Lords Sitting of 10 January 2000

Preamble
Reassembling after the Christmas Recess, the House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Derby.

  Pet Travel Pilot Scheme
  Lord Hoyleasked Her Majesty's Government:
  When they expect to start the pet travel pilot scheme.
  The Minister of State, Ministry of Agriculture, Fisheries and Food (Baroness Hayman): My Lords, the pilot pet travel scheme will start on 28th February. From that date pet cats and dogs meeting the conditions of the scheme will be able to enter or reenter the United Kingdom without the need to go into quarantine.
  Lord Hoyle: My Lords, I thank my noble friend for that helpful reply. However, what is being done to make European vets, particularly French vets, aware of MAFF requirements? Will she consider launching a campaign so that British pet owners who take their pets abroad are aware that their pets must have treatment for ticks and ringworm before they re-enter Britain? Further, will my noble friend consider changing the 48-hour to 24-hour period in which this has to be carried out, to one of 24 hours only, so that it can be done at the point of re-entry? That would be far easier for people who are en route from a holiday resort. Instead of asking applicants to fill in a form to state that in the past six months their pets have not been in countries other than those participating in the scheme, will my noble friend consider making that part of the conditions for obtaining pet passports?
  Baroness Hayman: My Lords, my noble friend asks me a number of detailed questions on this matter which are important as the success of the scheme depends on our getting the detail right. I reassure my noble friend that the Chief Veterinary Officer has been in touch with colleagues across continental Europe about the requirements for the scheme. Good progress is being made with vets in western Europe on providing the necessary certification, and that, of course, is important for families with pets who are returning to this country. We shall launch a publicity campaign so that pet owners in this country who plan to travel abroad with their pets are aware of all the requirements of the scheme. It is in no one's interests for people to turn up with animals which are not eligible for the scheme. We shall launch what I hope will be a high profile and effective campaign directly at pet owners, but also through travel agents and vets.
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  The issue of "ticks and tapes" is a difficult one. These diseases can be dangerous for human beings and cause fatalities on the Continent each year. We do not want to import these diseases into this country when they are not endemic here. I recognise the concerns which exist as regards the difficulties of the 24- to 48-hour "window". We shall certainly look at that in terms of assessing the pilot scheme. I refer to the advice that we have at the moment from the expert committee in this regard. As regards the form and country of residence, that is the way we have arranged matters at the moment, but the whole aim of having the pilot is to address any difficulties before the main scheme is introduced next year.
  Lord Strabolgi: My Lords, remembering that pets from non-participating countries will still have to go into quarantine, where the conditions often leave much to be desired, have the Government done anything about instituting a closer system of inspection for these kennels?
  Baroness Hayman: My Lords, there has been concern expressed on occasion about standards within quarantine kennels. Certainly the ministry does, and will continue to, take action when concerns arise about animal welfare being endangered in those circumstances.
  Lord Soulsby of Swaffham Prior: My Lords, does the Minister agree that many people in this country are happy about the early introduction of the pilot scheme? Does the Minister recognise that a number of non-governmental organisations have been helpful in introducing the scheme, despite its various imperfections? I hope I may mention Passports for Pets which has been an effective organisation in this regard. If the pilot scheme is effective, will the Minister consider at an early opportunity the situation as regards the importation of animals from the United States and Canada?
  Baroness Hayman: My Lords, I echo the comments made by the noble Lord, Lord Soulsby. A number of organisations have not only been effective campaigners but now communicate well with pet owners to inform them of the detail of the scheme and what has to be done. Passports for Pets has been a particularly effective organisation in both areas and will continue to be relied upon to provide information to its members and other pet owners. We shall want to consider a number of issues in the longer term to determine whether it is possible to extend the scheme. As the noble Lord is aware, the position with regard to the United States of America was considered by Kennedy who recommended not implementing the scheme there. We shall conduct a further risk analysis next year when the main scheme comes into force.
  Lord Hardy of Wath: My Lords, can my noble friend assure the House and the country that, where rabies is

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  endemic and veterinary services leave much to be desired, there will be no possibility of a view being taken which would allow rabies to re-enter Britain?
  Baroness Hayman: My Lords, throughout the way in which we have framed the current pilot scheme and the long-term scheme the protection of public health has been uppermost in the Government's mind. That has to have the utmost priority. Equally, it has been recognised that science has moved on. Microchipping, vaccination and blood testing, coupled with the enormous efforts to stop endemic rabies in much of western Europe, mean that it is safe to implement this alternative scheme.
  Lord Swinfen: My Lords, does the certificate taken with the pet have to be issued abroad or can the preparatory treatment and the issue of the certificate take place in this country? That would be of particular use to those who need guide dogs and who have to go abroad for a day's business.
  Baroness Hayman: My Lords, if the noble is Lord is referring to the certificates in relation to rabies, microchipping and vaccination, they can certainly be issued in the country from which an animal is originally travelling. If a family is taking an animal on holiday with them, they would get the certificates in regard to its rabies-free status and its vaccination status here. If, for example, a service family is returning from Germany, they would get the relevant certificates there. The certificate or proof of treatment against "ticks and tapes" would normally be obtained at the end of a holiday or at the end of a period of stay abroad. In special circumstances—for example, where someone uses an assistance dog to go on a day trip—it will be possible to obtain that certificate here.
  Baroness Byford: My Lords, will pets coming in through Heathrow airport, for example, be subject to a different system from the current one? I understand that currently the pet is booked on the same flight as its owner and that if, for any reason, there is not enough space the pet has to wait and travel on the next incoming flight. Is that included in this trial scheme? What is the position with regard to pets being booked on and travelling on the same flight if they are not going into quarantine?
  Baroness Hayman: My Lords, I am glad to say that dealing with the booking of pets will not be on my shoulders. We will be looking at the operating regimes that the individual transport operators are currently submitting to the Ministry. We must ensure that they fulfil the requirements of the scheme in terms of allowing appropriate checks for the animals concerned. That is the Government's most important responsibility. There will be a certain amount of consumer pressure about how individual operators choose to transport animals. As I understand it, at the moment the airlines that are thinking about participating are considering having animals and their
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  owners on the same flight. However, ultimately, that has to be an operating decision for the companies and their customers rather than for the Government.

  Benefits: Payment through Post Office
  2.45 p.m.
  Lord Ezraasked Her Majesty's Government:
  What would be the effect on the Post Office and its network of the ending of the payment of benefits through the Post Office.
  The Minister for Science, Department of Trade and Industry (Lord Sainsbury of Turville): My Lords, there will be no change to existing methods of benefit payment before 2003 when the migration from order books and giro cheques to payment by automated credit transfer will commence. In the meantime, the automation of the post office counters network, due for completion by the spring of 2001, will enable the Post Office to extend its arrangements with the high street banks to offer a range of banking facilities at post offices. This will mean that benefit recipients who wish to access their benefits in cash at post offices will continue to be able to do so, both before and after the changeover, while post offices will be able to offer more services to all bank customers.
  Lord Ezra: My Lords, I thank the Minister for that Answer, but does he agree that the first effect of this policy has been to push the Post Office into the red for the first time in more than 20 years? It has had to write off some £570 million expended on the Horizon computer system, which was originally devised to improve the payment of benefits and which is now no longer required for that purpose. Secondly, does the Minister also agree that approximately 8,000 post offices—getting on for half of the total—will have 40 per cent of their revenues eliminated as a result of this policy and that this will seriously jeopardise their future existence? Does not the Minister accept that it has been a little unwise to introduce such far-ranging changes and reductions in revenue for the Post Office at a time when it faces more intense competition than ever before?
  Lord Sainsbury of Turville: My Lords, the loss to the Post Office is due entirely to what is, in effect, an accounting provision which has made it write off this very large sum of money. At the moment, the underlying profitability of the Post Office is extremely sound and it appears that it should remain so in the future. We have adjusted the external financial requirement and the profit target to take account of the fact that the Post Office will be paying for this project from gilts and assets held on its balance sheet. We should not think that the Post Office is in any financial difficulty at the moment. The change will not take place until 2003—it is not taking place at the moment—which is an extremely sensible timeframe for doing this. It is very difficult to calculate the exact impact on individual post offices. People have the right

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  now to move to the ACT system and will presumably continue to do so. To calculate the exact financial impact we shall have to know what payments will be made by the Benefits Agency and the post office counters network to post offices, both in these circumstances an I the new ones. The timeframe is a good one. It should not push people into immediate difficulties.
  Lord Islwyn: My Lords, does the Minister acknowledge that, up and down the country, there are many thousands of elderly people who do not have bank accounts? In turn, they regularly go to their local sub-post offices to draw their pensions and other benefits, to chat to friends and perhaps to seek a bit of advice. Can the Minister give an assurance that our Labour Government will do nothing to curtail this very reasonable practice?
  Lord Sainsbury of Turville: My Lords, let me make it clear that, even with the new system, in the future recipients of benefits will be able to go to a post office to get cash in exactly the same way as they do at the moment. What we are talking about here is a systems change that will introduce an automated accounting system to the transaction and will ease the migration out of order books. It will still enable people to go to the post office to get cash in the same way as they have in the past.
  Lord Elton: My Lords, is the noble Lord aware that the fact that something is to happen in three years' time does not make it any the less worrying? Is he further aware that the worry of many of us is that the last focal point in many rural communities will be extinguished if the average village post office ceases to be profitable, as suggested in the supplementary question of the noble Lord, Lord Ezra? Can the noble Lord tell the House whether the Government will look at the Post Office not only as a business—as was made clear in the first part of his Answer—pbut also at individual village post office counters as a matter of social importance and therefore political sensitivity?
  Lord Sainsbury of Turville: My Lords, the Government are totally committed to the idea of maintaining a nationwide network of post offices. We are acutely aware that they play an enormously important role in the lives of the elderly and the less mobile. That is why the Prime Minister has asked the performance and innovation unit in the Cabinet Office to carry out an urgent study on the post office network to assess its contribution to the vitality of local communities, how it fits in with the objectives of the Government and what future objectives we should have for it. In the meantime, a great deal of action is being taken to help with the financial viability of individual post offices, including the introduction of the new pay system that gives postmasters fixed payments. Furthermore, we are working in conjunction with VIRSA to produce a leaflet which explains how local communities can support their local post offices. Lastly, action has been taken on rates so that very small post offices
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  need only pay 50 per cent. These actions have been taken because the Government are well aware of the importance of the post office network within local communities.
  Lord Peston: My Lords, does my noble friend accept that we have no better example of the failure of the free market than the behaviour of the commercial banks? They seem either to provide seven or eight branches of different banks in the same locality or no branches whatsoever. Can my noble friend reassure noble Lords by stating that the Government support the view that, particularly in small rural communities, the Post Office should provide a basic banking service—which it is well set up to do—essentially for the purpose of cash transfer? That would deal with an area of business that the commercial banks are nowadays anxious to be rid of.
  Lord Sainsbury of Turville: My Lords, for most people a credit account of that sort should not attract any charges. As the Secretary of State has made clear, we certainly wish to ensure that those on income support get the full amount of money they are entitled to from their benefits and that no deductions are made from those. That point has been actively considered in terms of setting up an appropriate service.
  The Attorney-General (Lord Williams of Mostyn): My Lords, we have entered the 18th minute and I know that the noble Baroness has tabled an extremely important Question.

  Rights of Way: Horse-drawn Vehicles
  2.54 p.m.
  Baroness Trumpingtonasked Her Majesty's Government:
  Whether, in order to permit the harness horse equality with the ridden horse on public rights of way, they will rectify the anomaly in the Department of the Environment, Transport and the Regions' consultation paper, Improving Rights of Way in England and Wales, which puts horse-drawn vehicles into the same category as the motorised vehicle.
  Baroness Farrington of Ribbleton: My Lords, we have given careful consideration to the responses to Improving Rights of Way in England and Wales, including the noble Baroness's proposal that we should distinguish between the rights of horse-drawn vehicles and those of motorised vehicles when using different classes of highway. We shall take those points into account when we introduce new legislation soon.
  Baroness Trumpington: My Lords, I am very fond of the Minister, but does she realise that, although she has tried her best, 15,000 harness horse drivers will be disappointed that they have not been able to receive a more formal response to my Question? Does she further realise that on this matter they have the

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  support of ramblers, GLEAM and the British Horse Society? Lastly, does the noble Baroness agree that it is vitally important to keep horse-drawn vehicles off our congested roads as much as possible?
  Baroness Farrington of Ribbleton: My Lords, I am deeply sorry to have disappointed the noble Baroness, Lady Trumpington. I should have liked to have been in a position, when wishing her a happy new year, to be able to respond to her Question in the manner she wished. Given her great experience of this position at the Dispatch Box, the noble Baroness will be aware that parliamentary privilege prohibits detailed revelation of the contents of legislation in advance. However, I can say to the noble Baroness that one-fifth of all the responses to the consultation came from those with equestrian and carriage vehicle interests. In addition, Ministers and officials met representatives of various organisations. This Government listen carefully and we shall pay full regard to those responses.
  Lord Burnham: My Lords, when the House of Lords was the House of Lords—namely, before 1911—the horse-drawn vehicle could be equated with the motor vehicle now. How are the horse-drawn vehicle and the harnessed horse defined today from the point of view of legislation?
  Baroness Farrington of Ribbleton: My Lords, the Question tabled by the noble Baroness relates to a consultation document issued by the Government. Further, the noble Baroness was certainly not alone in pointing out that the legislation did not seek to make distinctions on this point. We are dealing here with rights of way over which motorised vehicles are rightly prohibited. When the legislation is produced I hope to be in a position to demonstrate that the Government have listened to the points made.
  The Countess of Mar: My Lords, does the Minister appreciate that many of these rights of way are not metalled but are ordinary dirt roads. One of the problems here is that wheels tend to cut up the roadway very much more than do horses' hooves or human feet. As landowners are responsible for maintaining these rights of way, will the Minister take that point into consideration?
  Baroness Farrington of Ribbleton: My Lords, the noble Countess, Lady Mar, is right to draw attention to the fact that wheeled traffic may cause damage, and that the traffic we are considering here should be allowed only where it does not damage the carriageway. However, I am of course aware that horse-drawn vehicles can benefit people living nearby who wish to grow roses.

  Sport Strategy
  2.57 p.m.
  Lord McNallyasked Her Majesty's Government:
  When they intend to publish their strategy for sport.
  Lord McIntosh of Haringey: My Lords, the Government have been giving careful consideration to their strategy to improve sport in this country. We expect to publish in the near future, after consultation with key stakeholders in the strategy.
  Lord McNally: My Lords, did the Minister read in the Daily Mail of 6th January that out of 103 applications to sell school playing fields, 101 had been granted by the Government? That is a catastrophic betrayal of pre-election pledges by the Government. What confidence does that figure give that the so-called strategy for sport, requiring government resources and will to implement it, will deal with social exclusion and social deprivation, areas where sport has a unique opportunity to play a role?
  Lord McIntosh of Haringey: My Lords, the noble Lord and the Daily Mail choose their statistics very selectively. The truth of the matter is that in the first year of this Government, only in 13 cases were there losses of playing field sites against the advice of the statutory consultees, Sport England. In the past 12 months there have been only six such cases. The loss of playing fields, except when justified, has dramatically reduced and gives us confidence that our sports strategy will cover issues of social exclusion to which the noble Lord rightly refers.
  Lord Faulkner of Worcester: My Lords, can my noble friend say what progress has been made in finding a suitable athletics arena in London for world and European outdoor championships? Is he aware that there is very great public support for the decision taken by the Secretary of State and the Minister for Sport to remove athletics from the new Wembley stadium and to seek repayment of part of the lottery grant from the Football Association and Wembley National Stadium Limited?
  Lord McIntosh of Haringey: My Lords, I am grateful to my noble friend for his comments about the Secretary of State's conclusion on Wembley. He will know that the Rugby Football Union has proposed to the Government that Twickenham should be used for major international athletic events. We are very receptive to that idea and are looking into all the issues in the hope that it may be a good solution for separate but still first-class provision both for athletics and for football.
  Lord Addington: My Lords, can the Minister give the House some guidance about school sports in particular? Will the time given in the national curriculum for school sports allow for the amount of travel faced by many inner city school pupils in getting

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  to playing fields? I am sure the noble Lord will agree that if the school timetable provides for three hours of sport but pupils spend one-and-a-half hours traveling—leaving aside getting changed—there is no proper sports provision at all.
  Lord McIntosh of Haringey: My Lords, the noble Lord is quite right. I can assure him that when the sports strategy appears it will give great prominence to the need for, adequate provision for physical education, including competitive team sports, in our schools. It is not within the legal power of the Secretary of State for Education and Employment to set a fixed period for any subject within the national curriculum, but the issue raised by the noble Lord of travelling to sports fields is an important one. It is an aspiration—an agreed aspiration—that there will be two hours of sporting activity all our schools.
  Lord Bruce of Donington: My Lords, in order to give further emphasis to the favourable response of my noble friend to the noble Lord, Lord McNally, would the Government be prepared to consider suspending as of now all further disposals of school sports fields and also laying it clown that in future any assent given to a proposal to dispose of a sports ground should be signed and approved by a senior Minister of the Crown?
  Lord McIntosh of Haringey: My Lords, I do not think it would be appropriate to ban every change of use for playing fields. For example, some are attached to schools which no longer exist and some are in areas where there is, as there certainly is not in all parts of the country, an excess of playing field provision. However, the thrust behind my noble friend's question is quite right. Perhaps I may point out that because Sport England is a statutory consultee it is necessary for local authorities to pay attention to the need for sporting facilities. The proceeds from any disposal of playing fields must go to education and to sporting provision. The Secretary of St ate now has the power, whenever it is necessary, to call in applications which affect playing fields. But I do not think that a blanket ban would be appropriate.
  Lord Cowdrey of Tonbridge: My Lords, will the Minister press with in government for more positive help for our four major ball game sports—rugby, tennis, football and cricket. During a constructive debate in your Lordships' House several months ago there was widespread agreement that, looking ahead, we would not be in a position to compete internationally in those four sports. It is a shattering state of affairs that our sports are on the floor. Can the Minister assure us that the Government really will take the problem seriously?
  Lord McIntosh of Haringey: My Lords, I can certainly give the noble Lord that assurance. The pursuit of excellence is one of the criteria that will govern the final production of our sports strategy. But it must in turn depend, as I am sure the noble Lord will
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  agree, on sports provision in schools and on the availability of sporting facilities and opportunities throughout life, even for those who cannot aspire to sporting excellence. The four major sports to which the noble Lord referred have been consulted and are being consulted in the preparation of the sports strategy.
  Lord Hoyle: My Lords, will my noble friend, who knows my interest in Rugby League as the chairman of Warrington Rugby League Club, ensure that super-Rugby League clubs receive the same educational grants as premier league and first division football clubs?
  Lord McIntosh of Haringey: My Lords, I do not know the answer to that question.
  Lord Phillips of Sudbury: My Lords, will the Government bear in mind in their strategy that sport in this country is carried on the shoulders of community amateur sports clubs? Is the Minister aware that they currently have no tax exemptions? They are not charities and they receive only discretionary rating relief. When the Government produce their strategy, will they contemplate giving them tax exemptions comparable to those available to charities?
  Lord McIntosh of Haringey: My Lords, we are very well aware of the problem to which the noble Lord refers. We are discussing it with the Treasury and with the Home Office. However, even if we were to grant 100 per cent relief, as happens in Scotland, the difficulty is in deciding what is a worthy community sports organisation of the kind to which he refers and not just a very rich golf club or one that is very exclusive. We require some definition of what is worthy and we have to retain some responsibility for local authorities, which know the sports clubs concerned, to make a decision on that point.

