HC Deb 12 July 2000 vol 353 cc878-916 '. The Commission may at any time give advice to the Secretary of State on—
  1. (a) any changes which the Commission thinks should be made, for the purpose of securing improvement in the quality of services provided by local authorities in England in the exercise of relevant functions, in the standards set out in statements under section 48; and
  2. (b) any other matter connected with the exercise by local authorities in England of relevant functions.'—[Mr. Hutton.]

Brought up, and read the First time.

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The Minister of State, Department of Health (Mr. John Hutton)

I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker (Mr. Michael Lord)

With this it will be convenient to discuss the following: Government amendment No. 53.

Amendment No. 31, in clause 31, page 17, line 6, after "functions", insert "of regulation and inspection".

Amendment No. 96, in clause 44, page 22, line 40, at end insert— '(1A) The description of premises referred to in paragraph (1)(b) does not extend to the private dwelling-house of a foster parent'. Amendment No. 3, in schedule 1, page 84, line 3, at end insert—'Committees and Directorates

6A. The Commission shall establish—

  1. (a) an Independent Healthcare Committee chaired by a Commissioner who shall have specific responsibility for the Commission's functions in respect of independent hospitals; and
  2. (b) a Nursing and Care Homes Committee chaired by a Commissioner who shall have specific responsibility for the Commission's functions in respect of nursing and care homes.
6B. The Commission shall establish—
  1. (a) a Directorate of Independent Healthcare under a Director of Independent Healthcare, who shall report to the Independent Healthcare Committee; and
  2. (b) a Directorate of Nursing and Care Homes under a Director of Nursing and Care Homes, who shall report to the Nursing and Care Homes Committee.
6C. The Secretary of State may by regulations define the respective responsibilities of the Committees established in accordance with paragraph 6A.'. Amendment No. 32, in page 84, line 3, at end insert:—'Healthcare Committee

6A. The Commission shall establish a Healthcare Committee chaired by a Commissioner who shall have specific responsibility for the Commission's functions in respect of independent hospitals. 6B. The Secretary of state shall appoint a Deputy Chairman of the Healthcare Committee from the staff of the Commission for Health Improvement ("CHI"), and the Deputy Chairman shall have specific responsibility for ensuring that the system of inspection of independent hospitals is common and comparable to the system used to inspect NHS hospitals. 6C. The Secretary of State may by regulation define further specific responsibilities of the Committee established in accordance with paragraph 6A.'. Government amendment No. 82.

Mr. Hutton

In Committee, the hon. Member for Runnymede and Weybridge (Mr. Hammond) tabled a similar amendment, which would have allowed the commission to advise the Secretary of State on national minimum standards and other matters relating to part III services. I accepted the principle of the amendment but was unable to accept the wording. I am happy to put this more suitably worded new clause before the House.

The new clause is similar in effect to clause 7(5), which gives the commission the power to provide the Secretary of State with any information that it thinks would improve the quality of part III services, as defined in the Bill. The clause allows the commission, in the course of fulfilling its inspection role, to report to the Secretary of State if changes need to be made to the national minimum standards to secure improvements to local authority fostering and adoption services, and on any other matter connected with the exercise of these functions.

Through its inspection of local authority fostering and adoption services, the commission will be able to make a judgment on how effective the standards are. It is important that it should be able to pass on advice that would improve the quality of these services to the Secretary of State. This will ensure the continuing improvement of standards across the country. The Government are strongly committed to that. I thank the hon. Gentleman for raising this issue, as that will be an important function for the commission.

On amendment No. 53, the hon. Gentleman tabled an amendment in Committee that would have had the effect of requiring Ministers to publish the reports of all inquiries held under clause 10. As I made clear to the hon. Gentleman in Committee, we certainly intend to publish the inquiry reports. It is crucial for the public to have confidence in the commission and in the services that it is regulating. It is clearly desirable for failings in those services, or in the regulatory system, to be open to public scrutiny, so that lessons can be learned for the future.

The amendment makes it absolutely clear that all inquiry reports will normally be published, but allows the Government to withhold publication in exceptional circumstances only. As hon. Members will appreciate, there could conceivably be rare instances in which it would not be appropriate to publish a report—if, for example, it included unproven allegations against an individual that could possibly be interpreted as being defamatory. I hope, however, that that will never happen, and that it will be possible to publish all reports.

Let me now deal with amendment No. 82. The Government have made it clear throughout that they intend the commission and the councils to employ their own staff, and intend their functions normally to be carried out by members of their staff. On occasion, however, they may need to sub-contract work to outside people and organisations. For example, the commission may on occasion need to contract some of its inspections to self-employed inspectors if its own inspectorate is reduced owing to illness or a sudden surge of vacancies, although I hope that such problems will not occur. More important, however, the commission may want to contract specialist expertise to help it in its inspection function. It may, for instance, want to contract an NHS trust to provide specialist pharmaceutical advice. Similarly, the councils may wish to contract an outside organisation to provide them with specialist advice.

The purpose of this amendment to paragraph 13 of schedule 1 is simply to ensure that the commission and the councils have the power to sub-contract work, in an entirely sensible and pragmatic fashion.

Mr. Philip Hammond (Runnymede and Weybridge)

It is perhaps fitting for us to start with a Government new clause that reflects our constructive discussion in Committee. On a number of occasions the Opposition tabled amendments that the Government could not accept—sometimes for drafting reasons, sometimes because they were not entirely happy with the precise way in which the Opposition had sought to amend the Bill—although they were willing to accept the principle.

Although, in the true traditions of this place, we had heated discussions on some issues, by and large the Committee engaged in constructive consideration, which has led to significant changes. I believe that some 37 of the Government amendments and new clauses with which we shall deal today respond to issues raised by Opposition parties in Committee. The Government have reshaped those ideas into a form acceptable to them, and we appreciate that.

New clause 16 gives the National Care Standards Commission a role in relation to the functions of local authorities which mirrors the role that the Bill gives it in clause 7(5) in relation to what it describes as part II services. The clause allows the commission to act as the Secretary of State's eyes and ears—to advise him on changes that might be required to national minimum standards in order to secure improvements in the delivery of services.

As the Minister has acknowledged, we proposed such a measure in Committee. We referred to part III services, thinking that that would nicely reflect the reference to part II services in what is now clause 7. Sadly, however, while part II services are defined, part III services are not. The Minister therefore rightly described our proposal as defective, but, following consideration, has presented a way of achieving the objective within the confines of the definitions in the Bill. "Relevant functions" in relation to local authorities is defined in clause 43.

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During discussions in Committee on the role of the National Care Standards Commission, particularly in providing information and advice to the Secretary of State, we expressed the view that it would be good if the commission could be a watchdog out and about among providers and users of services, and if it were able to flag up issues to the Secretary of State, quite apart from any areas where the Secretary of State might specifically require it—as he has the power to do—to investigate a matter and to report back. In other words, it might instigate such investigations itself.

To give that role of watchdog, it would be necessary for that information to be published and widely known, so that people outside were aware of the concerns that the commission had identified and had reported back to the Secretary of State. We would have preferred a provision that required publication of the advice given to the Secretary of State in order to stimulate public debate.

The Government were not prepared to concede that point. We had that argument and lost it. That somewhat limits the power of the care standards commissioner to flag up problems effectively for public scrutiny. Nevertheless, new clause 16 is a worthwhile extension to the powers and capabilities of the commission and we welcome it. I am grateful to the Minister for taking the time and trouble to redraft what we originally tabled and to bring it forward for inclusion in the Bill.

Government amendment No. 53 deals with a slightly different issue that touches on some of the same concerns. I mentioned in relation to new clause 16 our preference for advice that was given to the Secretary of State to be published, so that it was available for public scrutiny. The amendment addresses a concern raised in Committee about the publication of inquiry reports. It makes it clear, as the Minister has said, that the norm will be that such inquiry reports will be published in a manner determined by the Minister. He has reserved for himself the power in exceptional circumstances not to proceed with publication.

Again, in Committee, we sought to change that arrangement, so that it would be the person conducting the inquiry who determined whether the report should be published and, indeed, the mode of publication. The Minister was not able to agree with us on that point, but he acknowledged then that he expected the norm to be publication and that publication would be withheld only in exceptional circumstances.

The amendment meets the Government's commitment in Committee to provide for that point on Report. The Minister gave us one example of what he might consider to be an exceptional circumstance: a situation where the contents of a report might be considered libellous. I had thought that he probably had in mind a situation where criminal proceedings might be contemplated and the material in the report might prejudice those proceedings and, thus, be inappropriate for publication at that time. I hope that he will acknowledge that in a case where, for example, criminal proceedings are contemplated, there is an argument for delaying publication of an inquiry report in order to allow those criminal proceedings to continue uncompromised by publication of the report. However, I suggest that, in those circumstances, it would be in the public interest that the report was published eventually.

I can think of very few circumstances beyond the one that the Minister mentioned in which it would be appropriate not ever to publish. Even the circumstances that the Minister mentioned might be an argument only for delay, until the matters giving rise to the possible libel had been resolved.

I should be grateful if, later in the debate, the Minister will say whether the libel situation that he intimated and the possibility of criminal prosecution are the only situations in which he envisages immediate publication not being possible, and also whether he agrees that, in the case of pending criminal proceedings, it would be possible for the report to be published eventually, at an appropriate time.

The Liberal Democrats' amendment No. 31, which was tabled by the hon. Members for Sutton and Cheam (Mr. Burstow) and for Isle of Wight (Dr. Brand), seeks to tighten the commission's power to require disclosure of any information that it considers to be "necessary or expedient"—I emphasise those words— for the purposes of its functions. The amendment would tighten that power by making it clear that subpoenas can be used only in relation to material that is "necessary or expedient" for the purposes of the commission's functions of regulation or inspection.

I expressed a concern in Committee that I am sure Liberal Democrat Members share—amendment No. 31 expresses a similar concern—but I am not sure that their amendment, albeit well meaning, really deals with the mischief that concerns us. The real concern that we expressed was that the Bill enables the care standards commission to conduct fishing expeditions—to seek information from registered persons without necessarily having to indicate a specific reason why it needs that information, and perhaps even to trawl widely in the hope of finding something that might incriminate the person or persons in question, leading ultimately to the deregistration of those people or that establishment.

In this debate, it is important for us to explore with the Minister how he intends to prevent the commission from undertaking that type of fishing expedition. Perhaps he will be able to reassure us that he can use the extensive regulation-making power that the Bill gives to the Secretary of State to prevent that type of activity.

Mr. John Bercow (Buckingham)

I think that my hon. Friend will recall that on Second Reading I inquired about the nature of the regulations that will be introduced attendant upon the Bill. Is he satisfied that any regulations on this subject will be subject to the affirmative procedure, and therefore open to hon. Members to debate?

Mr. Hammond

Regulations made in relation to this aspect of the Bill, and to the great majority of the Bill, will be subject to the negative procedure.[Interruption.] While I understand that my hon. Friend is quite naturally disappointed about that, I have to tell him that it gets worse.

In the next group of amendments, we shall be examining a subject on which significant material will be introduced by Ministers, not in the form of regulation subject to either the affirmative or the negative procedure, but in the form of documents that will not be subject to any form of parliamentary scrutiny. I hope that my hon. Friend will be in the Chamber for that debate, when he will be able to explore that issue a little more fully.

