasks laid on it. This is an important task. Given that it has no levers, whether CHAI can have an impact is also linked to resource. If CHAI is properly resourced and can play its leading part much will follow naturally. If it will always have to make hard decisions about what can and cannot be done fully within its resource envelope, it may not be able to maintain its pre-eminent position; it may not be able to co-ordinate effectively. Perhaps those are matters for debate at another time.

I was grateful that the Minister said that he would look again at the thrust behind the amendment. We think that the issue is important and I look forward to rejoining the debate on an amendment moved by one or another of us on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 306 not moved.]

Clause 56 agreed to.

[Amendment No. 307 not moved.]

Clause 57 [Studies as to economy, efficiency etc]:

[Amendments Nos. 307A and 308 not moved.]

Clause 57 agreed to.

Clause 58 [Additional functions]:

Baroness Barker moved Amendment No. 309.

Page 22, line 9, after "efficiency" insert ", equity"

The noble Baroness said: This is a rather simple amendment to probe or highlight one of the more interesting questions that we have worked around in different ways throughout our Committee proceedings—the absence of the word equity in the long list of things that CHAI and CSCI are meant to investigate and review. The Bill talks about improvement of economy, efficiency and effectiveness of the exercise of NHS bodies but nowhere does it mention equity, fairness, or access to health care for different groups of the population. I reiterate my earlier comments that many of us have concerns about the extent to which minority populations or people with particular conditions will fare in this brave new world of acute hospital provision. It seems strange that that principle is not on the face of a Bill that sets out in such a heavy-handed way the extent to which these bodies will work and that establishes—as the noble Baroness, Lady Noakes, said—the very strong hand of the Secretary of State. That is why we seek to insert the provision.

We think that equity is one of the important founding principles of the NHS. We also think that it is an important enduring principle, no matter how the NHS is managed. We think that it should be inserted into the Bill.

6 p.m.

Lord Chan

I support Amendment No. 9. When CHI, the current body, was looking at its regular reviews, it emerged that enquiries had not been made in the summer of 2001 into the issue of equity for ethnic minority groups. I know that because I was asked in 2001 to advise CHI on the issue. I think that the point should be very clearly spelt out for any new body such as CHAI.

Baroness Masham of Ilton

I, too, support the amendment. As president of the Spinal Injuries Association I know very well that severely disabled people going into hospital can have truly terrible difficulties particularly as regards help with their bodily functions. We are currently having a series of conferences with the Royal College of Nursing about evacuation of the bowels which all paraplegics and tetraplegics have to do. There is huge difficulty when they go into a general hospital.

Lord Warner

We are certainly not out of sympathy with the thinking behind Amendment No. 309. Clearly it would be possible to give CHAI a new function under Clause 58 that included considering the fairness or equity of healthcare provision. It is worth reminding noble Lords that we have made it clear in Clause 47 that CHAI is to be concerned with all factors relating to the quality of healthcare when it exercises any of its functions in the provision of healthcare under Clause 47(1) or Clauses 48 to 56.

It is our view that regulations under Clause 58 could require CHAI to be concerned with any of the factors listed in Clause 47(2) in connection with any new function. To do so could be considered to be part and parcel of conferring a new function, or else would be covered by the power to make incidental or supplementary provision in Clause 191. So there is already plenty of provision to do that in the Bill. However, we think that the precise provision required would depend on the details of the proposed new function. We think that that is a matter best left to regulations rather than set out on the face of the Bill, so that it can be made more specific to a particular function.

Baroness Barker

I thank the Minister for his reply although I did not find it particularly compelling. Given the principle of equity and its importance in the daily provision of services, it is very strange that it should be left to the outer darkness of regulation and to the rather obscure permissive powers in the Bill. I take great heart from the support of noble Lords. We are not talking about the provision of specialist services. We are talking about ensuring that individuals and groups who are disadvantaged in health and social care have access to services which everyone should have. We are not talking about special provision in any way at all.

The Minister's reply, like his earlier replies to earlier amendments from these Benches, is somewhat unsatisfactory. The amendment deals with a fundamental principle which is far too important to be left to vague permissive powers. It is disappointing that equity is not on the same level as economy, efficiency and all the rest of it. We may well return to the issue. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Noakes moved Amendment No. 310:

Page 22, line 18, at end insert— "( ) Regulations made under this section shall not have effect unless they have been approved by a resolution of each House of Parliament."