  Business
  Lord Carter: My Lords, at a convenient moment after 3.30 p.m. my noble friend Lord Hunt of Kings Heath will, with the leave of the House, repeat a Statement that is being made in another place on influenza.

  Race Relations (Amendment) Bill [H.L.]
  The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton): My Lords, I beg to move the Motion standing in my name on the Order Paper.
  Moved, That it be an instruction to the Committee of the Whole House to whom the Race Relations (Amendment) Bill [H.L.] has been committed that they consider the Bill in the following order:

  Clause 1,

  Schedule 1,

  Schedules 2 to 8,

  Schedules 2 and 3,

  Clause 9.—(Lord Bassam of Brighton.)

  On Question, Motion agreed to.

  Care Standards Bill [H.L.]
  3.7 p.m.
  The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
  Moved, That the House do now resolve itself into Committee.—(Lord Hunt of Kings Heath.)
  On Question, Motion agreed to. House in Committee accordingly.
  [The PRINCIPAL DEPUTY CHAIRMAN OF COMMITTEES (LORD TORDOFF) in the Chair.]
  Clause 1 [Children's homes]:
  Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 1:
  Page 1, line 9, leave out ("subsections (3) and (4))") and insert ("the following provisions of this section)").
  The noble Lord said: In moving this amendment I shall speak also to Amendments Nos. 2 to 4 and 149 and 150. They are correcting amendments to re-enact the provisions of the Children Act that require boarding schools in certain circumstances to be registered also as children's homes.
  Section 63 of the Children Act requires independent boarding schools to register as children's homes where they provide or arrange accommodation for any child for more than 295 days a year. The Bill as currently drafted states that if an establishment is a school, it cannot also be a children's home. These amendments are therefore necessary in order to retain the current provisions contained in the Children Act.
  We consider it appropriate that the more stringent arrangements for registering children's homes should apply where children remain with the school for much longer periods than are covered by the normal school terms. Consistent with the new definition of "children's homes", there will no longer be an exemption for schools providing accommodation for fewer than four children. In addition, the amendments cover independent schools approved for the education of children with special educational needs which are not currently provided by the Children Act provisions. We consider that such schools, where they provide accommodation for children for more than 295 days in a year, need to be registered as children's homes in the same way as other boarding schools.
  The amendments allow an important set of safeguards for children accommodated away from home to continue under the new arrangements provided for by the Bill. I beg to move.
  Lord Northbourne: I should like to express concern about the definition of these schools as set out in Amendment No. 3. Will the Minister indicate whether the purpose of the clause is to protect particular children at a school? If that is so, I suggest that the amendment is not worded clearly enough. Some schools take in other children for holiday courses, which could easily extend over the 295-day period. The children who attend the school during the normal term time are one group and an entirely different category of children may attend during the holidays. For example, at a school with which I am familiar music courses are held during the holidays. Some clearer definition may be necessary in that respect.
  Lord Laming: In regard to Amendment No. 2, leaving out the words from "centre" to the end of line 8, what is a "residential family"?
  Lord Hunt of Kings Heath: In regard to whether the definition of "295 days" is appropriate, there is no intention to capture schools with normal terms which run residential courses during the holidays, as many do. As regards the definition included in the clause, the key reference is that the accommodation is provided for children for more than 295 days. I take that to mean children receiving schooling for more than 295 days in any one year, rather than a school using the holiday period for other children's holiday activities. The provision repeats the wording of the Education Act. I am satisfied that it does not need further clarification. However, I shall be happy to examine it in the light of the noble Lord's comments.
  Lord Clement-Jones: I thank the Minister for having had the courtesy to write to me about one of the amendments that he has tabled. His case is clearly that the provision in the Bill is largely a reintroduction of provisions included in the Children Act but with the exception of independent schools approved for the education of children with special educational needs. What consultations have taken place with such schools about the provisions? After all, this is a major new piece of regulation for them.
  Lord Jenkin of Roding: Perhaps I may take up the point made by the Minister in his reply to the noble Lord, Lord Northbourne. He said that it is not the intention of the clause to catch, for instance, schools that run music courses during the holiday. However, it may be desirable to reflect that point in the Bill rather than merely in a statement from the Front Bench.
  On another point, independent schools are increasingly taking pupils from overseas. It is by no means unknown, particularly in the shorter school holidays, for some of those pupils to remain at the school, possibly being looked after by the family of one of the masters, during the Christmas and Easter

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  vacations. In tho3e circumstances a school may find itself with several children who are there for more than 295 days. Would that convert the school into "a children's home", whereas otherwise that would not happen?
  3.15 p.m.
  Lord Hunt of Kings Heath: Perhaps I may deal first with the issue of special schools. We are extending the dual registration arrangements to cover independent special schools, which are not currently covered. That will bring a further 100 or so special schools into the regime. That is an important safeguard. Children who attend such schools will receive the extra protection provided by dual registration.
  As regards the more general issue raised by the noble Lord, Lord Jenkin, I have said that I will reflect on the point raised by the noble Lord, Lord Northbourne, to make sure that the definition contained in the amendment does not cause problems to schools which use school premises outwith school term time. I repeat that the wording in the amendment follows current legislation. I am not aware that the present law has caused any problems to individual schools, either in the terms in which the noble Lord spoke or in terms of the point raised by the noble Lord, Lord Jenkin, regarding people coming from abroad who might stay in school premises.
  Baroness Masham of Ilton: I am very pleased that special schools have been included, but why were they not included in the first place? It is well known that some of these schools were strongly considered to be at risk and that serious abuses have taken place throughout the country.
  Lord Hunt of Kings Heath: It would be difficult for me to explain why special schools were not included in legislation that was enacted some years ago. The noble Baroness is right to point out the importance of introducing the safeguards into this Bill.
  As regards the point about independent schools in relation to children with special needs, the originating concern came from the children's safeguards review. In reply to the noble Lord, Lord Clement-Jones, we have not yet held detailed discussions with the schools affected. However, I assure the noble Lord that we shall discuss detailed arrangements with them in due course.
  Lord Laming: Will the Minister indicate what the term "residential family" means?
  Lord Hunt of King's Heath: The amendment is not aimed at omitting the word "centre" but the word "or". It is a drafting point in order to introduce a new definition of a dual registration school.
  On Question, amendment agreed to.
  Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 2:
  Page 2. line 7, leave out from ("centre") to end of line 8.
  On Question, amendment agreed to.
  Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No.3:
  Page 2, line 9, at end insert—
  ("(5) Subject to subsection (6). an establishment is not a children's home if it is a school.
  (6) An independent school is a children's home at any time if at that time accommodation is provided for children at the school and either—

  (a) in each year that fell within the period of two years ending at that time, accommodation was provided for children. either at the school or under arrangements made by the proprietor of the school, for more than 295 days; or

  (b) it is intended to provide accommodation for children. either at the school or under arrangements made by the proprietor of the school, for more than 295 days in any year;

  and in this subsection "year" means a period of twelve months.").
  On Question, amendment agreed to.
  Clause 1, as amended, agreed to.
  Clause 2 [Independent hospitals etc.]:
  Lord Clement-Jones Lord Clement-Jones moved Amendment No. 4:
  Page 2, line 12, at end insert ("and for the purposes of this Act an independent hospital shall include private patient units within a health service hospital").
  The noble Lord said: I beg to move Amendment No. 4, the purpose of which is very similar to that of the two following amendments and the amendment in the name of the noble Earl, Lord Howe, and noble Lords on these Benches. I am sure that the noble Earl will have more to say on the subject. This is perhaps a fairly crude amendment but it is designed to deal with the straightforward question of whether or riot NHS pay beds should be subject to regulation under the terms of the Bill. Currently, such beds are not subject to review by the Commission for Health Improvement under the Health Act which we debated some months ago. This amendment is designed simply to bring into the fold those NHS pay beds which, after all, should be treated on the same footing as those provided by any other independent healthcare provider. If they are not brought within the terms of the Bill, no form of inspection or review will be applicable to them. What guarantee can patients in those NHS pay beds have of good clinical practice?
  I am very happy to see NHS trusts raise further funds by the provision of NHS pay beds. It is good to have a "mixed economy" in that sense. But I believe that one of the key matters in this Bill—as it was when we debated the Health Bill (now the Health Act)—is quality. The professions are themselves putting their house in order in terms of clinical governance. I believe that the Government in turn should ensure that the inspection and review regime is seamless not only across the NHS and the private sector, but also within the private sector. Both the private care sector and consumer interests believe strongly that that is a glaring omission. This particular amendment has been proposed by consumer organisations which feel strongly that, for the sake of the patients, Amendment No. 4 should be accepted by the Government.
  Earl Howe: I rise to speak to Amendments Nos. 11 and 18 in my name and to support strongly the observations of the noble Lord, Lord Clement-Jones. The Government are in a terribly complicated muddle over the regulation of private healthcare. The delivery of healthcare in this country does not issue forth from two conveniently separate channels, one labelled "public" and the other "private"; it is not as simple as that. The NHS frequently sub-contracts to the private sector, most notably in the field of mental health, and there are private wings and beds in NHS hospitals. If one decides, as the Government appear to have done, that, despite all the interdependence between the public and private sectors and the facts that most consultants work in both sectors and that the same patient can be treated in one sector and moved to another for further treatment, the public sector is to be regulated in one way and the private sector in another, anomalies are bound to occur.
  My understanding based on the debates last year on the Health Bill was that the Commission for Health Improvement would be the regulator of all healthcare funded by the public sector, including care delivered to NHS patients in private hospitals. We shall deal with that anomaly when we debate Amendment No. 31. Meanwhile, I should like to hear from the Minister whether my understanding is correct. Now that we are about to have a national care standards commission with a separate division responsible for regulating private hospitals and clinics, are we to suppose that in practice CHI may sub-contract to the commission the job of overseeing NHS patients in private hospitals?
  The anomaly addressed by this amendment, however, relates to NHS pay beds. Many people, including myself, are still unclear as to what role, if any, will be played by the Commission for Health Improvement in the supervision of standards in private wings and wards of NHS hospitals. The Minister was kind enough to address this issue in his winding-up speech at Second Reading, but I am afraid that I did not understand it, even on re-reading what he said. If CHI is not to be involved in the regulation of NHS pay beds, surely it follows that the national care standards commission must be; NHS pay beds cannot be left out in the cold.
  The trouble with the Bill is that it begins by categorising different kinds of care services in terms of the physical premises that they occupy. That might have been the best that the lawyers could do, but it makes life awkward when part of the Bill is devoted to NHS care and part is related to private care. My amendments try to find a way through it by defining a new type of establishment; namely, an income-generating health service unit. Such a unit is, in other words, a private ward or wing of an NHS hospital. Under this proposal, the NCSC will assume responsibility for NHS pay beds alongside its responsibility for monitoring standards in private hospitals. I hope that that proposal is a logical one;
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  certainly, it is meant to be constructive. I hope that the Minister will view that amendment with some sympathy.
  Lord Jenkin of Roding: I find myself in difficulty in this matter. I do not know whether the Minister is old enough to recollect Cullompton. At the time of the debates about the continuation of private beds in NHS hospitals when the noble Baroness, Lady Castle, was Secretary of State, there was considerable argument about whether it was appropriate that there should be pay beds within the premises of NHS hospitals, sometimes as an integral part of wards. Happily, in the end, sensible provisions prevailed, although it may have taken a year or two for the system to settle down.
  I find myself in a dilemma in this matter. I completely understand the point to which the noble Lord, Lord Clement-Jones, referred. I also understand the points made by my noble friend in speaking to his amendments. But pay beds take many different forms. I take as an example Lindo Wing at the Middlesex Hospital or units at other teaching establishments which have premises separate from the main NHS hospital. In those circumstances, the intention behind the amendment moved by the noble Lord, Lord Clement-Jones, is wholly appropriate. That should be looked after by the new commission. In the Forest Health Care Trust, of which I was chairman for a number of years, the largest group of pay beds was in that part of the hospital concerned with maternity. We found that over the years there was a considerable demand, even in a relatively deprived area of north-east London, for privacy and the ability to receive visitors at all times, and that people were prepared to pay for it. After all, nowadays most mothers are not in maternity beds for more than a day or two and therefore the cost is not very great. Those beds were an integral part of the remainder of the maternity provision in the hospital. The idea that somehow there should be two lots of inspection, one for NHS beds and the other for pay beds, seems to me to be utterly absurd. One must look at the remit of CHI and consider whether in those circumstances it is entirely appropriate that there should be a single system of inspection. For that reason, I find it difficult to accept these amendments.
  There is another category: amenity beds. As I understand the language used by my noble friend's Amendment No. 11—"income-generating health service units"—an amenity bed, which is much cheaper than a private bed, generates income and gives some of the advantages of a pay bed without the full cost being borne. Would those beds be subject to a separate system of control? I find all of this hugely confusing. I cannot believe that the Government do not now share that view. There will be a ridiculously overlapping system of inspection for what constitutes a single provision of beds which are occupied by patients under different terms.
  If one is looking for a way to inspect the standard of care—we shall debate clinical care in later amendments—one single inspection system must surely be right.
  3.30 p. m.
  Lord Clement-Jones: Before he sits down, perhaps I may ask the noble Lord to consider Amendment No. 31. What he said demonstrates much of the absurdity relating to acute healthcare. The contradictions in the Bill are exposed clearly in this set of amendments. Perhaps the noble Lord will agree that that may be a more felicitous way of dealing with regulations so that common standards are met in NHS and independent healthcare beds.
  Lord Jenkin of Roding: Perhaps I may respond to the noble Lord. If that is the intention, I shall listen with great interest to those who speak to that amendment.
  Baroness Masham of Ilton: I hope that a satisfactory solution will be found. I have been a patient in a National Health Service hospital which had private beds. I visited some of the private patients. Many were in side wards. They were foreign, lonely and deprived. I thought that they were being ripped off. Sometimes their rooms were not dusted. Sometimes they were overlooked and not fed. It would be wrong to leave such patients out of the debate. I hope that a satisfactory solution will be found.
  Baroness Gardner of Parkes: It has been interesting to listen to the different aspects put forward. The debate has revealed what a complex issue we are discussing. For some time I was chairman of the Royal Free Hospital which has private beds within the main hospital occupying half of a specific floor. Because there was need for more beds, national health patients were always given priority and those beds were used regularly for NHS patients although the private beds generated a large amount of additional income for the hospital and there fore were of great benefit to the national health patients.
  The noble Baroness, Lady Masham, raised the issue of shabby wards. The point may be true in some areas. If the private wings in London hospitals are not smartened up to a considerable degree, one has no hope of getting patients into them. They prefer the luxury hotel surroundings of the new, completely private clinics. One has not only to provide the best medicine but also luxury surroundings to encourage patients to choose one hospital rather than another.
  I wish to raise a different aspect. I like the phrase about the income generating health service. Some major national health hospitals run travel clinics. Patients pay for the injections and so on, which they need for travel. Such clinics are not a national health service and never have been. Yet such treatment is given in those hospitals.
  I am not clear whether the Bill relates only to inpatients who are resident in hospital or whether it will also provide for people having treatment of any form. With the present influenza crisis, many businesses would happily pay 'or that national health hospital to give influenza injections. The cost would be far less than that lost due to illness. It would surely be viable through the travel clinics. The premises already exist. It would be an additional feature.
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  We differentiate between what one can and cannot have. However, the patient or someone on his behalf may be prepared to meet the cost. When I was a parliamentary candidate for the Commons, I exchanged a number of letters about pay beds in Plymouth with the then Dr Owen. Pay beds have always been a major issue. However, I agree with the noble Lord, Lord Jenkin. It is important to have one standard and, if possible, one inspectorate. Could that be better achieved by inspection through the National Health Service? The noble Lord's point is valid. To inspect perhaps half a dozen beds or one minor clinic within the institution will not only be irritating but also somewhat impractical. Everyone will be on the defensive and much goodwill that exists in national health hospitals may be destroyed.
  I do not know whether to support the amendment. The more I have listened, the more uncertain I am. It is important that the Government apply their mind to a solution.
  Lord Rix: For 10 years I was a patient across the water at St Thomas' Hospital while my aortic valve, which was busily closing, was examined. Although taking advantage of the private facilities at York House across the road from St Thomas' Hospital, I was sent all the time to the national health testing beds in the hospital. Eventually I became an emergency patient and was admitted to the private rooms on the top floor of the hospital where, after further examination, the aortic valve was replaced.
  For 10 years I mixed private care with national healthcare in that hospital. Yet it all took place on the same premises. I should have thought that an inspection by the same body was sine qua non.
  Baroness Masham of Ilton: Perhaps I may respond to the noble Baroness, Lady Gardner of Parkes. The patients I saw had unfortunately no choice because they had broken their backs or necks. They were sent for treatment by foreign governments.
  I hope that the Minister will visit soon the Stoke Mandeville Hospital where he will see the situation for himself. He will also see how important is the income generated by those patients. That may help him sort out the matter. Two inspections would be a waste of time and resources.
  Lord Hunt of Kings Heath: The noble Baroness, Lady Masham, continually invites me to visit various excellent NHS facilities. I assure her that Stoke Mandeville is on my list.
  The discussion takes us back to the debate at Second Reading and the distinction to be made between the need for the proper regulation of the private healthcare sector and the effective management of the National Health Service, including private facilities contained under its management. Far from there being confusion or a problem about distinction, everything contained in the Bill and as regards the regulation of the private healthcare sector rests on the premise that there will inevitably be different arrangements between the regulation of the private sector and the management of