In Committee, concerns were raised about the powers that the National Care Standards Commission will have to obtain information from a registered person. The Bill does not appear to include any exclusion for information that a registered person is gathering in contemplation of an appeal against a decision to deregister under the procedures in the Bill. I raised that issue with the Minister who, to paraphrase his response, agreed that it would not be acceptable for the commission to seek to sequester the evidence that an individual intended to produce to an appeal tribunal merely because it would be expedient for the commission to do so. Of course it would always be expedient to have sight of an opponent's intended evidence in any proceedings.

The Minister made it clear that he did not contemplate such wide-ranging use of the power, but nothing in the Bill would prevent such action. Perhaps the Minister will prevent it through regulation, but I am certain that the hon. Member for Sutton and Cheam (Mr. Burstow) had such issues in mind when he framed his amendment. I am sure that he will wish to pursue the argument further, if he is fortunate enough to catch your eye, Mr. Deputy Speaker.

Amendment No. 96, tabled by myself, addresses clause 44, which deals with the power of entry of inspectors. The issue at stake depends on the interpretation of the term in the clause about premises which are used…by a local authority in its discharge of relevant functions. Relevant functions are defined as functions of fostering and adoption and the clause gives powers of entry to premises that are used in that connection. If that means a power of entry to the town hall to have a look in the filing cabinet, at any time of the day or night and without notice—although we might have practical issues to raise—nobody would have a problem in principle with inspectors inspecting the premises of a public authority to ensure that records are in order. However, the advice that we received before the Committee debate on the subject was that it is not clear from the Bill's wording that the term does not include the private dwelling house of a foster parent who fosters a child for the local authority. Fostering is a relevant function and the local authority is procuring the discharge of that function. It is at least arguable that the private dwelling house of the foster carer is a premises being used in the discharge of that relevant function. I return to the issue today because the Minister sought to deal with the concerns during the debate.

Dr. Peter Brand (Isle of Wight)

Does the hon. Gentleman believe that no powers of entry should be granted for the private dwellings of foster parents? Under existing arrangements and for the purpose of child protection, surely it is important that inspections can be made.

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Mr. Hammond

The hon. Gentleman is right. As he says, inspections can be made under existing legislation and will continue to be possible. If he will bear with me for a moment, I shall come to that point.

Let me quote from an exchange in Standing Committee. I said to the Minister: My reading of the Bill was that the reference in subsection (1)(b) to premises used by a local authority in the discharge of its relevant functions would include the private home of a foster carer, where a child is being fostered as part of the discharge of the local authority's functions. Will the Minister say whether that is correct? The Minister replied: Other amendments are coming up that will allow us to discuss that. There will be an opportunity for National Care Standards Commission inspectors to have access to the homes of private foster carers, because that is entirely appropriate. I then asked the Minister the same question again: Will the Minister answer my specific question? Does the reference in subsection (1)(b) to premises used by a local authority for the discharge of its relevant functions include a private home in which a child is fostered? The Minister answered My advice is that it does not include the private homes of foster carers.—[Official Report, Standing Committee G, 22 June 2000; c. 428–29.] I have got to know the Minister quite well during the progress of this Bill and others. When he prefaces a remark by saying, "My advice is", that suggests that he has just a little doubt in his own mind, as when he is quite clear about something he is usually robust in saying so. Apparently, there is something of a contradiction between those two statements. The Minister said that there would be an opportunity for National Care Standards Commission inspectors to have access, but clearly that opportunity will not occur under clause 44. We need to hear from the Minister where it is stated in the Bill that National Care Standards Commission inspectors will have access to the private dwellings of foster parents.

To answer the hon. Member for Isle of Wight (Dr. Brand), of course local authorities, as part of their contracting process, may require access to the private dwellings of foster carers. They may want to secure that access for National Care Standards Commission inspectors. I have no problem with that as it would be a contractual matter, and issues such as time of access and how much notice needs to be given could be agreed between the parties to the contract. That is quite distinct from a statutory power of entry.

The amendment seeks to clarify what I think the Minister told me in Committee—that a private dwelling is specifically excluded from the definition of premises used by a local authority in its discharge of relevant functions. We believe that there is an important distinction to be drawn between the domestic dwelling of a private individual and premises such as the offices of a local authority.

In addition, again referring to what the hon. Member for Isle of Wight said, there will still be powers of entry in certain circumstances—for example, to protect the safety of children under the Children Act 1989, although that power would probably not be exercisable by National Care Standards Commission staff. So, both through contracting and through the existing legislation for the protection of children, there would be access, but I am still baffled by the Minister's reference in Committee to the right of National Care Standards Commission inspectors to have access to private dwellings, and I look forward to some clarification on that point.

Amendment No. 3, in my name and that of my hon. Friend the Member for Meriden (Mrs. Spelman), deals with the inspection of independent acute health care provision. This matter considerably exercised my noble Friends and others when the Bill was being considered in another place. I cannot speak for my noble Friends and other noble Lords as to how they might proceed when the Bill returns to them stripped of the provisions that they inserted on inspection of the independent acute health care sector.

The Bill originally contained provisions that would have made the Commission for Health Improvement responsible for inspection, registration and regulation of the independent health care sector and the NHS. The Government have advanced some persuasive and largely pragmatic arguments why the commission would not be appropriate for the task. They said that it was designed with a different purpose in mind, and to work in the context of a managed service—the NHS—rather than in an independent system that requires arm's-length regulation.

The debates on the matter have caused much rethinking on the issue by hon. Members of all parties. However, it is clear that the Government oppose the use of the Commission for Health Improvement as a single regulatory body for both independent and NHS provision. When Conservative peers pressed for that, they were keen to draw attention to the advantages—a level playing field and a clear and even-handed regulatory system that would ensure that patients were treated in accordance with appropriate and properly policed standards. That would be the case wherever they were treated and whoever was paying for the treatment.

It is becoming increasingly ludicrous to distinguish between the private and NHS sectors. The Government have made clear their intention to use private-sector providers more regularly and widely in the provision of care to NHS patients. The Government tabled a new clause in Committee to allow cross-contracting between the Commission for Health Improvement and the National Care Standards Commission, to avoid the absurdity of double inspection, under which beds are inspected separately according to whether they contain NHS or private patients.

One anomaly remains, however. Many private beds remain in the NHS, and they will still be inspected by the Commission for Health Improvement, rather than by the National Care Standards Commission. The independent acute provision sector will be regulated and registered, but its largest competitor—the NHS pay beds service—will not.

Our preference would be for a single regulatory mechanism covering all sectors, but the Government will not countenance that. The independent sector and other observers have described the problems that they foresee, and we propose that two separate committees and directorates should be established in the National Care Standards Commission. Each would be led by a dedicated commissioner, who would be the figurehead responsible for, respectively, independent acute health care and for nursing and care homes. That recognition would give clear status to the importance of those two strands.

The commission is a multi-functional body. We are dealing with two areas in which, by definition and by circumstance, large elements of the total provision come from the independent sector.

Mr. Tim Collins (Westmorland and Lonsdale)

My hon. Friend makes a powerful case for amendment No. 3. Could he, for my benefit, and possibly that of other right hon. and hon. Members, clarify whether the commissioners who would have those specific tasks would be appointed by the Secretary of State or the chairman of the commission? Would they be appointed to the commission with a view to having a specific responsibility, and does my hon. Friend therefore envisage that people with a specific background would be appointed?

Mr. Hammond

I believe that the Bill provides that the Secretary of State will appoint the commissioners. Interestingly, amendment No. 32, tabled by Liberal Democrat Members, addresses my hon. Friend's point by suggesting that a member of the Commission for Health Improvement staff should be the deputy director of the independent health care directorate of the National Care Standards Commission. That issue is likely to be debated shortly.

Why is it necessary to establish a separate entity within the commission to address the needs and concerns of the independent acute health sector? A couple of general points have come to light, as well as a couple of specific points. First, which staff in the commission will carry out the inspections and the registration function? We believe, from what the Minister has told us, that many of them are carrying out inspection functions within health or local authorities, and will move across to the National Care Standards Commission.

In some areas—I emphasise "some"—there are historic tensions that do not bode well for a good working relationship. The old role of inspectors working within local or health authorities is different from the working relationships that the Government hope to inspire by this new model, in which people will work for an independent care standards commission. There is a concern in the independent sector that the same people will be wearing different hats—and probably earning higher salaries—after the move from one employer to another.

There are specific questions about the nature of inspection and the regulation of private hospitals. The term "independent hospitals" encompasses a wide range of entities. Sophisticated hospitals in central London and other large cities have sophisticated equipment, fully-fledged intensive care beds and the capability to carry out almost any procedure that can be done in the national health service. At the other end of the scale we have smaller, low-tech institutions. The smaller ones are often run by voluntary or charitable organisations; they may perform a general service to the community or to a particular group or community.

There is a wide range of competence and ambition between private hospitals. We must ensure that the regulation and inspection regime is sensitive to those differences, and that small hospitals seeking only to carry out relatively minor procedures are not rendered non-viable by a requirement to comply with regulations designed for hospitals that have loftier ambitions.

We agree with the industry that identifying a unit within the National Care Standards Commission that will address itself exclusively and specifically to these issues, will give a greater chance of achieving an appropriate, light-touch regime that will ensure proper delivery of consistent quality standards and proper compliance with appropriate levels of regulations without becoming oppressive. That is why we propose the establishment of the health care committee, and an associated commissioner.

I turn to the arguments for the nursing and care homes committee. In some cases, history does not offer much help when we consider working relationships in that sector. Local authorities have been providers of accommodation themselves, as well as purchasers of accommodation and services from the private sector and regulators of that sector. They have experienced considerable conflicts of interest, because they are asked to regulate homes that are in competition with those that they provide. There are many stories from many parts of the country about practices that we certainly should not accept. I know that the Minister would not accept them; that is, in large part, why the Government want to change the regime and to establish a level playing field.

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The Bill will separate the role of regulator from that of provider. For the first time, it will require local authorities that provide care home or nursing home accommodation to be regulated in the same way as their private sector competitors. We acknowledge that the establishment of that regime is an important element of the measure, and we welcome it.

People who are active in the sector are anxious about the fact that those with whom they have, with difficulty, built relationships on specific issues locally will arrive on their doorsteps as the inspectors for the National Care Standards Commission. Although everyone might be working on the new level playing field that the Government are creating, we all know that it is easier to change a title than to deal with deep-rooted, long-established personality differences that have grown up over a long time.

As the Minister acknowledged in Standing Committee, in some cases there will be real difficulties in ensuring that there are constructive working relationships between the commission inspectors and the providers of residential accommodation. Much confidence building and tender loving care will be needed to convince all the providers that the new regime genuinely represents a break with the past and with a system that many people feel is discredited. A dedicated commissioner and committee would send the right signals—a positive message to encourage all parties to build constructive relationships in the future.

The aims of the Liberal Democrats' amendment No. 32 are closely linked to those of amendment No. 3. An interesting twist in amendment No. 32 is that it provides for the appointment of a deputy chairman from the staff of the Commission for Health Improvement. I realise that the provision was designed to ensure that the committee includes a member with expertise in acute health care—indeed, that it is led from the top, or near the top, by such a person. That would address the fear expressed by those in the independent acute sector that their needs might be swamped by the broader responsibilities of the National Care Standards Commission for registering and regulating care homes. I anticipate that there will be certain practical problems with the Liberal Democrats' proposals, but I look forward to hearing the detailed reasoning for their approach to a problem that we have both identified. Their amendment deals with concerns that we share.