The noble Baroness said: Amendment No. 310 would add a new subsection to Clause 58 so that regulations under that clause are subject to the affirmative procedure. I shall speak also to Amendment No. 354 which is a similar amendment to Clause 82 relating to CSCI.

Clause 58 allows the Secretary of State to add functions to CHAI. Paragraph 150 of the Explanatory Notes states: It is envisaged that CHAI may need to be given additional functions".

If it is already envisaged that CHAI may need additional functions, why are they not included in the Bill? Will the Minister say what additional functions CHAI might need?

The Department of Health's view as set out in its memorandum to the Select Committee on Delegated Powers and Regulatory Reform is that the healthcare sector is constantly changing with new initiatives emerging which would necessitate the extension of the already very wide functions of CHAI. I find it very difficult to envisage an extension of CHAI's functions. If we look at its functions under Clauses 47 to 57, it is hard to come up with a more comprehensive set of functions. Will the Minister say what kind of initiative would fall outside those functions? I really do struggle with this.

I am aware that a similar provision was included in the legislation creating the old CHI. Will the Minister say whether that has ever been used or whether its use has ever even been contemplated?

I am not at all clear that additional functions beyond those already set out in the Bill could ever be needed. However, if they were, I believe that Parliament should be given a proper opportunity to debate any regulations under this section. That is what my amendments are about. I beg to move.

Lord Hunt of Kings Heath

I wonder whether I may use this debate to raise an issue regarding potential additional functions for CHAI. In its report, Independent Regulators, which I have read, the Better Regulation Task Force points out: The Commission for Health Improvement does not have an appeals mechanism". I question whether that is right given the importance of the reviews currently undertaken by CHI and in future by the Commission for Healthcare Audit and Inspection.

The question which I should like my noble friend to consider between Committee and Report stage is whether it will be possible through Clause 58 to add an additional function to ensure that CHAI is subject to independent review. Noble Lords opposite have disagreed with me about the issue of performance ratings. I do not think there is any doubt but that a CHAI review can have very important consequences for the individual institutions inspected. For example, a combination of a "poor" or a "very poor" review by CHAI with perhaps a no-star rating is almost certain to lead to people losing their jobs within that organisation.

There is an issue of "felt fair" justice. When the results of work by CHAI potentially lead to such adverse consequences on an organisation, there ought to be a mechanism whereby the work of CHAI is subject to an appeal or review mechanism. In raising the issue, I declare that I am a member of the advisory board of CHAI, but I am in no sense speaking on behalf of CHAI in this matter. It is important to ensure that there is a "felt fair" mechanism. Would my noble friend be prepared to look at it between Committee and Report?

Lord Clement-Jones

I hesitate to intervene at a point where I have taken no part so far. The noble Lord, Lord Hunt, raised a most interesting question as regards the Better Regulation Task Force itself. The Minister will know that next week I shall be taking the opportunity to ask a Starred Question about the Better Regulation Task Force report, which is an extremely good report. When Mr Arculus launched the report, the NHS was described as the greatest victim of regulatory excess.

As the noble Lord, Lord Hunt, said, one of the report's recommendations is that all independent regulators should have an appeals' mechanism so that stakeholders can challenge decisions without recourse to judicial review. The regulator should, however, be able to dismiss time-wasting appeals. That seems a good balance. The Minister is as keen on balance as he is on flexibility. I am sure that that will strike a chord.

It may be that we shall need further consideration of the report produced by Mr Arculus and his colleagues between Committee and Report stages. Some fruitful mining may be made of it in terms of further amendments on Report. In the mean time, it would be useful if the Minister could indicate his view as to the suggestion made by the noble Lord, Lord Hunt.

Lord Warner

As the noble Lord will concede, it is extremely difficult to keep one's balance when showing flexibility, but I shall endeavour to do so. As I said in previous discussions, we shall examine carefully the Better Regulation Task Force report on a number of aspects relating to the Bill. I shall take note of the points raised by my noble friend Lord Hunt and Members of the Committee and we shall consider them further.