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  public sector healthcare services. We shall debate the issue more fully on later amendments. However, I felt that I should set the context in which we are debating the proper management of NHS pay beds.
  Amendments Nos. 4, 11 and 18 seek to extend the national care standards commission's regulatory responsibilities to cover NHS pay beds and other income generating facilities. Amendment No. 4 would include NHS private patient units within the definition of an independent hospital in Clause 2 thereby bringing them under the remit of the commission. Amendment No. 11 would have the same effect but would also bring other NHS income generation undertakings within the commission's remit. Amendment No. 18 has the same effect.
  In reply to the noble Lord, Lord Jenkin, I am not sure how widely the noble Earl, Lord Howe, intended the regulator's powers to go, because NHS trusts can generate income in a variety of ways. The noble Lord mentioned amenity beds, but one could include, for instance, renting out space to shops. I am sure that he did not intend to include such action within this provision.
  I believe that the amendments are misconceived. They assume that NHS paybeds need to be subject to regulation because otherwise they would be subject to no control. That is not the case. NHS paybeds, including those in dedicated units, are the responsibility of the NHS hospital where they are sited. They will be subject to clinical governance and all the other controls which apply to the NHS. The amendments would mean that even though a perfectly good system of management and clinical governance covered the whole hospital, certain parts of the hospital would be subject to another regulatory regime. That would be duplicatory and wasteful of time and effort. It would also distract the national care standards commission inspectors from their key task of improving regulation of the currently poorly regulated private sector into inspecting parts of the NHS where perfectly good systems of clinical governance are in place.
  Lord Clement-Jones: Will the Minister clarify those important words? Is he saying that NHS paybeds are covered by the Commission for Health Improvement; and that the reviewing body will be the commission? Will national service frameworks apply to NHS paybeds? Will the NICE guidelines be applied by the CHI when it is inspecting those paybeds? That is implied in the Minister's statement that the full regime as applied to the NHS will apply to its paybeds.
  Lord Hunt of Kings Heath: That must be right because those beds are part of an NHS trust hospital. What applies to that hospital must apply to all the beds within it.In conclusion, I say to the noble Earl, Lord Howe, that I refute the muddle which he suggests we have fallen into. I reiterate the fact that NHS paybeds are already covered by clinical governance and that therefore there is no need to have them further
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  regulated by the care standards commission. On that basis, I invite the noble Lord, Lord Clement-Jones, to withdraw his amendment.
  Earl Howe: I am grateful to the Minister for clearing up much fog and uncertainty that have descended upon the issue. He has done so extremely clearly. We have had a helpful short debate and at the appropriate time I shall not move my amendments.
  Lord Clement-Jones: I thank the Minister for clearing up one confusion. However, in clearing one fog another has descended. As was said by the noble Lord, Lord Jenkin, as some of the NHS paybeds closely equate to independent sector healthcare beds perhaps they should be regulated in the same way. However, as others, such as maternity units, closely equate to NHS beds, a common inspection regime should apply.
  The common message is that a single set of regulations should apply across the board. The Minister repeated the distinction he made on Second Reading between the regulation of the independent healthcare sector and the management of the NHS. However, in many respects, it is a distinction without a difference. A common review and inspection system would be feasible, still leaving the regulation of the private care system within the commission. Future amendments are designed to achieve that.
  We have had an interesting and well attended debate and I thank all Members of the Committee who have taken part. In the meantime, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  3.45 p.m.
  Lord Clement-Jones Lord Clement-Jones moved Amendment No. 5:
  Page 2, line 23, after ("hospital") insert ("or any undertaking by one or more persons)").
  The noble Lord said: Amendment No. 5 deals with a number of additions. We have tabled amendments to Clause 4, but this set of amendments has been formulated to fall under Clause 2. In a sense, therefore, we shall have two bites at the cherry in examining additional establishments which should be covered by the Bill.
  A Consumers' Association report in Health Which?, published in August 1999, found that patients using private GP call-out services may not be adequately protected. One of the problems is that, because they are domiciliary services and are not based in a clinic-type setting, they may not be covered by the Bill. The amendment makes it clear that private call-out services must register under the proposed regulations.
  I turn to Amendment No. 6. Arguably, dental care is the most common private healthcare service used by patients. While it is good that premises providing general practice services are covered under the Bill, we are concerned that only those dentists who provide treatment involving general anaesthetic will be regulated. We do not believe that that is adequate. Therefore, we propose that the dentists who do not

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  provide general anaesthetic should also be covered. They can undertake invasive and high-risk procedures and therefore, like GPs, should be regulated. I beg to move.
  Lord Hunt of Kings Heath: The purpose of Amendment No. 5 appears to be to seek to regulate medical practitioners who do not work from a specific establishment. We are concerned to ensure that the new regulatory system protects patients and have therefore decided to extend regulation to private primary medical care premises. We regard it as being extremely important that such premises, which include private walk-in clinics such as medi-centres, operate to clear standards and are properly and regularly inspected. Our aim is to ensure that all such premises are regulated without regard to their ownership arrangements.
  Amendment No. 6 seeks to bring all private general dental practice within the scope of the commission's regulatory powers. I understand the thinking behind the noble Lord's proposal, but I believe that such an extension of regulation is unwise. First, most dentistry, whether practised in the private or public sectors, does not present a great risk to patients. The great exception is in relation to dentistry under general anaesthetic, which has tragical ay resulted in deaths.
  We are determined to regulate such property, and the Bill makes provision for the commission to regulate premises where that work is undertaken. Furthermore, Clause 37 will allow such treatment to be regulated under the existing legislation even before the commission comes into existence, so concerned are we to take action.
  However, I must say to the noble Lord that it is a big step from regulating this aspect of dentistry to regulating the whole of private dentistry. We consulted on the issue last year and carefully considered the results. We concluded that it would not be right to extend regulation in the way proposed, not least because of the need for proportionality in our approach and the need to avoid unnecessarily increasing the regulatory burden on small businesses. That said, we stated clearly in Regulating Private and Voluntary Health Care chat we shall keep the matter under review and consider whether at some stage we should extend regulation to that and other sectors.
  The noble Lord, Lord Clement-Jones, raised a specific issue concerning call-out services. All wholly private GPs will be covered. Therefore GPs would be covered wherever 'they were practising. We did not regulate only the premises. It is worth making the point that private GPs will also come under the regulatory provisions of the General Medical Council.
  Baroness Gardner of Parkes: I should like to pass some comments on the Minister's remark that he does not believe that much dental hazard exists except in cases involving dental anaesthesia. As a dentist who has used thousands of general anaesthetics I believe that the general anaesthesia issue has gone over the to
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  pat present. I feel strongly about all the poor children who have to wait three months before they may have anything done.
  There is a further aspect to the matter. At the time when I was in practice the National Health Service was very much stronger than it is now. I deplore the transfer of dentistry away from the National Health Service. I was a member of the London local dental committee, and a procedure existed whereby we used to inspect any surgery or premises where there was any doubt whatever about the standard of cleanliness or hygiene. Today, when sterilisation is a most important feature of life in terms of transmission of infection—particularly HIV, although hepatitis is perhaps even more transmissible—it is important to ensure that all dental practices have adequate facilities in terms of autoclaving.
  In my day when one started one used to mix up one's solution in a bottle of water and add the tablets. Nowadays people would be horrified by that. Unfortunately, disease has progressed to the extent where it is terribly important that one has a sealed individual capsule and an individual needle. The Minister might believe that practices do not act in such a way, but I recall clearly, when I sat on the disciplinary committee of the General Dental Council, the case of a NHS practice—it could now he a private practice—where the forceps were merely dipped under the tap after each extraction. The dentist concerned had a turnover of £1 million per year and was disqualified by the General Dental Council. Think of how many patients he had treated without sterilising anything. He had one set of forceps for four surgeries which he would dip under the tap and then run on to the next patient. The hazard of that to the patient is almost unbelievable.
  Therefore, I cannot go along for a minute with the view that the only hazard in dentistry is general anaesthesia. It is important to consider this question. If I could find fault with the amendment tabled by the noble Lord, Lord Clement-Jones, it might be that to specify dental practitioners is not enough and that the amendment should refer to premises used by anyone in any allied profession. I do not know what the hazards are in an osteopathic or chiropractic practice. Perhaps the terms of the amendment are not wide enough, but it would certainly be a good thing to include dental practitioners, unless the Minister can assure me of some other form of examination being carried out to assess standards in private dental practice.
  Baroness Masham of Iton: Will the Minister tell the Committee whether, where line 24 of Clause 2 states, "by medical practitioners", nurse practitioners are included?
  Lord Hunt of Kings Heath: I believe that the answer must be no.
  It is a foolhardy Minister who tries to talk about dentistry when the noble Baroness, Lady Gardner, is in the Committee. She made some extremely valid points. I hope that I did not, by saying that the particular focus here relates to anaesthesia, give the

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  impression that other issues do not need to be considered in relation to safety and hygiene within dental premises. The substantive point that I was trying to make is that this is an area of particular concern. I note the noble Baroness's comments as to whether too much is made of the anaesthesia issue. Certainly we in government have been concerned about the number of cases identified where use of anaesthesia has led to deaths in dental surgeries. The noble Baroness may well be aware that we are currently undertaking a review of that matter.
  To move from regulating that aspect of dentistry is a large step and it seems to me sensible to focus on that area. In relation to the more general issues about dentistry raised by the noble Baroness, we hope to publish a strategy on dental services in the future as part of our efforts to try to ensure that those who wish to have NHS dentistry may receive it. Of course, GDS regulations exist in relation to NHS dentistry which are one component of the relationship between the NHS and dental services. We are keen to encourage such practices as continued education for dentists in order that we may update them and ensure that they keep up with current thinking and trends.
  Lord Clement-Jones: Before the Minister sits down I should like him to answer a question. Is dentistry carried out in care homes subject to a different regime or is it still subject to the same regime—that is, that such dentists are regulated only when operating under general anaesthetic?
  Lord Hunt of Kings Heath: I believe that that is right. I shall check the point and perhaps write to the noble Lord. In relation to dental services, the Bill certainly focuses on treatment under anaesthesia.
  Lord Clement-Jones: I thank the Minister for a number of assurances he made during his reply, in particular in relation to the long-awaited dental strategy. I have asked a number of questions on that point and it is probably now about 18 months overdue—that is merely a quick estimate of the period of time for which we have been awaiting it. We look forward to it because it should clarify some of the issues.
  Lord Hunt of Kings Heath: We hope that the strategy will be published shortly. It is always better to get it right than to rush it.
  Lord Clement-Jones: There can be no danger of the strategy having been rushed, so I am sure that it will be an excellent strategy once it arrives. I appreciate also the Minister's assurance that, although he does not agree that dentistry in general should be brought within the scope of the Bill, there will be a review. I must say that I found some of the points made by the noble Baroness, Lady Gardner of Parkes, rather telling. I ask the Minister to read Hansard and to consider whether that review should happen sooner rather than later. Clearly dental interests need to be consulted, but I suspect that, as so often happens in
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  such cases, the better private practice dentists would welcome such regulation and only the worst practitioners would not welcome it, just as all the reputable independent healthcare sector organisations have welcomed greater regulation over their activities.
  Finally, I thank the Minister also for clarifying the position relating to private general practitioners. That will be a matter of some considerable comfort because it was felt that the Bill did not cover those who did not practise out of a clinic or out of their own premises. As the Bill goes through the House, we shall no doubt consider further the question of dentists who do not carry out general anaesthetics and we shall take on board some of the points made by the noble Baroness, Lady Gardner. In the meantime, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 6 not moved.]
  On Question, Whether Clause 2 shall stand part of the Bill?
  Lord Laming: The debate on Clause 2 has been extremely helpful because it has revealed all too clearly the anomalies which the clause introduces into an otherwise very worthy Bill. The contributions made by a number of noble Lords have indicated well and truly that the inclusion of Clause 2 clarifies one anomaly but creates another.
  As I indicated at Second Reading, overall I warmly welcome the Bill. The main reason I do so is because it ensures for the first time that whoever is the provider—local authority, voluntary body or independent organisation—all social care provision will be regulated and inspected by the same body according to the same standards. That kind of consistency is warmly welcomed. But it is torpedoed by the introduction of Clause 2. Whatever the connection between the care standards covered by the rest of the Bill and dental services that use anaesthesia, clinics that terminate pregnancies, obstetrics services and cosmetic surgery and so on, Clause 2 is in the Bill only because the services referred to within it are independent or provided independently of the National Health Service. However, the issue of pay beds within the National Health Service and some other points which have been made, especially by the noble Baroness, Lady Gardner of Parkes, and the noble Lord, Lord Clement-Jones, have indicated that those lines of demarcation are far from clear.
  The national care standards commission will be an entirely new body with a huge range of responsibilities in the social care field. It will register thousands and thousands of centres and individuals who must be deemed fit to run such services. The services will cover the whole age range and an enormous variety of needs experienced by children, adolescents, people with learning disabilities or those with mental health problems, physical disabilities or problems associated with ageing. The commission will already need to employ a wide range of people with specialist knowledge and skills if it is to achieve its principal function; that is, the registration and inspection of care

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  standards. It seems to me totally unrealistic to believe that a whole range of other skills necessary to deal with anaesthesia, anaesthetics, palliative care, cosmetic surgery and so on can be grafted on to that body. The Bill goes some way towards acknowledging those difficulties in that standards for the inspection of care services appear to be different from the standards applied to health provision.
  I have great regard for the Minister and for his knowledge of health services. He comes from Birmingham. When he addresses the good people of Birmingham he will be able to tell them that wherever their relatives are placed in the social care system, because of the Bill the standards will be secured by a uniform system of registration and inspection. However, sadly, because of Clause 2, he will not be able to say the same about healthcare. Within Birmingham is a vast reservoir of specialist knowledge and skill across the whole range of health service provision. However, that skill and knowledge are within the National Health Service and should be applied wherever the provision is made. As several noble Lords have said, increasingly the National Health Service is using independent provision in a wide range of ways; sometimes for recuperation, sometimes for rehabilitation, and sometimes because there is insufficient provision in the health service and therefore the choice is made to use an independent provider. It is not sufficient to say that the use of independent providers will be dealt with on a contractual basis with contractual arrangements. Everyone must be assured that the standards which apply in one section of healthcare will apply in all sections.
  I happen to be a great supporter of the National Health Service. However, I believe that wherever people receive healthcare treatment the standards of regulation and inspection should be the same. I do not believe that there is a sufficiently good argument for separating this area of activity from the remainder of the health service and for saying simply that the National Health Service is managed by the department. Whoever manages a service, that service should be subject to the same system of regulation and inspection. Unless the clause is removed from the Bill we shall have anomalies, of which pay beds in the National Health Service is just one.
  Your Lordships will recall the long debates which took place in this House on the Health Bill and the detailed discussion about new ways of promoting and maintaining clinical standards and monitoring performance across the health service. In addition to the long-established systems within healthcare, there are now adequate ways to ensure that all healthcare, whoever provides it, can he regulated, monitored and inspected by one body. I was interested in a publication which I am sure your Lordships will have seen. It is a recently published Parliamentary Brief in which the Secretary of State for Health, Mr Alan Milburn, states:
  "For the first time in the history of the NHS we are setting clear national standards—through National Service Frameworks and the National Institute of Clinical Excellence—to guarantee fair treatment wherever patients live".
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  Of course, wherever patients live; also, wherever patients are provided for. Mr Milburn goes on:
  "And for the first time we are inspecting all parts of the health service—through the Commission for Health Improvement—to ensure that patients get the top class care they deserve".
  I agree with that. However, if all aspects of the health service are to be inspected through the Commission for Health Improvement, surely it is possible to ensure that other health providers can be subject to the same type of inspection.
  In my view, Clause 2 undermines the consistency of an otherwise extremely worthy Bill. If the clause remains, it will undermine public confidence in the safeguards for patients and patient care and treatment and it will complicate unnecessarily the task of the new care standards commission. I believe that it will put at risk the commission's effectiveness which, in the long term, will undermine its performance. I hope that your Lordships will take this opportunity to remove Clause 2 from the Bill.
  Lord Clement-Jones: I support the noble Lord, Lord Laming. I believe that I would have only to say, "Amen", and my task would be done. However. I repeat some of the questions raised by the noble Lord. He expressed the issues extremely eloquently. He quoted the Government against themselves. I believe that the only matter he did not mention was the Government's own conclusions in response to the Health Committee which, again, can be prayed in aid against them. As we go through the Bill, the contradictions posed by Clause 2 will become greater and greater.
  As the noble Lord, Lord Laming, said, the provisions concerning independent acute hospitals have simply been grafted on to the Bill. Those of us who have been struggling with amendments during the recess have become acutely aware that the provisions regarding the regulation of independent care in the acute sector are simply bolted on and do not fit at all comfortably with the remainder of the Bill. The Bill is highly progressive and, as the noble Lord, Lord Laming, said, will provide consistent regulation across the social care sector. We see no such thing arising from that in the healthcare sector. Rather, we see a very different set of regulation. The best solution would be to get rid of Clause 2.
  The Minister is known for his reasonableness. We had good discussions concerning almost everything relating to the Health Bill apart from the independent healthcare sector. That was the one area where we divided continuously. We did not play a great deal of "ping-pong" but we divided continuously from Report stage through to Third Reading and got no joy whatever from the Government. I cannot help believing that there is some ingrained ideological unwillingness inside the heads of Ministers who, although they proclaim the virtues of a mixed economy in social care, somehow cannot grasp the fact that we have also, albeit on a more limited scale, a mixed economy in healthcare. After all, only this morning the Secretary of State spoke about how the flu epidemic is being dealt with. He was trying to refute