The Government have embarked on the creation of a level playing field for care home regulation and registration. In Committee they made a minor concession in relation to boarding schools, and made it clear that they did not want a distinction between independent and local authority schools. That was another step in the right direction, but we have come to a deeper philosophical divide in relation to acute hospitals.

The Under-Secretary, the hon. Member for Birmingham, Edgbaston (Ms Stuart), said openly in Committee that the Government were committed to the managed system of health care and to the Commission for Health Improvement, which has no power of deregistration. If it finds a problem in the national health service acute sector, all that it can do is report the problem to the management—which may be responsible for the problem in the first place. It will have to rely on the Secretary of State's powers for direction and central management of the national health service to try to deal with the problem. In the independent care sector, the National Care Standards Commission will have real teeth, because it will be able to deregister someone who is in breach of the standards or who has not behaved properly in any other way.

Our amendment and the Liberal Democrats' amendment seek to address the real concerns of the independent health care sector and to make the level playing field a reality. The amendments recognise that both sectors—the independent sector and the national health service—can learn from each other. There is not a monopoly of wisdom on either side, and no one thinks that there is.

The amendments will help to ensure—there is no guarantee—that independent sector providers are not saddled with inappropriate registration or inspection regimes, and that the many different functions of independent hospitals are properly recognised. The industry believes that there would be safety in having a dedicated commissioner, and amendment No. 3 seeks to provide for one. The Liberal Democrats have a similar aim in amendment No. 32.

In a letter to me dealing with outstanding matters from the Committee, the Minister described Government amendment No. 82 as a drafting amendment. However, as he said in his opening remarks, it addresses the question of how the National Care Standards Commission will operate. Will it mainly employ its own staff, or contract its functions out? In other words, will it follow the local authority or the Ofsted model? Will the initial position be enshrined in any way or may it change over time? Does the Minister envisage the position evolving once the initial cohort of staff, who will transfer from local authorities and health authorities, is replaced by other people? Members on both sides of the House will wish to explore that issue a little so that they can understand the significance of the change that the amendment will make to schedule 1.

This interesting and diverse group of amendments and new clauses will significantly improve the Bill—and I include the Government new clause and amendment in that description. I look forward to hearing in due course the Minister's answers to my questions.

Mr. Paul Burstow (Sutton and Cheam)

I look forward to the contribution of the hon. Member for Chatham and Aylesford (Mr. Shaw). The hon. Member for Runnymede and Weybridge (Mr. Hammond) said that he looked forward to the Minister's response in due course, and it remains to be seen how long, and how detailed, that turns out to be, as I know that some Members are minded to engage in a detailed dialogue on these matters.

The Government amendments are wholly welcome and useful additions to the Bill, and rightly respond to concerns that were raised by Members on both sides of the Committee. The hon. Member for Runnymede and Weybridge broadly welcomed amendment No. 31, which we tabled and to which my hon. Friend the Member for Isle of Wight (Dr. Brand) will speak in some detail. When he does so, we shall see whether the amendment involves the degree of paranoia that was suggested might underpin it. My hon. Friend and I wish to ensure that the Minister addresses concerns on that matter.

I wish to concentrate on amendment No. 32 and shall comment in passing on amendment No. 3, which was tabled by the hon. Member for Runnymede and Weybridge. Both amendments deal with the same issue, as the hon. Gentleman and I, as well as many other Members, are trying to find a route by which we can create a common architecture for establishing a sensible regime of standard setting across the health sector, regardless of whether services are public or independent. Our discussion is part of a long-running debate—indeed, I suspect that the Minister sometimes thinks that it has been running for far too long—which started with consideration of the Health Act 1999, when we had detailed discussion in Committee and on the Floor of the House about the role of the Commission for Health Improvement, and which continued with the progress of the Bill through all its stages in the Lords and in this place.

It has begun to feel a bit like trench warfare, as there are two clearly defined positions, one on whether it is possible to establish a common framework in which health care standards are set and assured and the other on whether we have to have two parallel or separate structures to do that. To be fair, the Government have moved quite a long way from the position originally taken by the right hon. Member for Holborn and St. Pancras (Mr. Dobson), the former Secretary of State. When the Select Committee on Health conducted an inquiry into the regulation and inspection of the private health care sector, the former Secretary of State responded to a question from my hon. Friend the Member for Isle of Wight by saying that it was not the role of Government to provide a stamp of approval for the private sector.

Clearly, things have moved on, and the Government recognise that there is a legitimate role for Government in providing a mechanism to give the public assurances and guarantees of standards wherever they receive health care. We welcome that movement, which has continued with the passage of the Bill through this place and the House of Lords. When the Bill was published, it was plain that the National Care Standards Commission would have a role in private health care, but that that would be clearly separate from the NHS. CHIMP was not to have a role in private health care because, as several Ministers said, CHIMP is a tailor-made institution, geared to dealing with the specific circumstances of the NHS, which is a managed service. By contrast, they said that private health care services needed to be brought into a regulatory framework. Somehow, those two things were completely different and could not be brought together in a single structure.

Since then, however, in the other place, a majority of their lordships decided that the Bill was defective and a clause was added which would have given CHIMP a specific role in providing, on behalf of the NCSC, inspection and registration of the independent sector. That new clause was subsequently removed in Committee, much to the regret of my hon. Friend the Member for Isle of Wight, myself and many people outside the House.

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We are particularly concerned that the Bill remains silent on the question of a duty of quality that will apply across the board, and not only to the NHS, in respect of which we have debated the rightful need for such a duty to exist. A similar, comparable standard should be applied to the private sector. The Government should now make further moves on that, and even if we cannot affect their actions in this debate, I hope that when the Bill returns to the other place, their lordships will closely examine our debates in Committee and on Report and give the Government an opportunity, by way of an amendment, to think again about how they can provide a consistent framework.

There is no difference between a medical intervention in the private sector and one in the NHS—how can there be? I do not understand how clinical governance can be relevant in the NHS but irrelevant in the private sector. We were told that clinical governance was irrelevant in the private sector because it was defined only in regulations and not in a Bill. Surely it is not beyond the wit of the Government to find a mechanism to provide such a definition so that there is clarity about what clinical governance means in the private sector. It should mean exactly the same as it does in the NHS.

The same applies to clinical management of patients. Surely that also requires common standards. That would be common sense, and we still do not understand why the Government are not prepared to put in place the mechanisms that will guarantee those common standards for everyone in this country.

As I said, the Government's case is that the NHS is a managed service, but the private sector is not and has to be regulated in some form. However, the NCSC will be regulating managed services provided by the public sector, such as boarding schools and colleges, and care homes run by local authorities. Why is it that those institutions, which are provided for and managed by the public sector, have to be regulated and inspected, but the NHS, which is also provided for and managed by the public sector, is not to be regulated and inspected in the same way? What is the difference? Is it simply that the Government are not prepared to trust local government in this respect? What is the difficulty that means that the Government want to twist the logic of the case for a seamless system and have a two-tier system instead?

The Minister has not explained that, and in Committee his colleagues did not adequately address that conundrum, which is at the heart of the Bill. Amendment No. 32, in my name and that of my hon. Friend the Member for Isle of Wight, is intended to provide a vehicle for debate about that and to give the Government a chance to reflect further on what mechanisms could be put in place to use the skills and resources that will be at the disposal of the Commission for Health Improvement to ensure that we are monitoring and driving up standards in the private sector.

The hon. Member for Runnymede and Weybridge did an admirable job of explaining the purpose of that amendment, so I will not say much more about it. I am grateful for his broad support. Amendment No. 3 in his name takes a similar approach in trying, albeit by a very different route, to provide a structure that would bring together the two sectors.

Ideally, the Commission for Health Improvement should be an arm of the NCSC. That would be logical and it would provide a better fit if we are to have a system that covers the independent sector and the public sector. When one considers that there are more than 200 hospitals in the private sector with more than 10,000 beds, and that last year, there were some 800,000 treatments in that sector, it makes no sense to exclude those treatments from a regime that guarantees standards. That is why we think that one regime with one set of standards and a common understanding of clinical governance would be far better than two separate regimes. In a sense, our amendment is about establishing a vehicle through the NCSC that will achieve that—albeit by dint of setting up a committee. Committees might not be the best vehicle, but they are a means of persuading the Government to consider the matter further.

If we have two separate regimes, as we will under the Bill as drafted, there is immense potential for grey areas to engulf the issues of who has responsibility for the inspection of services, where the line should be drawn between acute and chronic care, and which body has responsibility for the public and the private sector. What if an NHS patient is taken into the private independent sector? Does the inspection regime follow the patient, or does it depend on which bed they occupy when receiving treatment?

Mr. Hammond

Does the hon. Gentleman agree that the Government's introduction into the Bill of clause 7, which allows cross co-operation between the Commission for Health Improvement and the NCSC, averts some of the more bizarre possible outcomes while doing nothing to address the fundamental issue?

Mr. Burstow

I agree absolutely. The hon. Gentleman allows me to acknowledge that, to some extent, the Government have changed their mind and addressed the concerns raised by Opposition Members and Cross-Benchers in the Lords. It is right to establish a mechanism whereby cross-contracting can take place. However, we want to go further—hence our amendment and our argument that, instead of allowing the possibility of contracting to take place between the two agencies, the Government should recognise the necessity of doing so, or—better still—make CHIMP part of the NCSC.

Barring a miracle, it is unlikely that we shall be able to gather enough votes today to persuade the Government to accept either amendment No. 3 or amendment No. 32, but there is a possibility of our doing so in the other place. I hope that, when their lordships give the Bill further consideration, they will agree with Opposition Members that the matter is one that should not be left as it stands, with the Government amendments made in Committee, and that there is a long way to go before the public can be guaranteed common standards of care wherever they happen to be treated, whether in the independent health care sector or the NHS.

That is what the public now want. When told that there are to be two separate regimes governing the quality and standards of care that they receive, the public are horrified. They want guarantees, continuity and standards that can be assured throughout the health sector. That is what the amendment is designed to achieve. I hope that the Government will accept it, but, if they do not, we hope that the Lords will do more.

Mr. Jonathan Shaw (Chatham and Aylesford)

I welcome new clause 16. I hope that my hon. Friend the Minister of State will be able to advise me whether one of the matters that the commission may consider is private fostering. In Committee, I tabled an amendment requiring those individuals who carry out private fostering to be registered with the commission. I did so not only because of my personal experience, but because Sir William Utting referred to the matter in his report, as did former social services inspector Lord Laming during the Lords consideration of the Bill, and the social services inspectorate in 1994: all called for those who privately foster children to be regulated. However, because the arrangement is a private one, under the provisions of the Children Act 1989, such individuals merely have to notify the local authority that they are looking after children. Many eminent reports have stated that that does not meet the safeguards that we would want for particular children. We do not know how many children are privately fostered, often for a small amount of money. There will be far tighter regulations for day care, where children go home at some part of the day, than for children who may be with private foster carers for weeks, months or years.

My hon. Friend the Minister said that he took the matter seriously. He repeated the response of my noble Friend Lord Hunt of Kings Heath that the social services inspectorate was also be taking the matter seriously and would be requiring local authorities to have greater regard to the responsibility to ensure that private foster carers notify local authorities so that they can be inspected. It has been repeated that there will be a national publicity campaign to ensure that people are aware of their responsibilities.