As regards the amendment moved by the noble Baroness, Lady Noakes, we have no plans to add functions at present. But the provision—I think that she quoted the case for this power—is important in relation to the future. Certainly, I do not fancy my chances at always forecasting the future accurately in this area. It seems a sensible provision. In answer to the noble Baroness's other question, we have used the powers in the 1999 Act to give new functions to the Commission for Health Improvement in relation to NHS bodies that were not listed in the 1999 Act. That indicates that, even in a quite short period of time, there may be a need to act in this area, particularly in a field such as healthcare where the situation changes quite quickly.

Turning to Amendments Nos. 310 and 354, perhaps I may remind Members of the Committee that the House of Lords' Select Committee on Delegated Powers and Regulatory Reform considered the Bill in its 24th report. It did not think that it was a cause for concern that these regulations were made under the negative procedure. I want to put that on the record.

Amendment No. 354 seeks to ensure that regulations made under this clause are subject to approval by resolution of each House of Parliament; that is, the affirmative procedure. The Select Committee on Delegated Powers and Regulatory Reform considered the Bill and, in its report, states: None of the powers conferred on the Secretary of State is subject to affirmative procedure. Except where NAW procedures apply, and except in a small number of cases (such as commencement orders) where there is no Parliamentary procedure, the negative resolution procedure applies throughout". The report continues: The National Health Service's legislative structure has, since its inception, left a great deal to subordinate legislation subject to negative procedure … and directions. This basic framework has been maintained on successive reorganizations, including those effected by the various enactments of recent years. We do not consider, therefore, that the number of delegated powers in the bill is a cause for concern". I just want to put that on the record in relation to these particular amendments.

Baroness Noakes

I thank the Minister for that reply. I thank the noble Lords, Lord Hunt of Kings Heath and Lord Clement-Jones for raising the important issue of the appeals mechanism. We touched on that earlier in Committee deliberations. The report of the Better Regulation Task Force is clearly very important.

However, those matters were not the focus of the amendments that I moved earlier about whether there should be affirmative regulations for adding additional CHA1 functions. The Minister argued that he wants to keep this power to cope with changes over time. Perhaps we may agree to differ on whether there is enough legislation already to cover almost anything that any reasonable person could imagine occurring under the existing Bill. But if the department says it needs that power, the question arises as to what scrutiny should be applied.

I heard what the Minister said about the Delegated Powers Committee, whose report I have already read. I have the greatest respect for that committee, but it is incumbent upon Members of this Committee to consider whether, in individual cases, they are content to leave matters to the relatively light parliamentary scrutiny that negative procedure involves. This is an area where we should keep the extension of CHAI and the extension of CSCI under the firm control of Parliament: the affirmative procedure is good in this case. I should like to seek the opinion of the Committee.

6.16 p.m.

On Question, Whether the said amendment (No. 310) shall be agreed to?

Their Lordships divided: Contents, 99; Not-Contents, 111.