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  those who say that the independent healthcare sector is not being used sufficiently to deal with the epidemic. He said that we have contracts between local trusts and health authorities and the private healthcare sector. Therefore, in practice there is use of that sector. It is high time the Government responded to what is absolute common sense in this matter and agreed that we have a seamless system of regulation of healthcare across both the private and the NHS sectors.
  Lord Hunt of Kings Heath: I fully understand the reasons why the noble Lord, Lord Laming, does not want the national care standards commission to regulate the private healthcare sector. But we are determined to strengthen the current regulatory arrangements for this sector, not least to ensure the quality of care for patients. We believe that the most effective ways of doing that are contained within the proposals in this Bill.
  It is clear that we shall have further debate on this subject later tonight and indeed as the Bill progresses. But before responding directly to the noble Lord, I should set out the Government's general approach to the regulation of private and voluntary healthcare.
  We believe that the starting point is that those who operate private hospitals should be accountable for all aspects of care undertaken in them—both the clinical and the non-clinical services. This includes the work of doctors to whom they grant admitting rights. It is not acceptable for hospital owners and managers to seek to wash their hands of their responsibilities on the grounds that patients contract separately with consultants for medical care.
  We believe that there should be a strong regulatory regime for private healthcare. There is no doubt that one of the many weaknesses with the current regulatory regime is that 100 different health authorities are responsible for inspecting private hospitals. I believe that that has led to an inconsistent approach and that some health authorities have found it very difficult to regulate private hospitals appropriately.
  We believe that establishing a single body, the national care standards commission, with responsibility for regulating private healthcare across the country, will ensure a consistent and clear approach to enforcing the standards that we set. The inspectors will be focused on the healthcare sector and will develop the expertise and skills necessary to ensure proper regulation of this sector.
  I know that the noble Lord would like to have a separate body—or I suspect the noble Lord would like to have a separate body—regulating the independent healthcare sector. This would have been appropriate when the Government planned to have regional commissions for care standards, as there would not have been the same expertise at regional level nor the same need for regulating private healthcare in some areas as opposed to others. But as we have decided to have a national commission, that is no longer the case.
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  Her Majesty's Government very much believe that having one body regulating all the areas encompassed in the Bill is the best way forward.
  Having one body regulating healthcare alongside social care will mean that the commission will be able effectively to regulate facilities that provide both health and social care, using inspectors skilled in both areas. As well as ensuring inspectors will have the appropriate skill mix, it will also benefit providers, who will only have to be inspected by one body, compared with the current system under which they are inspected by both the health and local authority.
  If we set up a separate regulator for private healthcare, there would be substantial difficulty for some providers being forced to cut in half the work they do across both health and social care. For example, mental health provision is often provided across the range of care needs. Our overall approach to breaking down barriers between health and social care is encouraging providers to develop innovative and flexible mixes of provision. This would be seriously undermined if we asked providers to register separately their different provision with two different national regulatory bodies.
  I hope that I have convinced the noble Lord that although he does not necessarily agree with how we have dealt with the private healthcare sector, there is every reason to include the private healthcare sector within the provisions of this Bill and encompassed within the care standards commission. We shall be returning to this issue later in debate and specifically to the various aspects of private healthcare regulation. But I hope, having heard the arguments, that the noble Lord will now agree that the clause should stand part of the Bill.
  Lord Laming: I regret to say that I am wholly unconvinced. I will say that again: I am wholly unconvinced by anything which the Minister has said. That is a first.
  I find myself in a difficult position because I feel very strongly about Clause 2. As we go through the many amendments relating to Clause 2, I shall feel inclined to say: "Had you supported me in removing Clause 2, there would be no need to discuss this matter".
  In the light of this discussion and what the Minister has said, and the fact that we will have opportunity to return to the matter, wise counsel suggests that should withdraw my opposition to the Motion. But I must say that I do so with an extremely heavy heart.
  Clause 2 agreed to.
  Lord Burlison: My Lords, I beg to move that the House do now resume.
  Moved accordingly, and, on Question, Motion agreed to.
  House resumed.
  Lord Burlison: My Lords, before we move to the Statement on influenza, I take this opportunity to remind the House that the Companion indicates that

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  discussion on a Statement should be confined to brief comments and questions of clarification. Noble Lords who speak at length do so at the expense of other noble Lords.

  Influenza
  4.17 p.m.
  Lord Hunt of Kings Heath: My Lords, with the leave of the House, I shall repeat a Statement made by my right honourable friend the Secretary of State for Health in another place. The Statement is as follows:
  "With permission, I would like to make a Statement on the outbreak of influenza that is gripping the country and the impact it is having on NHS services.
  "As the House will be aware, the last few weeks have seen a particular strain of influenza—Sydney A—affecting thousands of people in all parts of the country. According to the Public Health Laboratory Service, which monitors the incidence of flu, it has been rising in all regions over recent weeks. The worst affected regions to date have been the north and central. Nationally in early December the numbers of people consulting their GP for the first time with flu-like symptoms stood at 40 per 100,000 population. Today I can tell the House that the latest provisional figure had more than quadrupled to 197 per 100,000.
  "The Chief Medical Officer, Professor Liam Donaldson, has advised that the official figures only reflect the people, who have consulted their doctor and undoubtedly understate the true size of the outbreak. That is because heavy usage of the new service, NHS Direct, and the number of patients going to their pharmacist means many patients will not show up on the conventional GP-based tracking system.
  "The previous highest levels of influenza seen since monitoring began were in 1968–69 and 1989–90. The CMO believes that the present epidemic will not reach those levels, but he considers that there are people missing from official statistics because instead of consulting their GP they have used alternative routes of advice. That means that unless present levels of influenza activity peak soon we could be heading for the worst epidemic in the last decade. That certainly chimes with most people's experiences. There can hardly be a family in the land that has not been affected by the flu. Everybody knows somebody who has had it.
  "People also know that it is particularly severe in its effects. Professor Brian Duerdon, deputy director of the Public Health Laboratory Service, says that,
  'it is a more prolonged illness, at 10 to 12 days before people start to feel better rather than four or five'.
  "It is also having a particular impact on elderly people, some of whom have developed serious complications such as bronchitis and pneumonia. In addition to influenza, other viruses such as
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  respiratory syncytial virus (RSV) are contributing to acute respiratory illness. I am advised that RSV illness is at its peak at present.
  "Emergency admissions to hospital have risen as a result, with over 200,000 such admissions to hospitals in the past three weeks alone, an increase of almost 30 per cent over the past two months. The evidence that we are receiving from hospitals is that the patients who are being admitted are more ill than normal and are staying longer than normal.
  "This serious flu outbreak has placed additional strain on local health services in many parts of the country. In the last three weeks the number of people attending accident and emergency departments in hospitals has risen to over 600,000. There have been a quarter of a million calls to ambulance services—up almost one-third on last year—and a similar number of calls to NHS Direct over the last three weeks, many of them flu related. According to Professor Mike Pringle, chairman of the Royal College of GPs, over the millennium GP co-operatives had 50 per cent more calls than last year, mainly due to the flu.
  "These figures demonstrate very clearly that the flu outbreak has put very real pressure on NHS services. There is no doubt about that. Equally the evidence suggests that the NHS is dealing with these pressures. All acute hospitals across the country have remained open throughout the winter period. Of course both GP surgeries and hospitals are very busy.
  "The highest priority is being given to patients who are most seriously ill. As is usual and as had been planned, most hospitals have been undertaking little routine elective surgery over the last few weeks in order to be able to concentrate their efforts on emergency cases. The number of emergency admissions remained unusually high last week because of the flu outbreak and many hospitals which had planned to start surgery today have decided to delay until the immediate emergency pressures subside. Hospital managers and clinicians will make judgments about how best to balance their workload in light of local experience over the next few weeks. This approach represents a sensible deployment of NHS staff and resources. It is allowing the health service to cope with the surge in emergency demand that the flu outbreak has brought.
  "Thanks to the staff who are running critical care services, they too are coping with the demands being placed on them, despite the fact that intensive care is under very real pressure. About half of the patients being admitted to intensive care have flu or flu-like illnesses resulting in pneumonia or, less commonly, septicaemia leading to multiple organ failure.
  "This year the Government have provided a record number of intensive care and high dependency beds. We have worked very closely with the Intensive Care Society to plan critical ca re facilities in hospitals.

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  "Patients who need acute and critical care are being looked after. There has been an increase of 100 critical care beds this year and, with exceptional demand, staff and facilities are being used flexibly to ensure patients receive the care they need. Staff are doing an excellent job in difficult circumstances. The number of beds available fluctuates by the hour, but I can tell the House that as of mid-morning today there were 22 beds available. Local surges in demand, particularly as the flu moves around the country, will however continue to place particular pressures on critical care facilities. Where appropriate, local NHS hospitals have made arrangements with local independent hospitals for critical care.
  "Where transfers between intensive care units are required as a matter of last resort, the chief executives of NHS trusts have been asked to ensure that the arrangements run smoothly and that clinical staff are given as mush support as possible.
  "So the influenza outbreak has put particular pressure on the NHS. But the NHS is coping. As the chairman of the BMA, Dr Ian Bogle, said earlier today,
  'all parts of the NHS have been put under pressure but doctors and nurses are coping well from GP services to intensive care. The incidence of new cases of flu is uneven but wherever it is occurring it is a particularly nasty strain. Thanks to the high level of planning across the country we are coping'.
  "Of course the NHS is under severe pressure. Winter is always the busiest time of year for the NHS. This winter the NHS and social services have also had to deal with the special pressures brought by the extended millennium period. That is why planning for this winter began earlier than ever before. Local winter planning groups were established in April 1999 in every part of England to co-ordinate the planning and provision of health and social services over the winter and millennium period. Each group includes health authorities, social services, NHS trusts, primary care groups, out-of-hours and deputising services, NHS Direct, police and fire services, CHCs and other local authority departments and the voluntary and private sector.
  "Each local group submitted its plans for dealing with winter pressures by the end of September 1999. These were followed by visits from health and social care professionals from the Department of Health's Millennium Executive Team to ensure the robustness of the plans. We have extended the capacity of local health services to deal with winter pressures. Extra beds have been opened, and over the millennium period, for example, there were 45 per cent more ambulance staff on duty than the year before.
  "Winter planning has also included a major public information campaign. The aim of the campaign has been to encourage the public to use the most appropriate service for their needs—whether that be the local pharmacy and NHS Direct or indeed self-care as a complement to GP or
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  hospital services. The campaign was backed by the BMA, the RCN and the Patients Association among others. All of the evidence we have received to date suggests that the public have responded positively to this campaign by recognising that health services should be used responsibly and appropriately.
  "The campaign was also supported by a large increase in flu vaccinations made available to the public through family doctors. Flu vaccine can never eradicate flu but it can help to provide further protection for vulnerable groups. This winter 8.6 million doses of influenza vaccine were made available: a million up on last year. We do not as yet have uptake levels for flu vaccine this year but we will be reviewing them when they do become available. I have asked the Chief Medical Officer to look at ways to enhance uptake in future years. Increased use of computerised call-up systems is one possibility.
  "Over the last few weeks the NHS has risen to the challenges it has faced. That is not to say that services are not stretched. They are. We owe an enormous debt of gratitude to the staff of the NHS for making sure that services have been there for people when they need them. I hope that the House will want to join with me in thanking them for their efforts over Christmas, the millennium and now into the new year. The staff of the health service have done a quite magnificent job and I know the whole country is grateful to them. They are up against a very serious flu outbreak but I have every confidence that they will go on delivering care for patients where and when they need it".
  My Lords, that concludes the Statement.
  4.28 p.m.
  Earl Howe: My Lords, from these Benches, I thank the Minister for repeating the Statement. At the outset, I pay tribute to the nurses, doctors and other healthcare professionals throughout the country who are devoting their efforts so assiduously to the care of patients with influenza. It is a period of great pressure in many hospitals and at times like these we are glad to rely on the skill and conscientiousness of NHS staff.
  The next sentiment which springs to mind is less happy. It is that we have been here before. What are the data which have led the Chief Medical Officer to classify the current outbreak of influenza, as I believe he has done today, as an epidemic? Is that assessment the result of a collation of recent hospital statistics, together with an extrapolation of reported cases of flu patients who have either visited their pharmacists or are recovering at home having been treated by their GPS? Will the Minister tell the House what is the official definition of an "epidemic"? The figure in the Statement falls quite a long way short of the figure which I thought defined an epidemic; namely, 400 reported cases in every 100,000. I am unclear whether the definition can rest on an extrapolation as opposed to definite reported cases.

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  I turn to the matter of intensive care beds. Can the Minister tell the House how many IC beds there are in the country? He said that there had been an increase of 100 critical care beds, which of course is welcome, but how many of the total number of beds are available and staffed for use as opposed to being available theoretically? How many IT beds are currently unoccupied in London where pressures are particularly severe?
  I have read a report that stated that last Thursday all 275 intensive care beds in London were full. There appears to be a mismatch between beds that are nominally available and those that are actually available for use. Last week it was reported that only six out of the 10 intensive care beds at St Thomas's Hospital were available for use.
  What is the Government's policy towards using the private sector? I believe that in London there are 30 empty IT beds available in private hospitals and yet flu patients are being transferred out of London—sometimes over long distances—to other hard-pressed NHS hospitals. That is a minor scandal which will not appear to be so minor if the patient being transferred happens to be you or a member of your family.
  On vaccinations, can the Minister say what percentage of the elderly population has received a vaccination this winter? Can he expand on what the Statement said regarding a call-up process to vaccinate elderly people against influenza next winter? How far have those plans progressed? Does he recognise the contribution that the vaccination of hospital staff can make to reducing morbidity and mortality? Is he aware of a study in the Lancet which showed that vaccination of hospital staff could save many thousands of lives? Last year, in hospitals where half the staff were vaccinated the overall patient death rates fell to 13.6 per cent compared with 22.4 per cent in hospitals where staff had not been inoculated. How many hospitals offered their staff inoculation this winter?
  I am left a little bemused by the Statement and why it has been made. Is the Statement related to the Government's pledge to reduce waiting lists? As the Statement said, elective surgery has been cut back severely. That may be a sensible response to the flu outbreak, but what penalties will be imposed on NHS trusts that do not meet the targets set by the Government? The Minister knows my views on the Government's waiting list pledge. I believe that the targets are gravely misguided. Can he undertake that such hospitals will not be penalised for failing to contribute to the Government's waiting list targets?
  4.32 p.m.
  Lord Clement-Jones: My Lords, like the noble
  Earl, Lord Howe, I too thank the Minister for repeating the Statement. I also have a feeling of déjà vu On 11 th January last year, the noble Baroness, Lady Hayman, made a Statement of similar length. However, I believe that this year the politics in relation to the practical medical aspects are to the fore. It seems strange that, although there is a rising
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  incidence—rather than an epidemic—the Government have announced that an epidemic is in train. I understand that "epidemic status" means 400 cases in every 100,000 people. Can the Minister explain whether or not we have reached that point or is the Chief Medical Officer simply saying that, although it is not yet an epidemic, if the incidence graph continues to rise at the current rate, we shall reach that situation?
  Before asking the Minister a number of questions, I have to declare an interest. I am one of those winter pressures myself as I saw my GP over the winter Recess. I can testify to the length of the virus as in my case it lasted for four weeks and a day. I congratulate the NHS staff who have been involved, many of whom had to cancel holidays in order to assist with the enormous pressures.
  Every winter it seems that the staff are asked to cope with such pressures and that we have a winter Statement. It appears that it is a tradition, rather like the 12 days of Christmas, that every winter the Government are obliged to make a Statement in a pear tree! Do the Government treat this situation as inevitable, rather like swallows in summer and the wind and rain in winter, or are they actively coping with the matter? On these Benches we cannot help but feel that declaring an epidemic status now is a way of disguising the fact that the Government are not injecting adequate resources into the NHS at the moment. There is no doubt that a full debate on the resources needed by the NHS is required.
  The Government cannot simply apologise when the newspapers have filled their pages with horror stories of people having to travel hundreds of miles for intensive care beds. In some cases, people have died. It is no good the Government apologising to the House and telling us how good a planning process there has been when, in fact, the outcome of that process has been so bad. Can the Government assure us that they will review the way in which those plans were carried out? The Minister has described them, but clearly they have not been effective. There may not have been adequate resources. The scale of the epidemic may not have been contemplated.
  The Minister quoted the president of the BMA. However, I can quote back to him the BMA's GP leader, John Chisholm, who said:
  "The Government is to a certain extent using this as an excuse. Underneath it there is an endemic problem, with the lack of beds and lack of staff to meet the needs of the population".
  Stephen Thornton, the chief executive of the NHS Confederation, which represents hospital trusts, said:
  "It all adds up to the inevitability of a January crisis. Occupancy rates are so high, that when hospitals do get a burst of activity they can't cope. The Government is doing nothing to prevent it happening next year".
  Stephen Thornton is a moderate person. He does not launch into great verbiage. He succeeded the Minister in the role of chief executive. As the Minister knows, in such a position one does not launch into tirades against the Government unless one feels extremely strongly because one depends on a good relationship with the Government.