Suppose that, following the national publicity campaign and the requirement on local authorities, the NCSC, perhaps in consultation with the social services inspectorate, was more rigorous in ascertaining how many children were in private foster care and whether they were being cared for to a standard that we would expect. Would the sharing of that information, if the NCSC raised concerns with my hon. Friend, lead him to introduce legislation of the sort suggested in my amendment, which has been recommended by distinguished Members of the other place who have long experience in these matters? Would my hon. Friend be able to make changes to the foster regulations under the Children Act 1989, or would he have to introduce primary legislation?

Mr. Eric Forth (Bromley and Chislehurst)

Those of us who did not have the honour and privilege of considering the Bill in Committee now have the chance to express our thoughts about the Bill, including the matters immediately before us. I make a preliminary observation. My heart sinks whenever I see a Bill like this one and whenever I hear the dialogue that has already taken place, which is a sort of throat clearing for the main business that is to come.

I am not surprised that we are already in something of a tangle with this group of amendments. I shall say a few words and ask a few questions about each one. We are in a world in which both the Government and the official Opposition claim repeatedly to be deregulatory, to believe in a free society and to wish to dismantle red tape and bureaucracy—I do not know whether the Liberal Democrats sign up to that—yet we are confronted with a Bill that will have precisely the opposite effect.

I accept that on Second Reading and in Committee, it was agreed that there was a need to adopt the approach that is set out in the Bill. I do not intend to challenge that for the moment. That is also a preliminary observation. It is no surprise to me, however, that Members then become hopelessly bogged down when considering the minutiae of what the bureaucracy that we are now setting up will do. One would have thought that its aims were clear enough, but what will it do in detail? The new clauses and amendments that have already been touched on illustrate well how one can set up a well-meaning bureaucracy, but get into difficulty in defining not necessarily its aims, which can usually be pretty well defined, but the way in which the aims will be fulfilled.

5.15 pm

New clause 16 is pretty opaque to say the least, certainly to the layman coming to it for the first time. On the face of it, it should be relatively straightforward. It refers to section 48, but if one goes to clause 48 for guidance and clarity, one is surprised to see that it refers to section 23. Clause 23(1) states: The appropriate Minister may prepare and publish statements of national minimum standards applicable to establishments or agencies. That is clear enough. Subsection (2) states: The appropriate Minister shall keep the standards set out in the statements under review and may publish amended statements. Subsection (3) states that the appropriate Minister shall consult any persons he considers appropriate. The Minister will undoubtedly be able to help us later, but given that the Minister shall keep the standards…under review and shall consult any persons he considers appropriate— not our old friend may, but shall, which is strong and prescriptive—I should have thought that, without any doubt, that means that the Minister will involve the commission in the review of national minimum standards.

Yet new clause 16 states: The Commission may at any time give advice to the Secretary of State on…any changes which the Commission thinks should be made. I shall come in a moment to consider the commission's terms of reference—to look, as it were, through the other end of the telescope—but any reasonable person would be satisfied that, given clauses 48 and 23, the Minister would be most unlikely to discharge those elements of his responsibilities without fully taking the commission's views into account.

Therefore, because of the obligation that I am assuming, the first question that arises is whether new clause 16 is otiose. The Minister may tell me later that I am wrong in that presumption, but, for the moment, I think that a reasonable person would want to take that view.

Mr. Hammond

My right hon. Friend may not yet have had a chance to look ahead to new clause 4 in the next group of amendments, but, if he does, he will see that it puts precisely that obligation on the Secretary of State, before bringing forward any new standards under what will be a replacement for clause 23—that he must consult and seek certain information from the commission.

Mr. Forth

I am grateful to my hon. Friend for that. I am a slow reader, so I have not quite reached that point yet. I shall want to look at it and listen to what he says at the appropriate time.

I am even more puzzled because in clause 7, entitled "General duties of the Commission", subsection (5) states: The Commission may at any time give advice to the Secretary of State on—

  1. (a) any changes which the Commission thinks should be made…and
  2. (b) any other matter connected.
I should have thought that that gives an extraordinarily wide—almost certainly rightly wide—remit to the commission to give advice to the Secretary of State. Yet new clause 16 seems to be in the business of gilding lilies, saying: The Commission may at any time give advice…under section 48. We need some clarification. I fear—this is my suspicion about this group of amendments, as I suspect it will be about the next group when I catch up with the reading that my hon. Friend has set me—that when we get into this, we will begin to see that we are wading not just knee deep, but waist deep in a mass of verbiage which, if we are not careful, will obscure the objectives, with which everyone appears to agree, of the new bureaucracy.

That is, of course, the danger. Bureaucracies are bad enough as they are, and rarely achieve the ends that are set. Goodness knows, one can point to any number of examples in other walks of life where there are bureaucracies, commissions and regulatory regimes that hopelessly fail to fulfil their task. One hopes that that will not be the case with the Bill, but I, for one, do not set out with any great optimism.

My problem with new clause 16 is that I cannot for the life of me see how it adds materially and usefully to the wording in the Bill.

In Government amendment No. 53, we are in the "exceptional circumstances" business. The amendment refers to the publication of material and whether that should be done routinely. Again, I accept that the Minister tried to be helpful in his brief explanation. I can understand that he may want to move things along, as Ministers often do, but our job is not to move on until we are satisfied.

We must consider what the words suggested in the amendment add materially to the Bill. I confess that I am somewhat mystified. The original words are: The report of the person who held the inquiry shall, unless the Minister who caused the inquiry to be held considers that it would be inappropriate to publish it, be published in a manner which that Minister considers appropriate. I accept what the Minister said—there is a presumption of publication. In the new world of open government, that is as it should be. However, the Bill already states that if the Minister considers publication inappropriate, the report will not be published. According to the amendment, the report will be published unless there are exceptional circumstances. For the life of me, I can see no material difference.

Of course, I am not remotely querying the sagacity of the selection of the matter for debate—far from it—but there is an onus on the Minister, who is suggesting a different form of words, to explain to us more fully why he concluded that the original wording in his own Bill was not satisfactory for the purpose that he stated, and why the new words are a material improvement. That, after all, is why we are considering the matter.

I thought that the original words were perfectly fit for the purpose. Obviously, I do not want to digress or delay the House unnecessarily, but we could get into a debate about that. The Minister gave us one or two examples of possible exceptional circumstances. We do not need to get bogged down in that, but we may want to know to what extent the Minister thinks that the power, in the existing words or the Government amendment, is likely to be invoked.

The Minister wanted to reassure us that that would rarely happen but, as we all know, the good intentions set out at this stage in the proceedings to make us feel warm and comfortable about something often do not stand up in the cold, harsh light of the real world, when the matters on the statute book are tested in practice.

Amendment No. 31, which was tabled by the Liberal Democrats, rather puzzled me. I got the impression that the amendment was designed to restrict the powers in the Bill, and I was not sure why that was necessary. The present wording is fairly general— considers it necessary or expedient to have for the purposes of its functions under this Part. The important question is whether adding "of regulation and inspection" strengthens, clarifies or limits it.

Mr. Burstow

It does.

Mr. Forth

In typical Liberal Democrat fashion, the hon. Gentleman says, "it does" when I have asked three different questions. Perhaps he would like to pick one of the three and help me.

Dr. Brand

Wait and see.

Mr. Forth

The hon. Gentleman is reluctant to help, but his hon. Friend tells us to wait. I am really excited now. We have had a hidden Liberal promise of clarification to come. I shall contain myself for now, exercising patience in the expectation that the hon. Member for Isle of Wight (Dr. Brand) will regale us later with a much fuller explanation of what the amendment is all about. I shall restrict myself merely to posing my questions now, but if the hon. Gentleman does not keep his promise, I shall find some way to punish him. He can only guess right now at what my means may be, but they may become obvious as the night wears on.

That brings us neatly and satisfactorily to amendment No. 96, which is much more interesting and with which my hon. Friend the Member for Runnymede and Weybridge (Mr. Hammond) dealt very ably. More and more as we consider Bills, we debate the necessity and wisdom of giving powers of entry and investigation to authorities and bodies, and the extent to which we wish to make those powers general or to restrict them.

I can see what my hon. Friend's amendment is driving at: he wants to restrict to genuine local authority premises powers that could be extremely wide and intrusive, and he wants to ensure that private dwelling houses are not covered. I confess that I wonder whether that would inhibit the legitimate purposes of the Bill and the bureaucracy. I am caught in a dilemma on this point: I have explained my reservations about bureaucracies, regulatory powers and powers of entry, but I must, reluctantly, accept that once the House has accepted the general purpose of a Bill, we can only ask whether it will be effective.

There is a slight risk—I put it no higher—that amendment No. 96 could, in some circumstances, inhibit or restrict the proposed powers. I can imagine circumstances in which something happens in the private house of a foster parent about which we may have legitimate concern. Given the relationship between foster parents, local authorities and the proposed bureaucracy, we can query how far the Bill's powers should be restricted or left broad.

Mr. Ian Bruce (South Dorset)


Mr. Hammond


Mr. Forth

My hon. Friend the Member for Runnymede and Weybridge can help me because he proposed the amendment.

Mr. Hammond

I recognise my right hon. Friend's concern, but there are two points at issue. First, powers exist, particularly under the Children Act 1989, to allow entry in order to protect a child at risk. Secondly, we must make sure that our sanctions and intrusions are proportional to what we seek to do. I believe that my amendment has the balance right.

Mr. Forth

I am grateful. If my hon. Friend cannot envisage circumstances in which his amendment would prevent the proper discharge of the duties in clause 44, I must be satisfied.

Mr. Hammond

I should make it clear that the Minister has already told the Standing Committee that in the Government's view, there is no power of entry to a private dwelling house under this part of the Bill. The amendment would simply make the Bill clear, which, in my submission, supported by my right hon. Friend's interpretation, it is not at present.

5.30 pm
Mr. Forth

That is helpful. Of course my hon. Friend has just shown the disadvantage that those of us who did not serve on the Standing Committee have in such matters. I will not be tempted to dilate on Pepper v. Hart; he is not trying to do so. If the Minister has put that on the record in Committee, that may be good enough. Of course I accept what my hon. Friend says; he wants only to put such matters beyond doubt—even beyond the Minister's words, which are on record. The Minister has already said that that is an appropriate matter and I am grateful to my hon. Friend for that clarification.

Mr. Bruce

I, too, did not serve on the Standing Committee. Indeed, I had not read clause 44 until warming up for the debate, but I have read the Regulation of Investigatory Powers Bill, which will restrict law enforcement officers and all sorts of other people from entering a private dwelling or whatever. It strikes me that, without amendment, the Bill could directly contradict another Government measure that is being considered in the House of Lords. Will my right hon. Friend comment on that extraordinary situation?

Mr. Forth

My hon. Friend may think it extraordinary, but I am not sure that I do. He characteristically gives the Government the benefit of the doubt in assuming that they are consistent. I have never believed that and, in his perspicacious way, he shows that the Government are all over the place.

Mr. Bruce

That is putting it mildly.

Mr. Forth

Yes, it is. Perhaps my hon. Friend would like to develop that point in his own way; I do not want to encroach on his territory.

I shall move on swiftly to amendments Nos. 3, tabled by my hon. Friends, and 32, tabled by the Liberal Democrats, by which they seek to pre-empt or prescribe the way in which the commission will discharge its responsibilities. That is an important issue. We should carefully consider whether it is beneficial for the House to prescribe how the commission will work, even in the way in which my hon. Friends suggest.