Division No 1
CONTENTS
Addington, L. Jenkin of Roding, L.
Alderdice, L. Jopling, L.
Anelay of St Johns, B. Kilclooney, L.
Astor of Hever, L.[Teller] Lamont of Lerwick, L.
Attlee, E. Liverpool, E.
Barker, B. Livsey of Talgarth, L.
Blackwell, L. Lucas, L.
Blatch, B. Luke, L.
Bledisloe, V Lyell, L.
Bradshaw. L. McColl of Dulwich, L.
Bridgeman, V. MacGregor of Pulham Market, L
Brougham and Vaux. L L.
Burnham. L. Mackie of Benshie, L.
Byford, B. MacLaurin of Knebworth, L.
Campbell of Alloway, L. McNally, L.
Chan, L. Maddock, B.
Clement-Jones, L. Mancroft, L.
Colwyn, L. Mar, C.
Cumberlege, B. Mar and Kellie, E.
Dixon-Smith, L. Marlesford, L.
Eccles of Moulton, B. Methuen, L.
Elton, L. Miller of Chilthorne Domer, B.
Emerton, B. Monro of Langholm, L.
Erroll, E. Murton of lindisfarne, L.
Fearn, L. Newby, L.
Ferrers, E. Noakes, B.
Fookes, B. Northbrook, L.
Glenarthur, L. Northesk, E.
Gray of Contin, L. O'Cathain, B.
Hanham, B. Onslow, E.
Henley, L. Palmer, L.
Holme of Cheltenham, L. Park of Monmouth, B.
Howe. E. Pearson of Rannoch, L.
Howe of Aberavon, L. Phillips of Sudbury, L.
Howe of Idlicote, B. Plumb, L.
Howell of Guildford, L. Rawlings, B.
Hunt of Wirral. L. Razzall, L.
Rees, L. Skelmersdale, L.
Roper, L. Smith of Clifton, L.
Rotherwick, L. Stern, B.
Russell, E. Stewartby. L.
St. John of Bletso, L. Stoddart of Swindon, L
Saltoun of Abernethy, Ly. Thomas of Gresford, L.
Scott of Needham Market, B. Tordoff.L.
Seccombe, B. [Teller] Tugendhat, L.
Selkirk of Douglas, L. Waddington, L.
Selsdon, L. Wade of Chorlton. L.
Sharp of Guildford, B. Wallace of Saltaire. L.
Sharpies, B. Walmsley, B.
Shutt of Greetland, L. Williams of Crosby, B.
NOT-CONTENTS
Acton, L. Hilton of Eggardon, B.
Alli, L. Hogg of Cumbernauld. L.
Amos, B. (Lord President) Hollis of Heigham, B.
Andrews, B. Howarth of Breckland. B.
Archer of Sandwell, L. Hoyle, L.
Ashton of Upholland, B. Hughes of Woodside. L.
Bach, L. Hunt of Kings Heath, L.
Bassam of Brighton, L. Irvine of Lairg, L.
Berkeley, L. Islwyn, L.
Bernstein of Craigweil, L. Janner of Braunstone, L.
Bhatia, L, Jay of Paddington, B.
Blackstone, B. Jones, L.
Borrie, L. Jordan, L.
Bragg, L. King of West Bromwich. L.
Brennan, L. Kirkhill, L.
Brett, L. Layard, L.
Brooke of Alverthorpe, L. Lea of Crondall, L.
Brookman, L. Lipsey, L.
Brooks of Tremorfa, L. Lockwood, B.
Burlison, L. Lofthouse of Pontefract.L.
Campbell-Savours, L. Macdonald of Tradeston, L.
Carter, L. McIntosh of Haringey, L.
Chandos, V. Mclntosh of Hudnall, B.
Clark of Windermere, L. MacKenzie of Culkein, L.
Clarke of Hampstead, L. Mackenzie of Framwellgate, L.
Clinton-Davis, L. Mallalieu, B.
Corbett of Castle Vale, L. Masham of Ilton, B.
Crawley, B. Mason of Barnsley, L.
David, B. Massey of Darwen, B.
Davies of Coity, L. Mitchell, L.
Davies of Oldham, L. [Teller] Morgan, L.
Dean of Thornton-le-Fylde. B. Morris of Aberavon. L Desai, L.
Patel of Blackburn, L. Dixon, L.
Plant of Highfield, L. Donoughue, L.
Puttnam, L. Dormand of Easington, L.
Radice, L. Eatwell, L.
Ramsay of Cartvale, B. Elder, L.
Randall of St. Budeaux, L. Evans of Parkside, L.
Rendell of Babergh, B. Evans of Temple Guiting, L.
Richard, L. Falconer of Thoroton, L. (Lord Rooker, L.
Chancellor) Sawyer, L.
Farrington of Ribbleton, B. Scotland of Asthal, B.
Faulkner of Worcester, L. Sheldon, L.
Filkin, L. Simon, V.
Gavron, L. Thornton, B.
Gibson of Market Rasen, B. Tomlinson, L.
Goldsmith, L. Turnberg, L.
Gordon of Strathblane, L. Turner of Camden, B.
Goudie, B. Warner, L.
Gould of Potternewton, B. Warwick of Undercliffe, B.
Graham of Edmonton, L. Watson of Invergowrie. L.
Grocott, L. [Teller] Whitaker, B.
Haskel, L. Whitty.L.
Haskins, L. Wilkins, B.
Hayman, B. Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.