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  What happened to the beds review? I have asked the Minister that question both orally and in written form. The beds review was designed to see how many beds and, in particular, how many intensive care beds we would need in future. That has long been promised but we have not yet seen it.
  When will the Government end the crude efficiency targets? The NHS Confederation has asked for that in a press release, which says:
  "NHS management is calling for an end to the crude efficiency saving targets that have been imposed on the service by successive governments—starting this year.
  Stephen Thornton … said: 'The NHS is running too fast and hot. NHS hospitals have been encouraged by successive Governments to become more and more 'efficient'. This means that average bed occupancy has gone up from 70 per cent or so in the 1970s to over 90 per cent today".
  What chance do hospital trusts have of coping with that sort of situation? What does the Minister have to say on bed occupancy?
  Can the Minister discuss also the issue of anti-flu drugs such as Relenza? We know that the Government took a firm stance on the subject. Will they reconsider the matter? It appears that such new drugs will have considerable effect at least on alleviating some of the symptoms and will certainly help to get people back to work. When considering the type of flu that the Minister mentioned in the Statement, where periods of incapacity are much longer than they have traditionally been for other strains of flu, it seems sensible to consider expenditure on those types of anti-flu drugs.
  4.40 p.m.
  Lord Hunt of Kings Heath: My Lords, first, I thank both the noble Earl, Lord Howe, and the noble Lord, Lord Clement-Jones, for their tribute to the staff of the National Health Service. The contribution of doctors, nurses, ambulance crew, managers and indeed all staff of the NHS over the past few weeks has been tremendous. I am therefore happy to endorse those tributes.
  Both the noble Earl, Lord Howe, and the noble Lord, Lord Clement-Jones, said that we have been here before. It is certainly true that at this time of the year the NHS is particularly prone to such things as flu epidemics and this year there has been the added pressure of the millennium period. However, the Department of Health in conjunction with NHS trusts throughout the country put an enormous amount of effort into preparations to handle the potential problems that might arise this winter. Those preparations have already contributed greatly to enabling the NHS to meet the problems that have already arisen. The noble Lord, Lord Clement-Jones, referred to my previous career in the health service. I can say that in the 25 years in which I worked in the NHS I have never seen it as well prepared as it has been this winter.
  The question arose as to the definition of "epidemic". As the noble Lord, Lord Clement-Jones, said, the formal definition is 400 patients per 100,000
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  of population consulting their GP in one week. Last week we recorded 144 patients per 100,000 of population, but the levels are still rising. The final peak of activity is likely to reach the 200 to 400 range and it is fair to say that that range can be termed a moderate epidemic.
  Throughout this period our advice to people with flu has been that it is better to stay at home and only to call the doctor if it is really necessary. Those figures are an indication of what is happening and do not aim to catch all cases. The signs are that over the holiday period—this is reinforced by messages we received from the National Health Service—fewer people may have consulted their GP. We have clearly had the added advantage of NHS Direct which, in those areas where it is fully operating, provided an effective alternative to visiting the GP. Also, our campaign, Choose the Right Remedy, encourages patients with symptoms to seek advice from their community pharmacist as an alternative to going to the GP. Therefore if we accept the likely under-reporting of flu-like symptoms because of the effectiveness of NHS Direct and the campaign to encourage people to visit their community pharmacist, there is no doubt that the health service has been under considerable pressure.
  The noble Earl, Lord Howe, asked about the flu vaccine. The vaccine is offered to people of all ages with certain underlying medical conditions such as chronic heart or chest disease; to all people in long-stay residential accommodation; and to all those aged 75 years or over. Those groups are more prone to severe or complicated illness should they contract influenza. This year, exceptionally, the flu vaccine was also offered to NHS staff in order to minimise staff sickness over what we knew would be a pressurised winter period. The noble Earl asked also about the uptake of the vaccine. We will not know exactly who received the flu vaccine until later in the year, but over 8 million doses were made available by manufacturers.
  The noble Lord, Lord Clement-Jones, asked whether Relenza would have helped. Our advice from the National Institute of Clinical Excellence is that Relenza's benefit is limited to merely reducing the average length of illness from six to five days. There is no evidence so far that it provides any specific benefit to older people and those who are most vulnerable to the serious effects of flu.
  The noble Earl, Lord Howe, and the noble Lord, Lord Clement-Jones, asked about the impact on waiting list targets and on the ability of the NHS to withstand the kind of pressures arising at the moment. The Government do not apologise for establishing waiting list targets. It must be a priority of the health service to reduce the number of people on waiting lists. We have done that successfully and will carry on doing so, but not at the expense of providing urgent emergency treatment when that is required.
  The noble Earl, Lord Howe, asked how many ITU beds were available to the health service. He will know that we added an additional 100 this winter, taking the total up to 1,570. In relation to the use of private sector facilities where appropriate, many local arrangements

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  are in place to use the private sector. There has never been any prohibition on NHS use of appropriate private sector facilities. Our understanding is that NHS trusts are in discussions with local private sector operators. We have no objection to that; indeed, we encourage it. In many cases, of course, the NHS is taking back from the private sector intensive care cases which may need the greater expertise and facilities the NHS has to offer.
  The noble Lord, Lord Clement-Jones, quoted my distinguished successor as chief executive of the NHS Confederation in relation to finance. In fact, when the Comprehensive Spending Review was announced, he said it was beyond his wildest dreams. The three-year period of the review brought a considerable amount of extra resources to the health service. That indicates how important we feel the NHS is. It enabled us to expand services and facilities. I am confident that we will continue to see that kind of investment producing further improvement in services. It indicates the importance that the Government place on the National Health Service.
  The noble Lord, Lord Clement-Jones, raised the issue of efficiency targets. Given the size of the NHS budgets, we can never be complacent in ensuring that we spend our resources wisely. It is extremely important that mechanisms are in place to ensure that the service is as efficient as possible.
  4.49 p.m.
  Lord Laming: My Lords, I thank the Minister for repeating the Statement. It may be because I am an innocent, but I was a little surprised that an epidemic only became an epidemic over the weekend.
  However, I add my congratulations to the Government on the way in which they set about planning for the winter. Although the Minister concluded his Statement by rightly expressing gratitude to the staff of the NHS, will he also add congratulations to the staff of the social service departments, in particular the domiciliary care services? They went out of their way and are still doing so to attend to people who are not only house-bound but bed-bound. They are making extra visits and caring for people who often live alone.
  The Minister said that the advice was for people to stay at home and indoors. That seems to be right, but many people who are at home and indoors need extra help, often of a personal nature. In this country we are fortunate to have home carers who go well beyond the call of duty in caring for people who are extremely dependent, particularly at this time.
  Will the Minister acknowledge that local authorities have opened up respite care beds? They have also gone to great trouble to keep services going, even when key staff have fallen victim to the flu themselves. I hope that the Minister will acknowledge the contributions from social care.
  Lord Hunt of Kings Heath: My Lords, as part of the planning operations for the millennium and winter pressure period, I am happy to say that local
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  authorities and social service departments were fully involved. I pay tribute to the tremendous work undertaken. During the Christmas period, I visited a number of social service facilities where staff were being employed and facilities opened. The point made by the noble Lord is relevant.
  As for the preparations made for this winter by the statutory agencies, the most pleasing aspect has undoubtedly been the co-operation at local level between the NHS, general practitioners, local government, social services and all the other agencies in the voluntary and private sectors who have had a part to play.
  Baroness Masham of Ilton: My Lords, is the Minister aware that the deputy headmaster of a successful school near Leeds died over the weekend from meningitis when it was thought he had influenza? Will the Minister try to protect patients who have other conditions so that they are not neglected and sent home after being told it is flu? Does the Minister agree that when there is a big influenza problem, as there is now, extra care in diagnosing symptoms should be taken?
  Lord Hunt of Kings Heath: My Lords, it would be hard to disagree with the noble Baroness, Lady Masham and I was sorry to hear of the case she mentioned. I have no doubt that there are lessons to be learnt in relation to how the NHS responded this winter, not only in terms of planning and preparation but also in terms of the way clinicians and nurses have had to operate. While we must do everything we can to ensure that the right diagnosis is made at the right time, we should also understand the pressures on staff at present.
  Lord Rix: My Lords, does the Minister agree that self-diagnosis with NHS Direct could lead to mistakes of that nature being made?
  Lord Hunt of Kings Heath: My Lords, I understand the point made by the noble Lord, Lord Rix. The signs are that NHS Direct has worked well. Those of us who live in areas where it is available and who have used it have found it to be an effective system. Careful protocols have been developed for use by the highly qualified and professional people on the end of the phones at NHS Direct. We will constantly review the situation to ensure that the right advice has been given, but my judgment is that NHS Direct has been of enormous value to thousands of people who can obtain advice at the end of a phone. In being alert to the issues rightly brought to our attention by the noble Lord, Lord Rix, we should recognise that the introduction of NHS Direct and the recognition of the wider role that community pharmacists have to play in giving advice to the public are enormous gains.
  Baroness Young: My Lords, I agree that we should thank all NHS staff and others who have worked so hard and so well. However, does the Minister agree that there is a serious situation in the country and in

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  the hospital service at this time? We read about in the newspapers and see on television screens patients on hospital trolleys for hours; people being put, I understand, into freezer trucks after they have died because there is no room for them anywhere else; and people waiting hours for treatment. At least one man has died through being taken a long distance to an intensive care bed. Does the Minister agree that it is no use saying that good plans were made if, at the end of the day, such things happen?
  My noble friend Lord Howe raised the important point of the effect on hospital waiting lists and the fact that all those whose operations have been cancelled for weeks, I understand, will add to the backlog. Will the Minister make it clear that hospitals will not be judged as having performed badly? Above all, does he recognise the great concern not only of the patients themselves but of their families over this extreme delay? It is not a time for being complacent about anything. The situation is serious and critical and the Government ought to address the issues more forcefully than they have done so far.
  Lord Hunt of Kings Heath: My Lords, there is no question of the Government being complacent. It was hardly being complacent to set up the kind of preparations put in place over the past few months. There is no doubt in my mind that the preparations have enabled us to withstand tremendous pressure. However, it cannot be denied that there has been pressure on the system and that the public have had to wait. In certain circumstances, as the noble Baroness mentioned, it has caused distress. But the overall impression that we have of how the NHS is responding is that it is busy, but the situation is manageable and is being managed. As ever, we are anxious to learn the lessons in order to ensure that, year on year, we are better prepared. We learnt lessons last year. The previous government learnt lessons over many years in relation to the kind of pressures being faced.
  As for waiting lists for non-urgent treatments, in planning the programme for the year we aimed at a reduction in the number of non-urgent treatments taking place over this period. As regards urgent treatments, of course, along with emergencies, they must be our priority and we are doing everything we can to ensure that patients are treated as soon as possible.
  Baroness Emerton: My Lords, I add my thanks to the Minister for repeating the Statement. I take up the point of waiting lists as chairman of an acute trust. Will the Government make any allowances at all for the slippage in the waiting list target as that target will be almost impossible to meet due to the cancellation of the elective cases? Last week in my trust 64 elective patients were cancelled and this morning 15 were cancelled. This morning we had four empty beds available, one of which had to be allocated to an orthopaedic patient who had been waiting 17 months to avoid exceeding the 18-month waiting period. Twelve patients were waiting for the four beds. If the
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  Government will reassure the NHS that where the pressures are great allowances will be made, that would be a great help.
  I, too, thank the staff. On New Year's Eve I walked around every ward and department. Many of the staff were working double shifts and were extremely tired, but I heard not one grumble. I walked to a street party of 70,000 people. The St John Ambulance staff treated 150 casualties and prevented 70 having to go to the accident and emergency department. I pay tribute to the planning that the statutory and voluntary agencies undertook for that evening.
  This morning, the chief executive, the deputy chief executive, the medical director and the finance director of my trust were all off work with flu. I receive hourly bulletins on what is happening in the trust. It is a serious situation.
  Lord Hunt of Kings Heath: My Lords, the noble Baroness represents a group of people, the chairs of trusts and health authorities, who have carried an enormous leadership load over the past few weeks and months. In paying tribute to the noble Baroness and to the work of her trust, which is much admired, I recognise the pressures not just on doctors, nurses and ambulance crews but also on those in senior management positions and those who sit on the boards of the corporate authorities of trusts.
  As regards waiting list issues, individual trusts will have to consider these matters in the light of their experience over the past few weeks. No doubt there will be dialogue between them and the regional offices of the NHS Executive. We have made enormous strides in reducing the number of people on waiting lists. It is important that over the year we maintain our efforts to continue to do that.
  Baroness Fookes: My Lords, if I heard the Minister aright, he said that there were 8 million "jabs" or doses available. However, as there are far more than 10 million old age pensioners, plus all the NHS staff and all those who may be at risk, is that really an adequate number?
  Lord Hunt of Kings Heath: My Lords, it is an increase on the previous year. As I said earlier, we made arrangements to allow the vaccine to be given to NHS staff. When the information becomes available we shall of course want to look at the figures and consider particularly who took advantage of the availability of the vaccine to determine what lessons need to be learned for future years.
  Baroness Ashton of Upholland: My Lords, on behalf of health authority chairmen, of whom I am one, I thank the Minister for his kind remarks. I believe that the planning has been a huge success. I spent part of the millennium weekend in my part of Hertfordshire working with the staff of NHS trusts and considering intensive care needs. I recognise that the collaboration that occurred between local government, the police

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  and different emergency services made a tremendous difference to the situation. Those who made the plans and the Government are to be congratulated on that.
  I pick up the point made by the noble Lord, Lord Rix, about NHS Direct. Our area has a fully functioning NHS Direct. Due to the protocols involved, the staff err always on the side of caution. Indeed, some of our GPs complain that too many people are referred to them as a result of NHS Direct. That occurs as a result of erring on the side of caution, which we believe i s correct.
  The noble Lord, Lord Clement-Jones, and the noble Earl, Lord Howe, mentioned déjà vu. I do not think that the flu epidemic is the fault of the Government. It is always a problem at this time of the year. All the staff in the NHS have been cautious as regards being exuberant at the success of the service over the millennium weekend. Many have said to me that they have to be sure the service can get through the winter. It is difficult to leave intensive care beds open on the off chance that a flu epidemic may occur. We try to keep our occupancy high because we are trying constantly to treat people. Therefore, when an epidemic arises—I am delighted that the Government have declared an epidemic so that we know what we are dealing with—we have to ensure that we can work together to resolve the issues. I congratulate all the staff, including t lose with whom have had the privilege of working in the past week, many of whom have worked on their days off, and the Government on the planning that has been undertaken.
  Lord Hunt of Kings Heath: My Lords, I am happy to endorse the remarks of my noble friend. I wish to make two points. Notwithstanding the serious pressures on the NHS, I believe that the service is better prepared for such pressures this winter than has ever been the case before. I refer to the point made by my noble friend as regards the use of NHS Direct. I believe that the service is well placed to respond to pressures such as a flu epidemic. Nurses taking a call can identify quickly those callers who might be at greater risk, such as those with respiratory problems, who may need professional help. In other cases, nurses have been able to give basic advice on the need to rest and to drink plenty of fluids, and on basic medication. We shall need carefully to evaluate how the service has worked at this time of pressure. However, I believe that the evidence we have seen so far will vindicate the service and show that it has been a source of enormous help.
  Lord Geddes: My Lords, is the Minister able to answer the question of my noble friend Lord Howe regarding the difference, if any, in theory and practice, as to the availability of intensive care beds?
  Lord Hunt of Kings Heath: My Lords, I believe that I mentioned the more than 1,500 intensive care beds which were available. As regards the whole country I do not have the information on whether at any time any could not be used for whatever reason, for example, staff shortages. The NHS has been careful to plan the most intensive possible use of those beds. We
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  have had information on the daily bed numbers available. We have kept a close check on the availability of those beds. At the end of this period we shall evaluate the numbers that have been used and learn what lessons we can for future years.