Amendment No. 3 states: The commission shall establish…an independent Healthcare Committee…a Nursing and Care Homes Committee…a Directorate of Independent Health Care…a Directorate of Nursing and Care Homes… The Secretary of State may by regulations define the respective responsibilities… That seems to go a bit far, even for enthusiasts of bureaucracy. Either we have reasonable confidence about how the commission will discharge its duties, or we do not. Even at this late stage, my hon. Friends want to state in detail how the commission will be structured and how it will carry out its responsibilities. I make no apology for taking them to task, but they even want to state that there should be an Independent Healthcare Committee chaired by a Commissioner who shall have specific responsibility for the Commission's functions in respect of independent hospitals… I yield to none in my admiration of my hon. Friends' perspicacity and foresight, but for them to suggest that they can envisage, with such clarity, how the commission should function and discharge its duties seems to go a tad far, and I therefore remain to be convinced.

Mr. Simon Burns (West Chelmsford)

I want to press my right hon. Friend on that matter. I fully appreciate the point that he makes, but we shall have only one stab at the Bill. Can he foresee how the law could be changed if such a provision were not included and the experience of the system working in practice suggested that what my hon. Friend the Member for Runnymede and Weybridge (Mr. Hammond) proposes in amendment No. 3 was needed?

Mr. Forth

In an attempt to justify the wording of amendment No. 3, my hon. Friend gives the game away completely. He has reminded the House, as I was about to, that it is difficult, though not impossible, to alter or remove a proposal once it has been included in a Bill. That is my worry.

By my reading, if we do not use either the wording suggested by my hon. Friends or that suggested by the Liberal Democrats, the commission will be free—within the broad terms of its remit and, if necessary, under guidance from the Secretary of State, which is also in the Bill as a longstop or failsafe—to structure itself as it sees fit and to set up such sub-committees as it sees fit. That will provide the flexibility to enable it better to react to changes in circumstances. As my hon. Friend the Member for West Chelmsford (Mr. Burns) points out, if a well-meaning form of words is included, it will be there for ever, or at least until a future Government get round to trying to change it. Were the Government to be re-elected, we know that their legislative programme would be so full that the chance of changing the wording would be zero.

Mrs. Jacqui Lait (Beckenham)

I have huge sympathy with what my right hon. Friend says, but will he bear in mind that the Bill already provides for a children's rights director who, although not a commissioner, is specifically referred to? That is frightfully politically correct, and I accept his reaction to that, but does he accept that independent health care and social and nursing care, to which my hon. Friend the Member for Runnymede and Weybridge (Mr. Hammond) refers in amendment No. 3, are the two areas in which the Government find the greatest anathema in respect of providing care across the spectrum? Therefore, specifying that a commissioner is responsible for those areas will make it palpably clear that the person appointed will be put under the spotlight to ensure that the commission's powers are exercised truly impartially.

Mr. Forth

I am grateful to my hon. Friend and neighbour, who has given as elegant an explanation of amendment No. 3 as one could expect. I can of course see the force of what she says, but again my reservation is that circumstances can change rapidly, as we know, and sometimes to our cost. My worry is that committing ourselves to such a degree of detail at this stage would also commit the commission and create the danger of rendering it relatively inflexible when flexibility is of the essence. I still have my reservations, in spite of the valiant effort to persuade me.

Mr. Bercow

Will my right hon. Friend give way?

Mr. Forth

Yes, I shall let my hon. Friend have a go.

Mr. Bercow

I understand my right hon. Friend's objection to, and general concern about, the excessive rigidity or specificity, but is there not another concern, which I would usually expect him to express? Unless there is some codification in the Bill, the danger is that unamended Henry VIII clauses will allow a usurpation of a power, to which he would usually object.

Mr. Forth

Of course I accept what my hon. Friend says, but my assumption is that the Secretary of State will soon be a Conservative Secretary of State. Therefore, what my hon. Friends have in mind and what my hon. Friend the Member for Beckenham (Mrs. Lait) suggested a moment ago could be achieved elegantly and amply under the existing wording. I know that none of my hon. Friends assumes or even expects the Government to be re-elected, so there is no need to put a defensive and protective provision in the Bill and set it in concrete.

However, my hon. Friend the Member for Buckingham (Mr. Bercow) has made an important point, as usual, and, as always, we are in a dilemma as to whether we, as legislators, believe in a general power for a Secretary of State, with the flexibility that goes with it, or think it preferable to include ever more detail in legislation—perhaps to restrict the opportunities for a Secretary of State to intervene. There are more than sufficient powers for the Secretary of State in the Bill. Henry VIII is wandering through the Bill, and this attempt to pre-empt or restrict that probably will not succeed. I remain to be convinced by the amendments, although I will listen to the many different views that will be expressed over the next hour or two.

Amendment No. 82 may be the most interesting and worrying of the amendments and proposes something with which we have become familiar—the powers of delegation. It says: An authority may make arrangements with persons under which they, or members of their staff, may perform functions of members of the staff and of the authority. I will not repeat my earlier argument but I am not sure how this adds to the original wording.

Such provisions always lead to wider issues, as we have seen in other Bills. How far does the Minister believe the proposal will go? Could there be restrictions on the persons with whom arrangements are made and to whom delegation is given? Either we take a fairly restrictive view or there will be a flexible arrangement. The Minister must assure us that the exercise of powers under the amendment would be limited and restricted and that a guarantee or safety mechanism will be available so that there is no danger of delegation to persons who are not fully qualified.

If the authorities find themselves under pressure to fulfil their responsibilities, there may be a risk of delegating to the wrong people, and we will be right back at the difficulties with which the Bill is trying to deal. The present wording—even with the imprimatur of the Minister and the Secretary of State—worries me. I might have been reassured if it had said "appropriately qualified persons" or "persons with appropriate references". However, the current wording appears to leave the matter loose and over-flexible.

Mr. Hammond

Does my right hon. Friend conclude that those persons to whom the powers are delegated will have all the powers of entry that inspectors have under the Bill?

Mr. Forth

That must be a suspicion. Some wide powers may devolve, worryingly. to unspecified persons. It is not good enough for the Minister to say that flexibility is needed and that provision must be made for other people to be brought in. In this of all matters—given all the sensitivities that surround it, and all the history behind it—if we are to legislate properly, and provide the reassurances and guarantees that are required, we must have a form of words that gives us more reassurance than we have now.

5.45 pm
Mr. Bercow

As the devolution of responsibility may entail contracts with outsiders, can we at least be reassured by the Minister—in so far as he feels able to attend to the debate—that such arrangements will be undertaken only after a process of competitive tendering? Or will this take place simply on the basis of the old pals act?

Mr. Forth

I hope that others are listening, although the Minister patently is not. Perhaps he will be appropriately advised at the appropriate time, although it may take quite a bit longer than he thinks if he carries on in the same way. I may have to repeat everything when I think he is listening to me, and I doubt that he would want that.

My hon. Friend the Member for Buckingham has raised an interesting point. The mechanism whereby the delegation is to be achieved is unspecified. The wording gives no hint or clue about the connection between the delegating authority and those to whom the important powers may be delegated—including potentially, as my hon. Friend the Member for Runnymede and Weybridge (Mr. Hammond) pointed out a moment ago, powers of entry, inspection or whatever.

We are completely in the dark about who the people concerned may be, what guarantees or reassurances we may have about them, their relationship—contractual or otherwise—with the authority, and the extent to which the authority may have sought appropriate reassurances in terms of qualifications or references. We know none of that, and the wording gives no clues. I fear that amendment No. 82 poses at least the danger—I put it no higher than that: not the likelihood, but the possibility—that a risk of some kind could emerge. That, as I understand it, is exactly what the whole Bill is intended to avoid.

The new clause and Government amendments illustrate all too well the dangers that we encounter when we embark on the route of bureaucracies, regulations, regulatory powers, regulatory mechanisms and the like. No matter how well justified such measures may appear on the face of it, we can readily see those dangers just from this first canter around the course. For we have not yet reached the meat of the Bill: although we are discussing important matters, there is much more to come. Already, in scratching the surface in a rather superficial way, we have dug up all sorts of difficulties. The Minister could not reassure us, and—if I may say so—even my hon. Friend the Member for Runnymede and Weybridge, in his much clearer and more concise speech, was unable to answer all the questions that, in my modest and very brief way, I have tried to pose.

Mr. Bercow

Will my right hon. Friend give way?

Mr. Forth

I will give way once more, but I am trying to conclude my speech.

Mr. Bercow

I am exceptionally grateful to my right hon. Friend for his characteristic generosity. I am sorry to interrupt his flow, but I wonder whether he can answer a question. Speaking to amendment No. 32, the hon. Member for Sutton and Cheam (Mr. Burstow) argued that the regulations that he advocated should be subject to the negative or the affirmative procedure. The capacity to debate the regulations, however, is surely of the essence.

Mr. Forth

It is to my hon. Friend and me, but I do not recall the hon. Member for Sutton and Cheam (Mr. Burstow) saying as much. I do not think that the Liberal Democrats are all that bothered about parliamentary scrutiny, or about negative or affirmative resolutions. They are not here very often, and when they are they seem to be in the Government's pocket. My hon. Friend and I pay close attention to such matters, but I do not think that we can look to the Liberal Democrats to help us, now or in the future.

All in all, an awful lot more will have to be said about the new clause and some of the amendments before I am satisfied. Although the Minister did not listen to some of what I said—I cannot imagine why—I know that, having been properly advised, he will be able to give full and comprehensive answers to my points and those made by others. We shall have to make our judgment on the basis of those answers when—somewhat later, I suspect—we vote on the new clause and amendments. The position is certainly not self-evident to me.

Dr. Brand

This is the first time that I have had the privilege of following the right hon. Member for Bromley and Chislehurst (Mr. Forth) and it is a curious experience. At the outset of his contribution, he declared himself as a legislative nihilist—he does not believe in regulation and clearly feels that the safety of vulnerable people should be left either to the marketplace or to self-regulation. He then talked about having more powers for the Secretary of State without making them explicit in the Bill, and turned that argument round and said that the Bill was not explicit enough, so I find that confusing.

The right hon. Gentleman made a threat, which I did not find alarming; I was not surprised at his comment. It was not even an implied threat. It was that we might all be punished tonight by some means not yet declared if we did not toe the line. I am not aware that activities in the Chamber are designed to indulge either masochist or sadistic tendencies. I am sure that we will get many contributions from the right hon. Gentleman. If he would let me know how long he is going to take, we can rest while he makes them.

I address my main remarks to amendment No. 31, which deals with clause 31. There is a concern that we do not give the commission undue powers. Clause 31 says that the registration authority can require—presumably, it is a statutory requirement—to have information made available if it is "necessary or expedient". I can see that it may be expedient for a registration authority to ask for all sorts of information, but I am also aware that red tape is a major imposition, especially for small businesses, and that information does not come free. It takes time and resources. Incidentally, it also takes time and resources to analyse it once it has been obtained. It is clear from the rest of the Bill and from some of the earlier comments that the commission will have a role over and beyond registration and inspection.

It is right that the commission should have statutory powers to require information to be made available where it is dealing with the safety of the public. Therefore, in relation to its registration and inspection function, it is totally appropriate that anyone running an establishment described under the Bill should be made to provide information when it is requested, but I have an anxiety that that statutory requirement might be extended, because it is convenient and expedient for the registration authority, to other areas such as the giving of strategic advice to the Minister on how many beds might be needed in 10 years, and what the industry's intentions are on retirement and non-retirement.

Those are important issues. Clearly, consultation with the industry is important, but it should be consultation on equal terms, rather than a requirement by law. It is a simple amendment. I hope that the Minister will take it on board. It in no way diminishes the powers of the registration authority in its primary function: the protection of the public.

I touch on the other amendments in the group, notably Nos. 3 and 32. My hon. Friend the Member for Sutton and Cheam (Mr. Burstow) Sutton has squared the circle in relation to regulation and inspection of acute and chronic services in the private and public sectors. In my clinical practice, I sometimes find it difficult to decide in which of the four categories a particular patient is in the course of treatment or the course of a disease. The permutations are quite large. It would be helpful if we had a common regulation and inspection regime.

To have the Commission for Health Improvement as the specialist hospital arm, the specialist medical arm, of a national commission makes extraordinary sense. It would still allow the Government to have their own machinery to advise them, but it would also create a healthy, slightly arm's-length relationship, between the Secretary of State in his managerial function with regard to the national health service and the Secretary of State in his regulatory role through the Commission for Health Improvement. I urge the Government to look at that as a way of still accepting that the NHS is different from the private sector, but overcoming their dogmatic doubts about a common way of dealing with the problem.

As usual—it is the usual phrase that we used in Committee—I look forward to the Minister's response. I hope that he will give us some confidence on small matters, but that he will consider the real nub of the argument, which is the safety and quality of standards for all people needing medical, nursing or caring services, irrespective of who provides it and where it is provided.

Mrs. Lait

Before I contribute to the debate on the Bill for the first time, I should like to put on record the fact that before I entered the House in 1992, the National Care Homes Association was a client of my lobbying business, but that subsequently, I have had no remunerative interest in the association at all. However, my husband is the leader of the Conservatives on East Sussex county council, and of course, all social service issues are a responsibility of county councils. For a brief period, he was chairman of the social services committee, and tried hard to persuade the county council to get rid of its substandard care homes. The Lib-Lab pact managed to defeat that, but the objective still remains.

By putting those two things on the record, I hope that I have not only clarified my position, but made it clear that I have some knowledge of many of the areas that we are talking about. Indeed, I have long advocated the establishment of some form of national standards and care structure for the social care and nursing care sectors. Therefore, in principle, I do not have a difficulty with the structure of the Bill as it has emerged from the various stages of its consideration.

It may cheer the heart of my right hon. Friend and neighbour the Member for Bromley and Chislehurst (Mr. Forth) that one of the most overbearing parts of the private sector care standards regime is being totally repealed by the Bill. The repeals list shows that the Registered Homes Act 1984 and the Registered Homes (Amendment) Act 1991 will both be repealed in total, so one form of bureaucracy—a very hard and overbearing bureaucracy—will disappear.

I hope that my right hon. Friend—I see him nodding—will appreciate that occasionally, legislation can lead to the death of bureaucracy, as well as—as is happening in this case—the creation of further bureaucracy. It is the concerns about the further bureaucracy that I shall take up, as will many of my right hon. and hon. Friends.

Government new clause 16 is about the advice to Ministers on fostering and adoption. I think that we have established the fact that the advice and how it is implemented will be covered by regulations, which will be taken under the negative resolution procedure. Most Conservative Members find that somewhat concerning, because that procedure makes debate so difficult. However, what concerns me even more is the lack of any assurance that before regulations are promulgated, those who will be affected by them will be consulted. That concern is reinforced by the fact that publication of the commission's advice will not be mandatory.

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It is therefore possible, even for one who is not a conspiracy theorist, to envisage a situation remarkably similar to one with which many care homes are already familiar—the sudden introduction of an entirely new fostering and adoption regulatory regime, without any notification to those affected by the new regime.

Mr. Bercow

I think that my hon. Friend is right to say that the Government have opted for the negative procedure. However, we have to know the reason for Ministers' knee-jerk reaction and preference. Is it because they do not think that we should be allowed to debate such regulations? Is it because they cannot trouble themselves to have such a debate? Or is it because we do not have sufficient time? The last explanation would be quite unsatisfactory to many hon. Members, who would be more than happy to attend a morning sitting of the House to debate the regulations, based on the authoritative advice that has been tendered to Ministers.

Mrs. Lait

I entirely agree with my hon. Friend, who makes some sane and sensible points. I also think that use of the negative resolution procedure is always very sinister. I am simply seeking assurances from the Minister that there will be proper consultation on regulations, and that the commission's advice will be published.

The commission is a public body, funded by taxpayers. Therefore, it has a responsibility to taxpayers and the public to make public precisely what it is suggesting to Ministers. It is crucial that Ministers reassure us today that, one way or another, there will be proper scrutiny of proposals affecting fostering and adoption—both of which are so fraught with emotion and so important to people's futures. Very many bodies are involved in the subject, and they need to be consulted.

As all hon. Members know from their surgeries, rumour and innuendo get around, and out of small acorns grow very large oaks. Rumour and innuendo can threaten an entire system. Therefore, correct information has to be placed in the public domain at the right time.

Government amendment No. 53 deals with the publication of reports. Although I am not a lawyer, I absolutely accept the difficulty of the libel issue and of the possible consequences of prosecutions. It may come as no surprise to my hon. Friends to hear that I was the Parliamentary Private Secretary to the current Leader of the Opposition when he was Secretary of State for Wales, and the Welsh Office was debating whether he should establish the inquiry into the Welsh children's homes. We grappled at length with the issues of libel and prosecutions. However, my right hon. Friend had the guts and the courage to establish that inquiry, and to take on the chin the possibility of difficulties arising from subsequent legal action.

If my right hon. Friend had the courage to do that, I cannot see for one minute why the Government cannot give us assurances today, or even write something into the Bill. They could abandon their amendment, so that reports of concern to the public were published. As I said, if the relevant information is not made public, rumour and innuendo will spread and the situation will get completely out of hand. I would not like to see any Government on the back foot in addressing issues that are so important to so many people.

The Liberal Democrats' amendment No. 31 deals with the National Care Standards Commission. I have some difficulty with the idea of enabling the commission to trawl for information, in a fishing expedition. Such an ability was one of the reasons why the local government inspection system was regarded with fear and trepidation within the private care home sector. In that system—not in all cases, but in a sufficient number of cases to concern the industry—inspectors essentially had that power.

I hope that in considering the information that it wants and needs from people, the commission will take into account the long history of difficulties between inspectors and the private care sector. To give those inspectors their due, the badly run businesses have now gone out of business. The commission will therefore usually be dealing with well-run businesses. The businesses that have survived—it has been a tough world for them—have done so because they are good businesses. Therefore, although there is no need to provide the power to undertake fishing expeditions, there is that history, and such a power is not beyond the bounds of possibility.

I share the concerns expressed by my hon. Friend the Member for Runnymede and Weybridge (Mr. Hammond) about the potential impact of amendment No. 31. Of course we very much hope that the horrors that we are envisaging do not materialise.

Mr. Burstow

The import of the hon. Lady's argument seemed to be that she was broadly supporting amendment No. 31—which is about preventing the very fishing exercises that she has been concerned about. Can she say whether she supports the amendment?

Mrs. Lait

I apologise to the hon. Gentleman; he is absolutely right. I am more likely to be supporting him than the Government on this particular issue.

I share the concerns expressed in the official Opposition's amendment No. 96, not only because I am a great believer that an Englishman's home is his castle. I am surprised that I am the first hon. Member to use that cliché in this debate, because it is such an obvious one in discussing the amendment. Like many other hon. Members, I know people who have given a lot of their life, time, love, affection and emotion to fostering children. As I am sure all hon. Members will know, many of those children are very difficult and complex characters who have deep-seated needs that foster parents have to deal with.

Consequently, over the years, in any well-run fostering regime, a body of law has developed that allows access to a foster parent's private home, either by agreement or—when potential child abuse is involved—by instant access. I am sure that many hon. Members will have had constituency cases involving neighbourhood conflicts and difficulties in which, on the flimsiest pretext, although the children themselves have often been difficult, neighbours have taken a dislike to each other and called in social workers and police. In those circumstances, foster carers' homes have easily been accessed by those who wanted or needed access.

Therefore, on the basis of what we know happens in practice and what is often dealt with in statute, I do not know why the Government cannot reassure people by including in the Bill an exception ensuring that private homes are not covered by the Bill's provisions on rules of entry.

It may be that legislation cannot impose a negative, but I do not believe that the clever people who draft legislation cannot come up with a form of words to reassure people who foster difficult children that, although their homes will continue to be accessed by social workers and police, as is required by statute, the Bill will not impose further requirements so that any misuse of its provisions presents a further barrier to people volunteering to foster difficult children who need loving homes.

Hon. Members may have gathered that I support amendment No. 3 because I have concerns about the text of the Bill. When I first reached the conclusion that a national organisation would help the care home industry to provide better care, I was very clear in my own mind that the National Care Standards Commission would need to appoint people who represented and had thorough knowledge of the industry. The proposal for separate commissioners for the independent health care sector and for nursing and social care, with separate directorates, would meet that requirement and would go slightly further than the Bill does in respect of the children's rights director.

Many of us who have some knowledge of the residential and nursing home sectors realise that it is not easy to consider them as indivisible. A nursing home provides nursing care. The demands and requirements on a nursing home are different from those on a residential home, which is a place where people live as independently as possible. They require totally different skills that require different training, although residential care homes for elderly people provide an element of nursing care. However, if a properly run rest home has people who need nursing care there is usually someone on the staff to provide that care and it is usually the sort of care that a district nurse can provide. If somebody is too ill for that, their medical condition will dictate where they are looked after—[Interruption.] I heard someone say, "nonsense" and I would be most interested in the reason for that remark.

Dr. Brand

Over the past 15 years there has been a dramatic shift in dependency from nursing homes to residential homes and it is not unusual to have people in residential homes who might previously have been in nursing homes, certainly towards the end of their lives. I would not want people to be forcibly moved from what has been their home when they become terminally ill.

Mrs. Lait

I am not entirely certain that the hon. Gentleman and I are a million miles apart on this. If someone were terminally ill and living in a residential home, as that would be regarded as their home, they would get the same care that would be provided in their own home.

Dr. Brand

Does the hon. Lady accept that a great many people who live in their own homes have a nursing dependency as great as people in nursing homes under hospital at home schemes and the like? The differentiation is not as clear as the hon. Lady implies.

Mrs. Lait

The hon. Gentleman and I could have a long dialogue on this, although you would probably call us to order if we did, Mr. Deputy Speaker. As I said, I do not think that the hon. Gentleman and I desperately disagree about this matter. However, the bulk of people in rest homes are not there—or should not be there—because of nursing requirements. That is part of the argument for national care standards and for removing the involvement of local social services in placement into rest homes. As I said earlier, I have long believed in that.

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The amendments seek to ensure that two sectors in which the private sector has taken a strong interest—well-run private hospitals and nursing and rest homes—should receive the consideration that they require from the commission.

I see that my right hon. Friend the Member for Bromley and Chislehurst has returned to the Chamber. Let me pick up his point about what should happen to the commission when we win the next election. I suggest that it would be helpful to have people with the right skills on the commission, and a directorate with specialist skills in the independent health sector and nursing and social care so that those two sectors get the attention that they require to ensure that they provide the highest care standards of which we would all approve.