  Care Standards Bill [H.L.]
  5.8 p.m.
  House again in Committee.
  Clause 3 [Care homes]:
  Lord Clement-Jones Lord Clement-Jones moved Amendment No. 7:
  Page 2, line 42, after ("with") insert ("clinical,").
  The noble Lord said: We now move to Clause 3 which sets out for the purposes of the Bill the definition of a "care home". That effectively brings together the definitions in previous legislation of a "residential home" and of a "nursing home". There is some concern—this is interesting in the light of our discussions on the Statement—that when considering care homes the whole issue of clinical governance will not be considered. For that reason, Amendment No. 7 proposes the insertion of the word "clinical" after "with" on line 42, page 2.
  There is an increasing trend for nursing homes in particular to be used to treat NHS patients. When a hip is replaced in an NHS hospital as part of the treatment episode, the patient may be discharged from an NHS hospital to a private nursing home for rehabilitation. I am told that around the country winter pressure money is being used to purchase space in care facilities in order to release beds in the acute sector. That, of course, is of great relevance to what we have been discussing. If the word "clinical" is not inserted in the clause, can the Minister say what procedures would be in place to assess the clinical care delivered to individuals transferred to care homes from hospital as part of their treatment episode? Can he also explain what plans there are to implement clinical governance procedures in the social care setting when doctors and nurses carry out clinical procedures in such care homes? That is precisely what the amendment seeks to elicit.
  A further concern has been brought to my attention: the bringing together of the definition of a residential home and a nursing home may well allow, in some back-door way, means testing to be applied across the board. At the moment, nursing homes are means tested but residential homes are not. Can the Minister give a specific assurance—I am not sure that this was delivered on Second Reading—that there will not be any effect on means testing pending the outcome of enquiries such as the Royal Commission on Long-Term Care? I beg to move.
  Baroness Pitkeathley: I would be concerned about the inclusion of the word "clinical" in the clause for fear that it would further narrow the definition. It seems to me that in the Bill we are attempting to apply standards, in so far as we possibly can, across the board as regards care in all settings. I would be

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  concerned that the use of the word "clinical"—which has a medical connotation, a medical connection—would too much narrow the definition.
  Baroness McFarlane of Llandaff: I am grateful for the letter from the Minister following Second Reading which clarified for me some of my anxieties about this part of the Bill. I welcome the single registration system for nursing and residential homes. It should lead to a much more flexible system which is better able to provide care tailored to the patient's needs.
  However, I ask the Minister for some clarification about the financial implications of this provision for patients. As we know, at present nursing care provided in nursing homes is means tested, whereas all other health care, such as that provided in residential homes, acute and community hospitals and people's own homes, is provided free by the NHS. We seek some clarification and ministerial assurances that this change in the Bill will not be used to extend means testing of nursing care by the back door.
  Lord Hunt of Kings Heath: The amendment of the noble Lord, Lord Clement-Jones, seeks to bring an establishment which provides only clinical care and accommodation within the definition of a "care home". Clause 3(3) excepts hospitals and independent clinics from the definition of "care home" as they are defined elsewhere.
  This does not mean that other key services for vulnerable people will fall in a gap between the definitions of care home and of independent hospital or clinic. For example, a hospice which provides palliative care would be covered within the definition of an independent hospital under Clause 2(6) as providing a listed service. Independent clinics and hospitals, as they are defined in Clause 2, are distinct services from care homes, and the Bill is drafted to allow different regulatory provisions to be made in respect of such services.
  Regulations and standards will be needed for independent hospitals and clinics which relate to the provision of their particular services—for instance, the staffing required in terms of doctors and nurses in establishments carrying out surgical procedures under general anaesthesia.
  Care homes will often provide a permanent home for their residents and so regulations will be needed to ensure that facilities and services are provided that would ordinarily be available to residents if they were in their own homes—clothes laundering, for instance.
  So far as concerns the question about means testing and definitions, I do not believe that these provisions will have any impact on those issues. The registration process and the registration certificate that will be given to particular homes will specify the kind of home as which they are registered. If a home was a nursing home, it would continue to be registered as a nursing home. Therefore, the application of means testing would continue as heretofore.
  5.15 p.m.
  Lord Clement-Jones: I suspect that the Minister has moved on from the previous point about the clinical care carried out within a care home but, unless I misheard, I do not think that he said what system of regulation there will be with regard to clinical care carried out within a care home—for instance, the kind of rehabilitation and transitional care I described earlier. What regulation applies in those circumstances? That is what the amendment seeks to elicit.
  Lord Hunt of Kings Heath: That will very much relate to the regulations and the national minimum standards that will follow from them, and the role of the care commission in inspecting those homes. The definition of a "care home" in Clause 3 is that an establishment is a "care home" if it provides accommodation, together with nursing or personal care, for the persons listed. If in such a home clinical provision was being carried out, as I mentioned in relation to a hospice, it is most likely that that particular institution would be registered as a hospital. But clearly there are judgments to be formed, on the basis of both the regulations and the national minimum standards, in relation to whether an establishment is a care home as defined or an independent hospital.
  Baroness Masham of Ilton: Before we move on, perhaps I may further press the Minister about the definition of residential homes. Do residential drug and alcohol rehabilitation facilities come under this clause?
  Lord Hunt of Kings Heath: Clause 3 of the Bill specifies that,
  "an establishment is a care home if it provides accommodation, together with nursing or personal care, for any of the following persons".
  That includes,
  "persons who are or have been suffering from dependence on alcohol or drugs".
  Lord Clement-Jones: I thank the Minister for his reply. I welcome his assurance about the means testing status quo, so to speak. I am no nearer feeling that I have had an answer about the clinical governance aspect. I recognise that the noble Baroness, Lady Pitkeathley, may have reservations about the particular expression in the amendment.
  The amendment seeks to elicit an answer from the Minister about the kind of clinical governance regime that will apply to clinical care when it is provided within a care home. Following the Minister's reply, I am no nearer feeling that there is an answer than I was earlier. The Minister seemed to say that such a home has to be defined as an independent hospital before the clinical governance regime can take place. In this amendment we are talking about situations which may be thought of as half-way houses. That brings us back

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  to the old chestnut we discussed earlier; that is, the question of seamless clinical governance between all sectors.
  Lord Hunt of Kings Heath: I thought that the main issued being raised here by the noble Lord was the question of an establishment that might fall under the category of a care home or under the category of an independent hospital. I have been trying to make it clear that the care standards commission will need to make judgments according to the regulations and the national minimum standards laid down as to how a particular home is to be registered. In the registration document, specific reference will he made to the services that are to be offered in that particular establishment.
  As regards clinical governance, as it were, in care homes, inspectors will visit both residential care homes and nursing homes to check on the healthcare provided to ensure that it is appropriate. I can assure the noble Lord that regulations and standards relating to such provision of healthcare will be laid down. I hope that I have now addressed the noble Lord's queries a little more clearly.
  Lord Clement-Jones: I thank the Minister for that reply, but I am afraid that I must reply, "Not really" to his last comment. I shall read carefully all his responses in Hansard. However, we may well return to the issue because the point here is not only the precise definition of a "care home". We must be assured that a regulatory regime will apply just as much to the social care being provided within those establishments as it will to the provision of healthcare. It is vital that we achieve the right balance.
  One problem in the Bill is that of trying to match the two halves of social care and it is a key issue that we must face as we progress through our discussions. In the mean time, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Rix Lord Rix moved Amendment No. 8:
  Page 3, line 2, leave out ("suffering from illness") and insert ("ill").
  The noble Lord said: At the Second Reading of the Bill, befuddled though I was by the dreaded lurgy— although I was one of the 8 million who had the jab—I hope I made it clear then how much both I and Mencap, of which I am president, welcome this landmark Bill. For that reason, noble Lords may wonder why I have tabled so many solus amendments. Quite simply, I want to make certain that the improvements in standards for social services and the new safeguards being offered to service users apply equally and appropriately to one of the most vulnerable groups affected; namely, people with a learning disability.
  I have had the privilege of submitting a paper regarding those concerns to the Minister, as well as having a lengthy meeting with him and his officials, at which they were most helpful. As a result, I have tabled
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  28 amendments which appear to be alone and palely loitering, but I believe that the Minister will be well prepared with his responses and I can only hope that those will be favourable.
  In speaking to Amendment No. 8, perhaps I may speak also to Amendments Nos. 9 and 10. The amendments to this clause all seek to remove the word "suffering" from the statutory definitions used in the Bill for people with disabilities, illnesses or substance dependence. I do not doubt that we can all cite examples of people who have indeed suffered within the context of all three sets of circumstances; none the less, I do not believe suffering to be integral to any of them. At best the term is superfluous and at worst it is confusing.
  My particular concern is with the use of the word "suffering" in relation to people whose disability constitutes impairment of the intellect or a learning disability. As I have outlined on many occasions, suffering indicates the endurance of pain and implies the possibility of eventual cure, neither of which are normative expectations of people with learning disabilities. The noble and learned Lord, Lord Williams of Mostyn, was good enough to remove the term "suffer" from the definition of disability used in the Youth Justice and Criminal Evidence Bill in the previous Session. I hope that that will be accepted as a precedent and I urge the Minister to do the same in the context of this legislation. I beg to move.
  Lord Jenkin of Roding: When I read the amendment and found that I agreed with it, I am afraid that I had not appreciated the intricacy that lay behind it, which the noble Lord, Lord Rix, has just explained to the Committee. In my innocence, I thought that the noble Lord was engaged in a proper process of using the English language correctly; namely, using one word instead of three. I was prepared to applaud that and wondered whether I should have worked through the Bill with the same kind of toothcomb. The tendency to use convoluted phrases rather than simple English is something to be deplored. If that was all that the noble Lord, Lord Rix, was seeking to remedy with his amendment, he would have my full support.
  However, that is not all. The noble Lord has made another most important statement. Those of us who have had responsibility for organisations that look after people suffering from handicap of whatever kind would simply say that "suffering" is not the right word to use. It is therefore for two reasons that I hope that the Minister will be able to make a short speech to tell the Committee that he will be happy to accept all three amendments. I believe that they have a great deal to commend them.
  Lord Addington: The noble Lord, Lord Jenkin, has already said much of what I was going to say. However, I should like to emphasise that when you have a disability, you generally have that disability for life or for the long term. "Suffering" and "illness" are confusing words in this context and they put out the wrong message. They also suggest that a person will get better. We are referring here to hidden disabilities,

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  which are not dealt with directly in the Bill but are often referred to elsewhere. We must remember that legal language always makes reference both backwards and forwards through legislation. If one is suffering from an illness, one may recover from it. However, with a disability it is more likely that coping strategies will be developed. For that reason, if any ambiguity can be removed from the face of the Bill, that will aid not only the legislation before us, but also other Bills in this area. Furthermore, I can only concur with the noble Lord, Lord Jenkin, that one word is invariably better than three.
  Lord Laming: I rise briefly to support the amendment tabled by my noble friend Lord Rix. I shall not detain the Committee as it has already been clearly stated that two strong reasons have been given in support of it. The amendment certainly has my support.
  Lord Hunt of Kings Heath: I shall be brief. I fully understand the desire of the noble Lord, Lord Rix, to ensure that the wording of the Bill is as modern as possible when describing people who receive care services.
  If the noble Lord will allow me, I shall take this amendment away and discuss the exact wording with him between now and Report stage. We shall then ensure that the Bill is rectified in due course.
  Lord Rix: I shall be happy to accept the proposal of the Minister so long as we agree that one word should be used rather than three. I am sure that this marks the beginning of a happy new year so far as concerns the Care Standards Bill and I hope only that my other amendments will be accepted as speedily and with such aplomb by the Minister. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 9and 10 not moved.]
  Clause 3 agreed to.
  [Amendment No. 11 not moved.]
  5.30 p.m.
  Clause 4 [Other basic definitions]:
  Lord Clement-Jones Lord Clement-Jones moved Amendment No. 12:
  Page 3. line 11, at end insert—
  ("( ) "Home-based health care agency" means an undertaking which consists of or includes arranging the provision of health care that requires the supervision of a registered nurse or doctor in their own homes.").
  The noble Lord said: The next group contains a large number of amendments. I shall speak to all of them except Amendment No. 17 standing in the name of the noble Lord, Lord Rix. The intention of my amendments is to draw attention to the number of gaps in Clause 4. Voluntary organisations are concerned that, as presently drafted, Clause 4 does not include some establishments that should be included.
  I am looking for the Minister's reaction to the establishments which we have set out in our amendments.
  Amendment No. 12 deals with the home-based care agency, which we define as meaning,
  "an undertaking which consists of or includes arranging the provision of health care that requires the supervision of a registered nurse or doctor in their own homes".
  We are talking here about home care, which in many ways seems to lack regulation in terms of the Bill.
  Amendment No. 13 deals with respite care. I shall not go through the full definition. If, before tabling my amendment, I had seen the amendment of the noble Lord, Lord Rix, I certainly would have taken on board that much shorter and more desirable form of words. It is necessary to regulate respite care, which is not currently covered by the Bill.
  Of even greater importance is the question of sheltered housing. Voluntary organisations in this sector are concerned that some close care sheltered housing might be care homes in disguise and might well become so in order to avoid inspection. The provision of such housing is growing and it is often financially driven because housing benefit is available. But people being cared for in that setting are frail and vulnerable and deserve the same protection as that afforded to those in care homes.
  Amendment No. 16 deals with daycare centres, in relation to which there is a major hole in the Bill. Our definition may not be the most felicitous, but we have tried to bring in the kind of daycare that is generally thought of as being such. We do not understand why such daycare centres are not being brought within the terms of the Bill.
  The other amendments in the group are by and large consequential except those dealing with nursing agencies. This issue has given rise to considerable discussion, particularly within the nursing organisations. Clause 90 abolishes the Nurses Agencies Act 1957, which required nursing agencies to be inspected and listed and that the placing of nurses by an agency should be supervised by a registered nurse. However, local authorities were applying the Act patchily and at least one local authority was not aware that it was supposed to be carrying out those duties. The intention of our amendment is that nursing agencies should be regulated in the same way as doctor and other medical employment agencies are regulated under the Employment Agencies Act. However, if that was followed through in the Bill, it would mean that the requirement for agencies to inspected, listed and supervised by a nurse would be lost.
  We believe that that would be undesirable and that the requirement should be retained. The amendment would require nurses to be registered and inspected by the commission and would allow, under regulations, for nurse supervision of that. We believe that there are significant differences between the operation of nursing agencies and agencies supplying doctors. A nursing agency will supply nurses often at very short notice and often for very short periods—sometimes for just a few hours. In those circumstances, it is not

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  always possible to ensure that the nurse is qualified and suitable for the placement. For doctors, it is normal for CVs to be sent by the agency to the client and for placements to be of a longer duration.
  There is significant concern, particularly in the voluntary sector, that there are gaps in the Bill. I look forward to the Minister's response to the amendments. I beg to move.
  Earl Howe: I rise to speak to Amendment No. 15, which stands in my name. The amendment is identical in spirit to Amendment No. 12, to which the noble Lord, Lord Clement-Jones, has just spoken, although, with all respect to him, the wording of that amendment reads a little oddly as it suggests that the relevant home-based healthcare is provided in the home of the nurse or doctor, which of course is not the case.
  I wish to re-emphasise a key point. Healthcare provided at home is becoming increasingly common. I refer not just to day-to-day nursing care but to often highly intensive and sophisticated medical procedures. The care of people in their own homes rather than in a hospital or a nursing home is to be welcomed. I believe that the Government are in agreement with that. The Bill should reflect current developments in healthcare. I urge the Minister to consider this issue with particular care.
  A point closely allied to that is the need to regulate healthcare assistants engaged in delivering healthcare at home. I shall talk more about healthcare assistants when we reach a later group of amendments. Suffice it now to say that if both they and the work that they are doing for people in a domestic setting are unregulated, that runs directly counter to the theme of the Bill.
  Lord Jenkin of Roding: I suggest that these are amendments to which the Government will wish to give a good deal of thought. I referred earlier to the Forest Healthcare Trust, of which I used to be chairman. The trust ran a hospital-at-home service. Such services are becoming more and more common as a way of relieving the pressure on beds within hospitals and in many cases giving patients a very much better service in the familiar surroundings of their own homes. In fact our experience was that they received a much better service in the hospital-at-home.
  I remember one dreadful case. I need not go into the details but it was the only case where I felt it right, as chairman of the trust, to sit through the whole of the coroner's hearing on the patient, who had in due course died. There had been rather deplorable treatment in the hospital, amounting to quite serious neglect. The patient was sent home to a hospital-at-home and the nurses immediately recognised what had gone wrong. The family said that under no circumstances did they want the patient to go back to hospital, but the person actually died of other causes.
  The hospital-at-home is becoming a valuable service, but it needs to be effectively regulated. The example to which I referred came wholly under the NHS and therefore would come within the Minister's definition of "management". But it could equally well have been a
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  service which the trust had contracted out to a private concern. In those circumstances, regulation should he applied because it is not always the case that the trust contracting out will have the resources properly to assess the value and quality of the care being given. Exactly the same can happen with respite services.
  There is also the question of psychiatric services. It is increasingly the case that psychiatric care is given to patients in their own homes. There has been a transition— from doctors and nurses who have been used throughout their careers to a ward-based service in large psychiatric hospitals to a system of delivering psychiatric care in the patient's own home. Here again, if it is an NHS service, no doubt the NHS management and the CHI will provide a proper form of quality control. But if that service is contracted out—the Minister has already referred to the fact that a good deal of psychiatric services are now provided by independent concerns—it is all the more important that there should be effective regulation.
  The noble Lord, Lord Clement-Jones, is on to a good point with at least some of these proposals. I hope that the Minister will take them away and examine them carefully. In a Bill that is supposed to bring the whole system under a single, common national standard of care, we do not want to find ourselves with any gaps.
  Lord Rix: Before speaking to my Amendment No. 17 which is included in this grouping, perhaps I may say to the noble Lord, Lord Clement-Jones, that I hope, if he proceeds with Amendment No. 13, he will take the advice of his noble friend Lord Addington, so that the subsections appear in plain English and use one word instead of three.
  Amendment No. 17 seeks to provide a definition of day services to allow for their inclusion within the standards, registration and inspection provisions contained in the Bill. I believe that it will be of some help to the Minister and his department.
  One of the great strengths of this legislation is that it seeks to bring coherence to the hitherto unco-ordinated registration and inspection regimes, which are often not comprehensive. I believe that the Bill 'will bring greater co-ordination to the social care sector and that it goes a long way to making the system more comprehensive. But with the exclusion of day services, it simply does not go far enough.
  At Second Reading, I cited the example of a day centre in Sheffield where physical and sexual abuse had gone undetected over many years. It is our responsibility to act upon the evidence. I do not believe that there is a palpable distinction between residential services and day care services in terms of vulnerability and risk; indeed major independent inquiries such as the Longcare abuse inquiry in Buckinghamshire have also recommended that inspections should be extended to day services. Adults with learning disabilities spend substantial proportions of their everyday lives in services which are not registered, not approved, not checked and not accountable. That