Another reason why I support the proposal for a social and nursing care commissioner was mentioned by my hon. Friend the Member for Runnymede and Weybridge in relation to inspectors. We probably expect that most local authority inspectors will move over to the commissions under the Transfer of Undertakings (Protection of Employment) Regulations 1981, if for no other reason. I sincerely seek assurances that the inspectors will receive the necessary training to act in an even-handed way. As I said earlier, a number of local authority rest homes are not up to the standards that are required in the private sector. Under the 1984 Act and subsequent legislation, inspectors have no statutory remit to close local authority homes. However, good inspectors in some local authorities—there are some—made sure that some of the local authority homes were aware of their responsibilities. However, we cannot—the private sector would find it difficult to live with this—send in inspectors who are still of the old school and are not prepared to be completely impartial.

Let me briefly draw a parallel with Ofsted, which was mentioned earlier. Ofsted hires teachers and trains them to be inspectors. Unless the system has changed recently, once inspectors are trained Ofsted does not have the ability to decide whether they are good enough to do the job. Once somebody has been trained they automatically become an Ofsted inspector even if they are not suited to the job. I would not like the same loophole to exist in respect of commission inspectors. Once somebody has been trained, a decision will have to be made as to whether that person meets the required standards. The mere fact that somebody has been trained does not mean that they have attained the necessary standards.

Mr. Bercow

I am sorry to interrupt my hon. Friend as she develops her argument, but is she referring to in-service training or to some other training?

Mrs. Lait

I made the analogy with Ofsted because everyone wishing to become a school inspector has to go through the training that Ofsted offers. However, all trainees become school inspectors after the training, regardless of the extent to which they fit Ofsted's requirements. I do not want the same system to be brought in for the commission.

Finally, I have gained a little understanding of how what I have learned to call "CHI" works. A team from the health service is put together and sent to inspect a hospital. It usually consists of a medical director, a nursing director and a chief executive or member of senior management. Those people may be crucial to another hospital, but they are taken away from running their own hospital for at least a week. Given the state of the NHS and the number of hospitals needing inspection, will not the removal of such personnel for inspection purposes place an intolerable burden on all hospitals?

Dr. Brand


Mrs. Lait

The hon. Gentleman may say that that is rubbish, but perhaps he will tell me why. A hospital trust could be in trouble if even the smallest crisis emerged while its medical director was away for a week on inspection duties. We all know how long patients have to wait in accident and emergency departments in most hospitals, and how litigious they are these days, with hospitals often being challenged and asked to pay compensation. Taking key managers away from an understaffed and hugely pressurised health service is not the best way to ensure that our health service improves.

Dr. Brand

I cannot follow the hon. Lady's argument. Is she really suggesting that inspections, by Ofsted, the Commission for Health Improvement or any other body, should be carried out by people who are not involved with the service that they are inspecting? I understand what she says about pressure being placed on services, but that can be solved by adjusting staffing levels. I assure her that the NHS carries out a great many inspections, and that about a tenth of consultants' time is spent on them. That is quite apart from their educational role.

Mrs. Lait

The hon. Gentleman is a GP and has a direct interest in how the NHS works. He probably knows how much inspection is carried out. I am merely pointing out, however, that the commission represents yet another layer of inspection. It will take people away from their real hospital work for a week, and then reports will have to be written. Taking out that level of management skill is not the best way in which to run the hospital service, let alone the NHS.

The hon. Member for Isle of Wight will agree that the NHS faces huge staffing difficulties. Imposing an extra burden is not the best way forward.

Mr. Burstow

Is the hon. Lady aware that a Liberal Democrat amendment tabled in the House of Lords secured cross-party support and gave effect to the principle that the commission would have a role in inspecting provision in the private and public sectors? The Government removed that amendment, against the opposition of my hon. Friend the Member for Isle of Wight (Dr. Brand) and the hon. Member for Runnymede and Weybridge (Mr. Hammond).

Mrs. Lait

The hon. Gentleman and I differ in our view of what the commission is doing at present.

Mr. Hammond

I thank my hon. Friend for allowing me to intervene and put in context what the hon. Member for Sutton and Cheam (Mr. Burstow) just said. I said earlier that my interpretation was that the Lords were trying to promote the desirability of a single regulatory system for both sectors. That was the essence of the debate in the other place.

Mrs. Lait

I would have no difficulty with a single regime for inspection. I am interested in the practical application of the commission's operation, given the difficulty in finding enough people of the right calibre to staff the NHS. We must not forget that the basic job of the service is to make people get well, and to prevent some from falling ill in the first place.

Mine is a practical objection rather than an objection in principle. No matter how much money the Government throw at the health service, it will not improve all that much in the near future. The Bill will not help those hospitals that desperately need proper inspection—nor will it ensure that the independent health care sector does not provide a distraction.

I have spoken for longer than I planned. These diverse amendments set the tone for the matters in the Bill that need to be considered and that concern me deeply, and the debate on them is therefore worth while.

Mr. Ian Bruce

I did not intend to speak to these amendments, but my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth) mentioned amendment No. 96, and thereby brought to my attention a specific problem.

Clauses 44(3)(b) and 45(3) set out the powers that allow the inspection of documents or other material, including computers. They contravene clauses 47 and 48 of the Regulation of Investigatory Powers Bill, which deals with all aspects of surveillance. Schedule 2 of that Bill sets out which people can issue a warrant allowing someone to inspect computers.

I believe that amendment No. 96, which would protect foster parents from such an inspection, should be more widely drawn. The Minister should know that any evidence obtained under this Bill without a warrant under the Regulation of Investigatory Powers Bill would be specifically excluded, by that Bill, from any legal proceedings. A proper investigation could be made that would then be ruled out of order because of the Regulation of Investigatory Powers Bill. I am no fan of that Bill, which I believe to be very flawed. It is extraordinary that the Department of Health and the Home Office should both introduce Bills in the same Session covering the investigation of what is on a computer in someone's premises whose provisions are in complete contravention of each other. My hon. Friend's amendment is very helpful in this respect.

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Mrs. Lait

My hon. Friend might like to bear in mind the conflicts with the Data Protection Commissioner as to what information is protected, and the demands of the National Audit Office, particularly in the health sector.

Mr. Bruce

I am grateful to my hon. Friend. Right-minded people might think that the Regulation of Investigatory Powers Bill is a sensible measure that can be used to investigate child abuse, for example. Police officers who go into premises to investigate could think from having looked at the Care Standards Bill that they are authorised to get the records from the computer, print them out—perhaps even getting the key for encrypted data. They then think, "The case is all there in black and white." However, the defence lawyer, who is always paid more than the prosecuting lawyer, says, "The Regulation of Investigatory Powers Bill specifically excludes you from looking at these data, and if you have looked at them, a clause in the Bill says that you cannot use them in a court of law."

I hope that the Minister understands that I am not filibustering—this point hit me between the eyes instantly. I know that Department of Health Ministers have an awful lot to do—they cannot know what is going on in the Home Office. Frankly, somebody in the Government— I thought that this was supposed to be joined-up Government, after all—should have understood the problem.

I hope that the Government will at least accept the amendment that would protect foster parents. I declare an interest, because my wife and I were short-term foster carers many years ago. I would not like to think that because we had volunteered to do that, our premises could be entered in the course of an investigation.

From looking at the Bill, it seems that someone's home is available to be entered. The Minister may say that it does not mean that. Even so, a police officer could enter a person's home and be told, "You can't come in," but if he showed them the Bill, the person would read it and say, "Obviously you do have the power." The individual is hardly likely to read Hansard and contact a lawyer for advice: he would instead assume that those powers were in the Bill.

Mr. Bercow

I shall certainly study Hansard tomorrow. Can my hon. Friend explain what wording in the Bill leads him to believe that there could be a laissez-faire approach to entry?

Mr. Bruce

My hon. Friend just needs to read clause 44, which says: the registration authority may at any time require a local authority to provide it with any information relating to the discharge by the local authority of relevant functions which the registration authority considers it necessary or expedient to have for the purposes of its functions under this Part… The clause continues: a person authorised to do so by the registration authority— although such a person is not authorised by the Regulation of Investigatory Powers Bill because the registration authority is not one of the named bodies— may at any time enter and inspect premises which are used, or which he has reasonable cause to believe to be used, by a local authority in its discharge of relevant functions. What happens is that local authorities approach foster carers to foster a child. The Government have quite rightly said that they will do their best to close down as many children's homes as possible and to put children into foster care or have them adopted, because that is best. If the only avenue that a local authority has when it comes to placing children is a private foster home or adoptive parents, those must be the premises referred to in the Bill. The Minister tries to reassure us that the words in the Bill, which are as plain as a pikestaff, do not mean that, but I am afraid that he is misdirecting both himself and us.

Mr. Bercow

I am grateful to my hon. Friend, who has duly alarmed me by pointing to the relevant provisions of clause 44. On the basis of his 13 years' experience in the House, will my hon. Friend confirm that it is commonplace, when discussing rights of entry for officers or other persons on public authority duty, for clauses to refer to "reasonable force"? However, as far as I am aware—my hon. Friend will disabuse me if I am mistaken—there is no reference in these provisions even to reasonable force, which opens up a worrying spectre of what might be entailed.

Mr. Bruce

Certainly, there are no such words in the Bill. Let us assume that a police officer is called because an inspection authority officer is battering the door down. The person living there says that his premises are being invaded by the officer, who says that under the Bill he is authorised to enter and that, as he has been stopped, he is battering the door down. Nothing in the Bill says that there should be an individual at the premises—it is not about requiring people to allow entry to the premises, but about entry to the premises.

Mr. Hammond

It might help my hon. Friend to know that I explored this avenue with the Minister in Committee, and the hon. Gentleman confirmed that there will be no power to force an entry under these provisions.

Mr. Bruce

I am grateful to know that the Minister and my hon. Friend the Member for Runnymede and Weybridge (Mr. Hammond) both know that. It is a pity that it is not made clear in the Bill.

Mr. Hutton

You caught me by surprise by calling me, Mr. Deputy Speaker. I thought that we were in for a couple more hours of debate on these amendments.

There is a small but substantial problem with amendment No. 31, in the name of the hon. Member for Sutton and Cheam (Mr. Burstow). We used to say in Committee—I am sure that the hon. Gentleman will not mind if I say it again today—that his amendments were largely unnecessary or technically deficient. Sadly, amendment No. 31 is both unnecessary and technically deficient, which is a first for his party on the Bill.

I should like to reassure the House that the registration authority will require individuals to provide only information that is needed for its regulatory work. Clause 31(1) states that it may require only information that it considers necessary or expedient to have for the purposes of its functions under this Part. Part II is concerned only with the commission's regulatory functions. It will therefore not be able to ask for anything that is not necessary for fulfilling those functions under this part of the Bill. That is the purpose of the hon. Gentleman's amendment, and I can assure him that that is already how the Bill is constructed.

Obviously, the commission will sometimes need to require a wide range of information from persons carrying on or managing an establishment or agency. I think that all right hon. and hon. Members will understand the common sense of that. The information will vary, according to the stage at which the service is being scrutinised. Inspectors will not have the powers to go on general fishing expeditions, however, if that is what the hon. Gentleman is concerned about. Nor will they have the power to require providers to give information that may be of general interest for statistical purposes, for instance. They might be able to request such information, and providers will, I hope, be happy to accommodate those requests, in the knowledge that national information of this kind can be useful to all concerned. However, such requests will not come with the force of clause 31.

Mr. Bercow

I am extremely grateful to the Minister for giving way on that point. He says that the commission will not go on general fishing expeditions, and I accept his word. However, can I take it from what he has said that somebody seeking entry to conduct an inspection would subsequently, if there were a dispute, be obliged to prove that he or she had grounds for belief at the time?

Mr. Hutton

That must be the case. The powers under the Bill can be exercised only if the conditions of the Bill have been complied with. If there is any argument about that, the appropriate place to hold it might well be the court; it is precisely the type of issue that could be tested by lawyers before a judge. We do not propose any provision that would give the NCSC unique powers to act above and beyond the law—of course not. The hon. Gentleman is correct; no such situation could possibly arise.

Amendment No. 96, tabled by the hon. Member for Runnymede and Weybridge (Mr. Hammond), concerns the commission's powers to inspect premises under part III. In Committee, the hon. Gentleman rightly pointed out that that power to inspect applies to premises used by a local authority in the discharge of its functions. He asked me to look into the matter. Having taken further advice, I am satisfied that the power does not apply to individual foster homes, and we certainly have no intention that it should be used in that way. I agree that it would not be appropriate for the commission to exercise powers of entry to foster carers' homes in the same way that such powers would relate to local authority premises.

The hon. Gentleman's interpretation of the wording is that it would include powers to inspect individual foster homes, but I can assure him that that is not our reading of the provision. The private homes of foster carers are not under the control of local authorities, so it would not be sensible to treat them as though they were premises used by local authorities. We cannot consider that the amendment is either justified or necessary.

As I said in Committee, we expect that, in inspecting fostering services, the commission inspectors will need to speak to foster carers, and to satisfy themselves that the standards required of fostering services are being properly met through the foster carers approved by the authority. We all want assurance about that. That will mean that, sometimes, commission inspectors will need to visit foster carers in their homes, but the commission will not need general powers of entry to a foster home.

As I explained in Committee, we intend to tackle the matter by setting out a requirement—perhaps through the foster placement regulations under the Children Acts—for approved foster carers to co-operate with the commission inspectors when they are carrying out their functions. That will be reinforced by individual foster placement agreements that will set out what might be required for co-operation with the work of the commission. That approach will not give the NCSC a general power to enter foster homes, backed up by an offence of obstructing inspectors. That would be too heavy handed.

Mrs. Lait

By giving those powers to the commission inspectors, will the Minister do away with other regulations that give other people power of entry to a foster home?

Mr. Hutton

I assure the hon. Lady that we are not doing that. The Bill makes clear which provisions will and will not be amended. For example, we are not changing the powers of local authority officers in relation to their child protection functions; nor are we changing the powers of a police constable in the exercise of such functions. As the hon. Lady herself pointed out, it is important to retain measures to ensure that children placed in foster homes by local authorities are properly protected should there be any risk to their health or well-being.

Mrs. Lait

I am grateful to the hon. Gentleman for giving way again. Will he make it absolutely clear that the measure would give further rights to strangers to inspect a foster home and that foster carers would have to face additional bureaucracy?

Mr. Hutton

With great respect to the hon. Lady, I think that she has completely misunderstood the point. I have made it quite clear that NCSC inspectors would not have a power of entry to private foster homes. I tried to make that clear. Under the Bill, there will be no general power given to NCSC inspectors to enter private foster homes.

It is not the foster carer who will be regulated by the National Care Standards Commission, but the local authority or independent fostering agency. That is where the powers of the commission will rightly be directed.

Mr. Ian Bruce

By now, the Minister's officials will have had a chance to examine the Regulation of Investigatory Powers Bill. That measure makes clear the circumstances in which people can obtain information—especially from computers and other forms of investigation and surveillance. The Care Standards Bill is clearly in contravention of that measure. Will he address that point?

Mr. Hutton

I am pretty sure that it is not in contravention. I may have to qualify my comment later in our proceedings, but I think that the reason that this Bill does not contravene the provisions of the RIP Bill can be seen in clause 44, in which the hon. Gentleman was extremely interested. Clause 44 gives the NCSC the power to require the local authority to provide information. That does not involve the issues raised by the hon. Gentleman in relation to the RIP Bill. We are not inspecting computers. The clause requires the regulated provider—in this case, the local authority—in relation to part III, to require information to be produced to the local authority under the powers of the Bill.

If the hon. Gentleman will be patient, I think that the best way to deal with that point would be for me to give him a fuller explanation at a later stage of our proceedings.

Mr. Bruce

The hon. Gentleman contradicts his own Bill. Clause 44(3)(b) states that the powers include in relation to records which are kept by means of a computer, power to require the records to be produced in a form in which they are legible and can be taken away. That is exactly what is dealt with in the RIP Bill. The requirements for obtaining such information are set out in that measure and they are not complied with in the Care Standards Bill.

6.45 pm
Mr. Hutton

With respect to the hon. Gentleman, I am quite sure that he is wrong. Later in our proceedings, I will find some way to satisfy him on that point.

Amendments Nos. 3 and 32 are similar in that they require the commission to establish statutory committees to deal with specific aspects of its responsibilities. Amendment No. 32 was tabled by the hon. Member for Sutton and Cheam. I share the hon. Gentleman's wish to ensure that private and voluntary health care is regulated effectively by the NCSC.

The Government's commitment to do so has, in our view, been amply demonstrated by the requirement that we introduced on Report in another place a power for the commission to appoint a director of private and voluntary health care, and to fund and head a health care division in the commission, whose functions will be prescribed in regulations. The independent health care sector has broadly welcomed those measures.

Measures that we have introduced provide the necessary assurance as to the importance that the commission will attach to its responsibilities for regulating independent health care. The hon. Gentleman's amendment would require the commission to have, in addition, a separate and statutory health care committee. That is where our views differ. The hon. Gentleman's approach, which is mirrored by that of the hon. Member for Runnymede and Weybridge, is over-bureaucratic. The benefits of his proposed solution are not clear. It would duplicate the work of the private health care division.

The amendment raises questions about the relationship between the Commission for Health Improvement and the NCSC in its role of regulating private health care. That is one of the issues that we have returned to throughout the passage of the Bill in both Houses. I accept that the relationship is important. The two bodies will between them have responsibility for standards throughout all the health care services provided in this country. They will have important common interests and shared experience.

We have repeatedly spelt out the arguments—although perhaps not to the satisfaction of the hon. Member for Sutton and Cheam—and have pointed out that the role of CHIMP in the NHS is not the same as that of a statutory regulator in the private and voluntary health care sector. CHIMP has been designed to work within the context of a publicly managed national health service, which is ultimately accountable to the House through the actions of my right hon. Friend the Secretary of State. CHIMP fits into a range of levers, incentives and controls—all under the overall management of my right hon. Friend.

Independent hospitals and clinics, on the other hand, are private businesses; they do not operate in a publicly managed system and are not under the control of the Government. If an NHS organisation is failing, it is the Government's job to do something about it. That is a responsibility and a burden that we take seriously. If necessary, the Secretary of State can intervene directly in the management of the NHS body, including, at the extreme, removing an entire trust board.

Amendment No. 32 would introduce a rather clumsy mechanism to try to involve CHIMP in the management of the NCSC. I do not think that it would be practical. It would establish a wholly superfluous layer of administration that would not be able to do anything that could not already be accomplished by the National Care Standards Commission under the proposals that we have made. I ask the House to reject it.

Amendment No. 3, which was tabled by the hon. Member for Runnymede and Weybridge, proposes a statutory committee to deal with independent health care, and I do not think that I need to repeat my comments on that subject. It also proposes a further statutory committee within the commission to deal with nursing and care homes, plus a statutory director of nursing and care homes and a separate division for dealing with those services.

On a technical level, the amendment obviously leaves itself open to criticism. For instance, are care homes really to be dealt with totally separately from domiciliary care agencies? We all recognise that people being cared for today in residential settings may in future be equally well cared for in their own homes, but the amendment would run the risk of creating a new Berlin wall between those services in the way they are dealt with in the commission.

Although I cannot accept the hon. Gentleman's amendment, it may help if I say a little about how external interests, including regulated providers, will be able to work with the commission to feed in their views and to engage generally in dialogue with the commission. The hon. Member for Beckenham (Mrs. Lait) raised that concern.

Mr. Bercow

Given that we are waiting with bated breath and beads of sweat upon our brows, will the Minister please share with us the contents of the yellow piece of paper that the Secretary of State for Health has just passed to him?

Mr. Hutton

I do not think that the hon. Gentleman would like that; the piece of paper might be about him. He might not like what he has invited me to say. Therefore, I will not read it out. However, as I said earlier, I shall come to the points that the hon. Member for South Dorset (Mr. Bruce) raised when we come to the appropriate point in the Bill.

The commission, as a regulator, will obviously from time to time find itself in dispute with providers. From her experience, the hon. Member for Beckenham will be aware of such cases. However the commission's purposes will not be best served if it does not also engage in constructive and open discussion with service providers so as to allow feedback and proper suggestions from them and to work together to encourage improvement.

We certainly intend that there should be mechanisms in place to ensure that such discussion is an on-going feature of the commission's work. We expect arrangements to be in place at a local level to allow for such partnership working and for arrangements to be put in place at a national level for a dialogue to be established between the new National Care Standards Commission and care home providers' organisations and interests. I said in Committee that the relationship between the commission and care home providers will be central to making the arrangements work in practice and I want that relationship to be characterised by professional respect and a clear mutual understanding of each's responsibilities and respective roles. I am sure that the commission will want, once it is established, to develop that relationship with care home providers from all sectors—public, private and voluntary. That will be critical to ensuring that the arrangements work in future.

I hope that the hon. Members for Beckenham and for Runnymede and Weybridge are reassured that the commission will be open for business with regulated providers and others who have a stake in the work that it will do. If the hon. Gentleman's amendment is designed to ensure that care providers have a point of contact with the commission—that was partly his point—I think that we can make sure that that is available without having to set out the rigid structures that he suggested.

If, on the other hand, the hon. Gentleman really thinks that Parliament should be setting down in primary legislation exactly how the management structures of the Commission will be arranged, I will probably have to disappoint him, because I cannot agree that that is a sensible thing for the House to do. If he decides to press his amendment, I shall urge my hon. Friends to vote against.

My hon. Friend the Member for Chatham and Aylesford (Mr. Shaw) raised a point that is of concern to him and to my hon. Friend the Member for Lancaster and Wyre (Mr. Dawson). My hon. Friend the Member for Chatham and Aylesford referred to the efficiency and efficacy of the arrangements that supervise private foster care arrangements. I remind him of what I said in Committee. We share with him a concern for the proper administration of the existing regulations. We took the view, and we have stuck to it, that the regulatory framework is robust enough to deal with issues of abuse and concern about the welfare of children who have been privately fostered.

My hon. Friend asked me specifically whether I would be prepared to revisit the regulations about private care arrangements, and I say to him that I am prepared to re-examine them to satisfy myself once again that they are in the right shape to meet the concerns that he raised. I go further than that: if he and my hon. Friend the Member for Lancaster and Wyre wish to talk to me about how, in particular, they want the regulations to be improved, I am happy to have that conversation.

To some extent, the amendments tabled by the hon. Members for Sutton and Cheam and for Runnymede and Weybridge are a rehash of previous arguments. We have been through the arguments about the right relationship between CHIMP and the National Care Standards Commission extensively in this House, the Committee and in another place. I think that the hon. Member for Runnymede and Weybridge welcomed clause 9—the hon. Member for Sutton and Cheam certainly did—and it will allow the two important new bodies to work closely and effectively together. We should get on with the job, get the organisations up and running and, in doing that, better serve the public interest.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

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