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  state of affairs must change. I should welcome the Minister's assurance that the political will exists to effect that change.
  Lord Laming: Perhaps I may make three brief points. First, respite care is a feature of many care establishments. It depends whether Clause 3 of the Bill as presently drafted incorporates both short and long-term care. If it incorporates both, it should incorporate respite care. If it is intended to convey only long-term care, the amendment proposed by the noble Lord, Lord Clement-Jones, seems essential. If I may say so with good grace, Amendment No. 15 seems to be an illustration of the difficulties that will remain throughout the Bill if Clause 2 stands.
  As regards Amendment No. 17, I, too, am surprised that day services appear to have been excluded from the regulation and inspection system. The wording of Amendment No. 17 is extremely helpful.
  Baroness Masham of Ilton: Perhaps I may add a word about those who live at home and have carers. I implore the Minister to do something about regulation of the agencies and possibly the carers. The situation is impossible at present. Charges are extraordinary. In some agencies there is no regulation at all. Some charge an amazing amount. Perhaps I may talk to the Minister outside the Chamber about this matter. We need to employ two, if not three, carers for my husband. Some agencies are exceedingly good; some are very dangerous. There are many vulnerable people living in their own homes under a tremendous amount of medication and getting into serious difficulties. There is no regulation as regards people who may be alcoholics coming in to work. So much needs to be done. But it is the expense of care in the home which causes problems. I hope that during the passage of the Bill we shall be able to do something about it. I have sent some information to one Minister regarding the regulation of care homes. The matter needs addressing. If, at this very moment, all the New Zealand, Australian and South African people went home, very vulnerable disabled people would have a real problem.
  5.45 p.m.
  Baroness O'Cathain: I note the comments of the noble Baroness, Lady Masham. I have some experience of the issue and support every single word she said. There are serious problems. For example, when I asked one carer who was sent into my home about her training, she said, "I used to work in an electronics factory. I happened to pass by the care agency last Saturday and the people there said, 'There's a lovely job going. Would you be prepared to do it?'" It was ludicrous. She had no idea at all of how to cope with a disabled person. There has to be some regulation.
  Baroness Pitkeathley: That will be precisely the function of the general social care council, when it is set up. All those workers will be regulated and inspected.
  Lord Hunt of Kings Heath: Perhaps I may turn first to Amendments Nos. 12 and 22 tabled by the noble
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  Lord, Lord Clement-Jones. I am grateful to the noble Lord for explaining the purpose of his amendments. It was not entirely clear from the drafting, which, as it stands, could be taken to include general practitioner home visits and district nursing services.
  I listened with great interest to the noble Lord's points about home-based care agencies and to the more general points raised about issues relating to private medical services undertaken in people's homes. Rather than say any more about the matter at this time, I should like to reflect on those issues without any commitment at this stage and take on board the comments made. No doubt we can debate the matter again on Report. Some important issues have been raised which require reflection.
  Amendments Nos. 13 and 20 offer a definition of a "residential respite care establishment" and require such establishments to be registered. I am in full agreement that care homes which provide care on a short-term basis should be registered in the same way as care homes which provide people with permanent accommodation and care. It is certainly the intention that such respite centres should be registered with the national care standards commission, and the definition of "care home" in Clause 3 of the Bill is wide enough as it stands to cover that type of establishment.
  The definition reads:
  "an establishment is a care home if it provides accommodation. together with nursing or personal care, for any of the following persons",
  and subsection (2) lists those who will come under the provision. The word "accommodation" is not qualified in any way, so I assure noble Lords that it would cover accommodation for as little as one night only. In other words, any establishment which offers nursing or personal care overnight for the categories of persons listed in subsection (2) of Clause 3 will need to be registered as a care home. I hope that I have managed to reassure the Committee on that point.
  Amendments Nos. 14 and 21 define a "close care sheltered housing establishment" as being an establishment which provides people who are ill, disabled, infirm or dependent on drugs or alcohol with accommodation together with personal care or nursing—but not board—and require such establishments to be registered.
  In the Registered Homes Act 1984, a residential care home is defined as an establishment which provides accommodation together with both board and personal care for persons in need of it by reason of old age, disability, past or present dependence on drugs or alcohol or past or present mental disorder.
  We are aware that this current definition is unsatisfactory. We know that there are establishments which provide accommodation and personal care for vulnerable people and which are to all intents and purposes residential care homes but which escape the requirement to register because they do not provide board. For example, they may make residents pay for their meals each day rather than include food in the overall contract price. We do not believe that that is acceptable. The Bill therefore offers a new definition of

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  "care home" as an establishment which provides accommodation together with nursing or personal care only. There is no longer any mention of "board". Therefore, in future, even if board is not provided, such establishments will be required to register as care homes.
  I turn to Amendments Nos. 14A and 22A which concern nurse agencies. Under our proposals nurse agencies will have a level playing field regulated by the same system as other employment agencies, including all those supplying other healthcare professionals under the Employment Agencies Act 1973. I have listened with care to the points raised. I believe that to suggest that nurses agencies should be registered and inspected in addition to complying with the provisions of the 1973 Act may be taken to imply that nurses are less professional than other healthcare professionals. I am sure that that is not the intention of the Committee. We shall ensure that should any additional safeguards be needed they will be put in place. for example, through codes of practice for employers. I am convinced that what we propose for nurses agencies will provide better protection for employers, the nurses engaged by agencies and vulnerable people while also minimising the regulatory burden on business. I hope that I have reassured noble Lords on that matter.
  I turn to Amendment No. 15. The new regulatory framework for domiciliary care is designed specifically to include care that is of a personal and non-clinical nature. It is not our intention to confuse this with nursing or clinical tasks which involve a fundamentally different training and skill profile. We believe that that would distort the nature and purpose of the domiciliary care regime and stretch it so widely that it would lose its focus and impact. That focus is specific to the needs of domiciliary care which is essentially a sector with extremely low levels of training and qualifications. The domiciliary care regulation scheme will be a powerful driver to address that deficiency. On the other hand, nurses are highly qualified and registered professionals with professional responsibility for their own clinical practice. I do not believe that to extend domiciliary care regulation to nursing and clinical services is a helpful move.
  I turn finally to Amendments Nos. 16, 17 and 19 which all deal with day care services. However, Amendment No. 17 has a wider definition than Amendment No. 16. I am conscious that there is disappointment that day care services are not included in the services to be regulated when the national care standards commission comes into force and starts its work. I hope the Committee accepts that that is in no way because of lack of concern for people with, say, learning disabilities, who are major users of such services, or the quality and standards of day care. It rests upon the practical question of what we can sensibly expect the commission to do when it takes on its considerable and very important responsibilities. In addition to its responsibility for the many thousands of care homes and other services which are already regulated, the commission will be given responsibility for regulating a number of new services not previously
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  regulated. This represents a very significant extension of the scope of regulation. We believe that that is as much as we can expect it to deal with at the beginning of its life. We do not want to overload the commission. We believe that it must be allowed to concentrate on carrying out its new duties effectively. We shall, however, keep the remit of the commission under review.
  Clause 39 allows the Secretary of State to extend the provisions of Part II to other social care services equivalent to those which may or must be provided by local authorities in the exercise of their social services functions. It may be that in time other services, such as day services, will be brought within the scope of regulation. Certainly, the inclusion of such a clause in the Bill means that we have day centres in mind as a likely example. We have said as much in the Explanatory Notes. Although the noble Lord, Lord Rix, may press me, I cannot at this stage give an absolute assurance as to when this may happen. We must be careful that we do not ask the national care standards commission to undertake an impossible task with the risk that it simply cannot cope and vulnerable people are put at risk.
  Before I conclude, I note the different definitions of day care in the amendments. I believe that the wider definition of day services, which may include a number of dispersed services not attached to any particular facility and not specific to those who receive care, will present significant difficulties in terms of boundaries. Regulation must always be appropriate, targeted and proportional. But I have already had a very helpful discussion with the noble Lord, Lord Rix, about this matter. There may be workable ways to define the tasks. That is one of the issues that will need a great deal of work and consultation before the Government can use Clause 39 to add such services to be regulated by the commission. I hope that the noble Lord is assured as to the possibilities of including day care in the regulatory system and will therefore not press his amendment.
  Lord Rix: Perhaps I may intervene on the question of the inspection of day care services. Obviously, I am disappointed that for the moment the Committee cannot obtain from the Minister a direct promise. The Minister used the expression "in time". That fills me with slight perturbation. It may mean when I am dead and gone. I believe that the need to regulate and inspect day care services at the very earliest moment is as great as for any care homes or housing. The scope for abuse in day care services is limitless. I told the Minister of a court case in the London area that occurred only three or four years ago in which, in the context of day care services, a young woman had been constantly sexually abused by a man. I hope that during the passage of the Bill through this House the Minister will be able to return to the Dispatch Box and give a slightly more definitive statement as to the future inspection of day care services rather than the expression "in time".
  Lord Jenkin of Roding: I endorse the observations of the noble Lord, Lord Rix. I believe that the general

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  power in Clause 39 includes a number of activities which may not yet be in contemplation. We are dealing here with a whole group of vulnerable people. We have an ever-expanding population as people live longer and no doubt an ever-growing range of services may be available to it. To ensure that Clause 39 takes account of those matters which are not at present in contemplation is very sensible. It may well be that we shall want to consider whether it should be subject to affirmative rather than negative resolution. Nevertheless, it is there.
  As to day care services, I believe that the noble Lord, Lord Rix, makes a very important point. I should like to consider whether an amendment can be tabled at a later stage of the Bill to place the Government under an obligation to extend the provisions of the Bill to day services so that we are not left with the rather vague and slightly depressing "in time". As Shakespeare said,
  "In time the savage bull doth bear the yoke".
  But that might be a very long time. I believe that the case made by the noble Lords, Lord Rix and Lord Clement-Jones, is a very strong one and I hope that the Government will reflect upon it.
  6 p.m.
  Lord Laming: Experience has shown that legislation is not always implemented on the first possible day. Getting something into legislation which can be implemented when the commission is able to take it on seems an entirely sensible proposition.
  Baroness Masham of Ilton: Perhaps I may ask the Minister about means testing. I believe he said that a care home with nursing was means tested.
  Lord Hunt of Kings Heath: I was asked whether the new regulatory system would have an impact on the current arrangements for means testing. I said that the process of registration and the registration certificate would specify the type of home. If it were a nursing home, it would be specified as a nursing home. Therefore, that would not have an impact on the means testing arrangements currently in place or on the distinction between care homes and nursing homes.
  Baroness Masham of Ilion: Is it correct that a care home is not means tested, whereas a residential home is?
  If someone has to be in a home for weeks, who pays the mortgage and electricity bills, and the expenses of the children, or does the individual come out with large debts? If he is disabled and goes into hospital and perhaps into residential care, he loses his benefits. What happens when the bills pile up?
  Lord Hunt of Kings Heath: The noble Baroness widens the debate somewhat. The Government appointed a Royal Commission on Long Term Care to consider some of the issues and the pressures on people faced with that situation. The noble Baroness will know that the Royal Commission reported some
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  months ago with a majority report and a minority report. The Government are considering how we respond to that.
  Lord Clement-Jones: It has been an interesting debate. Noble Lords have demonstrated, as always, their understanding and expertise in these areas.
  The Minister's reply was welcome in some respects. He said that he would consider whether there were any gaps with regard to home-based healthcare agencies. He believed that respite care and close care sheltered housing establishments were caught by the terms of the Bill. I shall read carefully his words in Hansard.
  The Minister also said that the necessary safeguards as regards nursing agencies would be put into regulation. I hope that regard will be given to the 1957 Act, aspects of which should be duplicated in the regulations. I refer in particular to inspection by a registered nurse. It may be right that the general framework of regulation should not be different but perhaps the system of inspection should vary from one type of agency to another.
  The big disappointment—it has been expressed by other noble Lords—relates to day services. My amendment does not go as far as the amendment tabled by the noble Lord, Lord Rix. I prefer to be associated with the noble Lord's amendment. It is spot on with regard to the needs of those going out into the community from their care homes. That situation must be regulated by a certain date. The noble Lord Jenkin remarked that it was not good enough to say that at some stage in the future the matter will be regulated. During the course of the Bill we should like an undertaking from the Minister that day services will be regulated at the earliest practicable moment. We understand about work loads. However, we should like a definition in the Bill. Then Clause 39 can be triggered at the earliest practicable moment. That is the solution towards which we are aiming. As we move towards Report stage and Third Reading, I hope that it will commend itself to the Government. In the mean time, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  ]Amendments Nos. 13 to 22A not moved.]
  Clause 4 agreed to.
  Clause 5 agreed to.
  Clause 6 [National Care Standards Commission]:
  Baroness David Baroness David moved Amendment No. 23:
  Page 4, line 20, at end insert—
  ("( ) It shall be the principal aim of the Commission to secure and promote the well-being of those cared for under the provisions of Part II of this Act.").
  The noble Baroness said: Grouped with Amendment No. 23 standing in my name are Amendments Nos. 30, 45, 53, 65, 71 and 151 standing in the names of other noble Lords.
  Amendment No. 23 introduces a principal aim for the national care standards commission. The amendment seeks to set in primary legislation the fact that the first duty of the national care standards

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  commission should be towards the users of services—children, elderly people, and those with illnesses or disabilities—rather than the service providers.
  The wording follows that used under Sections 37 and 41 of the Crime and Disorder Act 1998 in relation to the principal aim of the youth justice system and the corresponding duties of the Youth Justice Board. The principal aim under that Act was to prevent offending by children and young persons. The principal aim under this amendment is even simpler: to promote and secure the welfare of those who are cared for under the provisions of Part II of the Act.
  The point of placing the commission under this primary duty is to make its job clearer and therefore easier. Without such a principal aim, other important considerations such as cost, staff morale, public/private management, or media or political opinion might have equal claim. Under Clause 7 the commission is placed under the vague general duties to inform the Secretary of State on availability and quality of services and to encourage improvement in that quality.
  "Quality of services" is a phrase which can be used to defend all sorts of practices—for example, financial cuts under the name of efficiency—and needs greater precision, which the amendment provides. I hope that the Minister will look kindly on the amendment. I beg to move.
  Earl Howe: I support the amendments. I speak in particular to Amendments Nos. 45, 53, 65 and 151. In the first instance, some of us approached the Bill in a state of high expectation only to find that it has a number of gaping holes, one or two of which have been mentioned. However, one of the most serious is the absence of any duty on the part of the national care standards commission to monitor clinical standards or to promote quality of care for patients in private hospitals. Indeed, from reading the Bill one could be forgiven for wondering where the well-being of the service users came in. That is why I identify myself with the remarks of the noble Baroness.
  The Government's quality agenda should be all embracing. It should not be confined only to the public sector. Maintaining high standards should be an across-the-board objective. That was my complaint during the passage of the Health Bill. Ministers apparently believe that the main issue for government is the protection of private patients. With respect, that is no more than a tiny fraction of the issue. Standards in the private sector are high. Everyone wants them to be even higher. But what the Bill says is that for all practical purposes it is up to the private sector to deliver whatever standards of healthcare it wants. We have moved far beyond that stage. Indeed, I do not think that people understand the attitude that if it is not done in the NHS, it somehow is not proper healthcare. That attitude is plain silly as well as being a slap in the face to the private sector.
  The point of giving the national care standards commission a duty to publish statistics relating to its remit, and combining that with a duty to promote
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  quality, is to ensure that standards of healthcare in the private sector will be capable of being assessed on a like-for-like basis with those in the NHS. That, in turn, will promote a verifiable consistency of standards in both the private and public healthcare sectors, which we all want to see.
  Private hospitals also have a duty to play their part in informing the public. That is why I tabled Amendment No. 65. I welcome Clause 20(3)(k), which appears to introduce for the first time a line of accountability within private hospitals between practitioners and managers. However, the words "appropriate quality" and "appropriate standards" in the subsection must be given meaning and substance in addition to an element of transparency.
  The time has come when we should make the quality agenda a reality in all branches of healthcare, and the Bill provides a golden opportunity to do so.
  Lord Rix: Surrounded by the praetorian guard of the noble Earl, Lord Howe, and the noble Lords, Lord Astor of Hever and Lord Clement-Jones, I feel secure in supporting Amendment No. 45. I welcome the emphasis on maintaining and improving quality, as must all Members of the Committee. However, without the direct control exercised over directly provided services, and without incorporation in contracts of specifications for bought-in services, that may be thought a vague requirement. In my book, it is an important requirement, even if it does no more than state an aim.
  If the list of services within the scope of the Bill is broadened, as I hope will be the case—for example, to include day services—I trust that the quality requirement will also extend to those additional services. We are talking about vulnerable people and basic services. If the coffee in your Lordships' Dining Room were not of the highest quality, which of course it is, that would be an inconvenience, but it would not undermine the welfare of those who drink it or impair the fundamental enjoyment of their lives. But poor quality in the services we are discussing means misery for the people receiving them. Misery is not something we can wish on those who are now our neighbours and one day could well be us.
  Increasingly, we are defining quality in terms of the experience of those receiving the service. A good quality service is one in which people—children or adults—are listened to, respected, treated as individuals and feel that the staff are there for their benefit and not that they are there for the benefit of the staff. Achieving that should be the prime aim of managers and owners.
  Lord Northbourne: I support Amendment No. 23. The Government accepted a similar amendment which I tabled in respect of the General Teaching Council. I believe that object or principal aim clauses are increasingly important in so far as any challenge to our legislation in the European courts will be looked at in the context of its overall objective. That should be stated in general terms and quite clearly at the beginning of the Bill.

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  I have a slight doubt about the drafting of the amendment. It is surely not right that the principal aim of the commission should be to look after only the children. We are also discussing old people's homes; perhaps some redrafting on Report may be appropriate.
  Baroness Masham of Ilton: I support Amendment No. 45. I want to give the Committee an example of a private hospital. My husband—I hope that he does not mind my quoting him—had to move from a National Health Service hospital, where he received exceedingly good care, to a private hospital. The NHS did not have a consultant to carry out an assessment for a particular condition. After six days in the private hospital in Leeds, I discovered that he had not had a wash. I was annoyed with myself for not having checked previously. I wrote to someone at the headquarters of BUPA who said that an inquiry would be conducted. A few weeks later I received a reply stating, "He never asked."
  Someone who has had a stroke or who has diabetes, Parkinson's disease or various complications, does not ask; he or she expects it to happen, especially if a man! Therefore, it is most important to lay down minimum standards for all hospitals.
  6.15 p.m.
  Lord Jenkin of Roding: I support the idea behind this group of amendments and the emphasis which they suggest should be put on quality. Over the years and in various guises, many of us have visited homes for old people or those with handicaps. One can tell almost within minutes whether the quality of the service is good. When one is inexperienced one sees the bathrooms, the bedrooms and the facilities and says, "Gosh, what a marvellous place!" But with a little experience and using one's other senses—not least one's nose—one can quickly tell whether the quality of care is good.
  I remember visiting a local authority home in Coventry. I was taken there by Mr White, a distinguished director of social services whom the noble Lord, Lord Laming, will know well. He said, "I want to show you what we can sometimes achieve." Within minutes of entering one sensed an atmosphere in which the standard of care was high. One visits some homes and sees, as I have said previously, a whole lot of "cabbages" sitting around doing nothing. One realises that the standard of care is poor.
  I am sorry that I could not take part in the Second Reading debate, but I want to turn to a point that was made then. No doubt the document Fit for the Future? will provide much of the flesh which will cover the bones of the Bill, but one has the impression that the Government are still at the stage of dealing with the facilities; the size of the room, the number of plugs and so forth. They are measuring what can be measured. However, it is most important that there is a clear statement in the Bill that the overall quality of care lies at the heart of the whole process.
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  With great respect to the noble Baroness, Lady David, I share the misgivings that her amendment achieves that purpose. We shall need to reflect on what has been said today, but I totally support the view that the Bill must set out that objective in the clearest possible terms. People will refer to it—there will be an argument within the commission or between those who are being regulated and the regulators—and someone will say, "Look, this is what Parliament has required of us. We must go for the best quality of care that can be provided in all the circumstances", whatever the correct phrase may be. That it needs to be there seems to me clear beyond peradventure. I am not sure how many Members of the Committee remember the Pollution Prevention and Control Bill, which contained no statement of purpose at all. As a result of the efforts of my noble friend Lord Renton and others the Government took the Bill away, there was a recommittal and some good purpose clauses were put into the Bill. That is what this Bill requires. Most of us have supported the general thrust of securing an even more standard form of regulation of the services for vulnerable people, but the quality of the care of those people must lie at the heart of what it is all about. The Bill should set that out beyond peradventure.
  Lord Clement-Jones: There cannot be any ambiguity about the contributions of all Members of the Committee who have spoken so far: quality is absolutely of the essence of the Bill. It was therefore with some incredulity that I found, when reading Clause 7 for the first time, that the wording of the duty to encourage improvement in the quality of Part II services provided in England—which many Members clearly wanted to strengthen through their amendments—although not particularly strong by itself, had been deleted for independent acute services so that "Part II services" meant services of a kind provided by persons registered under Part II other than medical or psychiatric treatment or certain listed medical services. That seems to be going precisely in the wrong direction.
  Therefore, on these Benches we greatly support the general thrust of the amendments. There may be differences about precise wording, but we certainly believe that quality should lie at the heart and that there should be a clear duty on the commission to promote that. The Private Member's Bill of my noble friend Lady Nicholson is designed to do exactly that. Clearly, running in parallel with a Bill such as this one makes it a rather awkward instrument to influence government policy. But there can be no doubt under that Private Member's Bill that a duty of quality is promoted by the regulating body. We believe that that should be reflected in the Bill.
  At this point, I should like to apologise on behalf of my noble friend Lady Nicholson who is unable to attend to speak to Amendments Nos. 53 and 151 in her name. She is detained elsewhere in the European Parliament. It really is important that the Government take another look at the duty of quality right across the board. It seems to us that ideology seems to have raised

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  its head again. Have we truly a Secretary of State for Health—and social services, so to speak—or is the Minister simply looking at particular sectors in a narrow way? On these Benches and from other Benches there appears to be a desire to make sure that the Secretary of State and the commission, through him, take as broad as possible a view of quality. It is the name of the game right across social care and across healthcare. We should wish to see that reflected in the Bill.
  Lord Laming: I support entirely what the noble Lord, Lord Clement-Jones, has just said. The noble Lord, Lord Jenkin, reveals his vast experience in sharing his thoughts with us, in particular on Amendment No. 23. I support entirely the thrust of the amendment tabled in the name of the noble Baroness, Lady David. I hope greatly that the Minister will feel able to agree to a. form of words which captures the spirit of the amendment. Without it, Clause 6 is really about process and does not deal at all with the well-being and quality of care for extremely vulnerable people. The whole purpose of the commission should be to ensure quality of standards and proper protection where it is needed for some of the most vulnerable people in our community, and the notion of promoting well-being as opposed to dealing only with inadequate performance. Promoting well-being should be at the centre of the work of the commission. I hope that the Minister will be able to take on the general thrust of the amendment and come forward with a form of words with which the noble Baroness is happy and which we may all applaud.
  Lord Hunt of Kings Heath: I understand the thrust of the arguments being put forward. I have no doubt at all that better regulation of the various establishments and services listed in the Bill will lead to improved quality of service for people who use those services. I have no doubt that that will come about through the establishment of a highly professional central organisation which will prove to be much more consistent in its approach to registration than the previous 200 or so health and local authorities, and that it will have available to it the expertise which local health authorities and local authorities have sometimes missed out on.
  However, I make the point that the Bill itself and the purpose of the commission relate to regulation and registration. That is why the Bill is termed in the way that it is. Before I turn to Amendment No. 23, perhaps I may also pick up the point made by the noble Lord, Lord Jenkin, in his reference to Fit for the Future? and his suggestion that the emphasis of the draft consultation paper was rather too much on facilities and rather too little on quality and outcomes. The document is still out for consultation and we shall consider the results carefully. I wish to reassure the noble Lord that the Government are very much concerned with outcomes and not only with facilities. We shall take his remarks very much into account, and indeed, those made by other noble Lords when the Bill was discussed at Second Reading, when many similar points were raised.
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  I turn to Amendment No. 23, proposed by my noble friend Lady David. The independent nature of the new commission and its coherence and consistency will undoubtedly improve the quality of the services to be registered. As Members have already mentioned, the commission will have a general duty under Clause 7 to encourage improvement in the quality of Part II services. It will have powers also to ensure that the well-being of service users is secured and promoted. The Bill will achieve that by laying a clear and irreducible responsibility on service providers to secure and promote the well-being of those using their services and by ensuring that the commission vigorously carries out its functions.
  I draw my noble friend's attention to Clause 20(1)(d) and (e), which give regulation-making powers to require providers to promote the welfare of the relevant service users. Corresponding provision is found in current legislation; for example, that governing residential homes. It is our intention to continue with that provision, and indeed, to strengthen it with the Bill. Regulations together with the national minimum standards provided for under Clause 21 will give strong powers to improve the quality of service provision. Similarly, nothing in the Bill will detract from the existing responsibilities of local authorities and health authorities in respect of the welfare of those for whom they commission or arrange services.
  In relation to the question of statement of purpose, I reiterate that the Bill and the work of the commission rest upon the prime function of the agency, which is to regulate. It is through that regulation that the quality of services will improve.
  I turn now to Amendment No. 45. I agree wholeheartedly with the noble Earl and the noble Lord, as I have said already, that ensuring the quality of registered services is vitally important. One of the Bill's main aims is to improve the quality of registered services. Its provisions centre on that and it is intended to deliver quality through the enforcement of regulations and the national minimum standards. As I have already mentioned in connection with Amendment No. 23, regulations made under Clause 20(1)(d) will ensure that persons registered in respect of a children's home, care home or residential family centre must secure the welfare of their residents. That is essential to maintaining a quality service.
  Regulations under Clause 20(3)(k) will ensure that services provided in independent healthcare establishments or clinics are of appropriate quality and meet appropriate standards. Together with the national minimum standards provided for under Clause 21, regulations will improve the quality of service provision and ensure that registered persons continue to deliver quality. As the Bill already makes provision for maintaining and improving the quality of services, I hope that the noble Earl and the noble Lord will accept that the amendment is unnecessary.
  We come to Amendment No. 30, which seems to be based on what I can describe only as a misconception about the role of government in relation to private

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  healthcare. While the Government have a responsibility for the provision of public healthcare through the NHS, they have no such responsibility in respect of private healthcare. I believe that it will be wholly inappropriate to give the commission the same range of duties in relation to private healthcare as we place on it in relation to social care, where it will have wide-ranging responsibilities.
  Similarly, it is not the responsibility of the commission or of government more widely to improve the quality of private healthcare. That responsibility rests squarely on the owners and managers of private healthcare establishments. That differs from the Government's role in relation to the NHS where, clearly, we have a responsibility for improving quality. Our role in relation to the private healthcare sector is to ensure that proper standards are laid down and that they are adhered to by those providing care. As I said at the beginning of the debate, that is the difference between the Government's role in managing the NHS and in regulating the private sector.
  I turn to Amendment No. 53. I am sure that we all share the sentiments behind this amendment: that it is important for there to be proper arrangements in place to ensure the quality of treatment of patients in private hospitals. I recognise also the need to ensure that if residents in other establishments require medical treatment, they receive it. However, I do not believe that the amendment is necessary. First, as I have already said, we are taking powers in the Bill under Clause 20(3)(k) to make regulations requiring those who run private hospitals and other healthcare establishments to have arrangements in place to ensure the quality of the services which they provide, including clinical services. Secondly, we are already committed to introducing tough national minimum standards for healthcare providers and for those providing social care who will be regulated under this legislation. Thirdly, we are already taking powers to make provision for the welfare of those in children's homes, care homes and residential family centres. In short, we are already making the provision needed to secure proper care for those in private healthcare or social care establishments.
  Amendment No. 65 would require managers of independent hospitals to publish information about their services in a form appropriate for the general public. There is nothing between the Government and the noble Lord on this matter. We are committed to ensuring that patients and potential patients have comprehensive information about the services being provided by private hospitals and clinics. We made that clear last spring in our consultation document and we welcome the general support which was given to that proposal by those who commented. As we said in Regulating Private and Voluntary Healthcare, in working out detailed regulatory requirements and minimum standards we shall take account of the comments which were made in consultation. Therefore, I oppose the amendment because I do not
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  believe that it is necessary. The powers set out in Clause 20 will allow us to do what we and the noble Lord want.
  Clause 20(3)(a) will enable Ministers to make regulations which cover, among other matters, the provision of accurate information about the services provided by a private hospital. I want to make it clear that we are unequivocal in wanting to impose tough standards and requirements on the private healthcare sector. I believe that I acknowledged previously that the regime which existed was unsatisfactory. We are determined to put that right and, through regulations and minimum standards, to impose stringent requirements on the private healthcare sector.
  Amendment No. 71 would require the regulations, but not the minimum standards, which we make to be consistent with standards in the NHS where relevant. Again, I understand the intent behind that and, clearly, in drawing up standards for the private sector we shall want to take full account of requirements in the NHS. However, again, I must make the point that there is a difference between our role in regulating the private sector and our role in managing the NHS.
  Therefore, we may lay down standards which are appropriate for the private sector but which may be different from those of the National Health Service, not least because the private sector may undertake many procedures which are not available on the NHS. I give an example: if an independent hospital clinic specialises in the type of low-risk cosmetic surgery under local anaesthesia where patients stay overnight at the most, it may not be reasonable to require it to have the same standards as an NHS hospital taking emergency cases involving seriously ill or injured people. That is not a case of standards being higher or lower, or better or worse, but rather of being fit for purpose. The key point is that, rather than slavishly follow provisions in the National Health Service, we must ensure that the regulations and standards which we lay down for the private healthcare sector provide protection for patients and assurance about the quality of care that they receive.
  I turn to Amendment No. 151. Again, I thank the noble Baroness and the noble Lord for tabling the amendment and accept that the commission will need to collect and publicise information. Indeed, it is a regulator first and foremost and could not function effectively without collecting information. I believe also that in general the commission should make publicly available the information in its inspection reports and registers. However, there may be circumstances where it would not be appropriate for information to be available to the public; for example, cases relating to vulnerable children.
  I move on to say that the Bill already provides for the commission to collect and publish whatever statistics or information are necessary for the discharge of its functions. Clause 31 provides for regulations to be made requiring services to make annual returns to the registering authority. That information will be supplemented by inspections. The powers under Clauses 28 and 29 will allow the

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  commission to collect information to satisfy it that its service meets regulatory requirements and national minimum standards.
  I believe that on that basis, and given that the framework of the Bill already allows provision for the commission to collect and publicise information for the exercise of its functions, Amendment No. 151 is not necessary.
  6.30 p.m.
  Baroness Masham of Mon: Before the Minister sits down, perhaps I may ask a question. If an establishment does not adhere to an acceptable standard, will it lose its registration and be shut down after a warning? If not, what will happen?
  Lord Hunt of Kings Heath: There are a number of options available. The commission can bring to the attention of a home problems which it is hoped the home will wish to put right. If a serious situation arises in which the commission considers that harm may be done to residents, an application can be made to a magistrate for the home to be closed. If a situation arises which is not serious but in which none the less the home has refused to make good whatever are the deficiencies, the commission can go through a process which would lead to eventual de-registration. There are also offences in the Bill relating to homes which are carrying on as a home but are not registered. There is also an appeal mechanism, a tribunal to which homes can appeal if they are dissatisfied or aggrieved with the commission's action. There is a whole phalanx of actions that can be taken, depending on the seriousness of the case.
  Baroness Masham of Ilton: Can members of the public report deficiencies to the commission?
  Lord Hunt of Kings Heath: Yes, we would very much encourage the commission to invite comments from members of the public.
  Lord Laming: Before the Minister sits down—I apologise if I misheard him—did he say that if, for example, someone stayed overnight in an independent hospital providing cosmetic surgery, he would not need or receive the same safeguards as if, for example, he had that treatment in an NHS hospital or even an NHS pay bed?
  Lord Hunt of Kings Heath: No, I did not say that. I pointed out an example where, in relation to minor low-risk cosmetic surgery, the standard required for that surgery might be different from that required from a hospital providing major emergency services.
  Baroness Masham of Ilton: Patients may still get an infection.
  Baroness David: I should like to thank those noble Lords who have supported me in my Amendment
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  No. 23—the noble Lord, Lord Jenkin, even though he was not quite sure about the wording, and the noble Lords, Lord Laming and Lord Northbourne.
  But I should like to say to the noble Lord, Lord Northbourne, that, in fact, the amendment does not refer to children at all. It refers to the users of the services—those cared for under the provisions of Part II of the Bill. When I spoke, I referred to the users of the services—children, elderly people, those with illnesses or disabilities. I hope that the noble Lord will understand that this amendment, unlike many of my others, is not about children alone.
  As far as the Minister is concerned, I must say that I was rather disappointed with his response. I shall, of course, read carefully what he said and look at paragraphs (b) and (e) of Clause 20(1), as he asked me to. But I thought the thrust of my amendment was generally felt in the whole group and I shall read the whole debate on this group with great interest and consider what to do and whether to come forward with this amendment again with, perhaps, fresh wording.
  But in the mean time, I beg leave to withdraw my amendment.
  Amendment, by leave, withdrawn.
  Baroness David Baroness David moved Amendment No. 24:
  Page 4, line 24, at end insert—
  ("( ) In the exercise of its functions the Commission shall give due consideration to the views of children affected by the provisions of this Act:).
  The noble Baroness said: This is the first of a number of amendments which I have tabled about children. I should like to say that these are probing amendments—I have no intention of dividing the House on them—but I should also like to say that they are backed by the Children's Advocacy Consortium which comprises the NSPCC, the Children's Society, Childline, children's rights officers and advocates, national youth advocacy services and Voice for the Child in Care. So they have support from a great number of organisations which do a lot of work for children.
  This Amendment No. 24, which is grouped with Amendment No. 26, seeks to ensure that the national care standards commission considers the wishes and feelings of children.
  The Children Act required both the courts in private family cases and local authorities in regard to looked-after children to give consideration to the wishes and feelings of children affected by their decision-making. It is therefore consistent under domestic law that the national care standards commission should be placed under a similar duty.
  Considering the views of children is, of course, also a requirement of Article 12 of the UN Convention on the Rights of the Child, ratified by the UK after the Children Act was enacted. The Government are due to report to the UN-based Committee on the Rights of the Child and would gain credit if they had made some effort in implementing Article 12 since they last reported. This is very important. Our support for the UN convention should be recognised.
  Under this amendment the commission is not bound to follow the views of children, simply to give them due consideration. The amendment's purpose is simply to ensure that the commission keeps in touch with the views of those it is trying to help. This is something that the Government have continually urged local authorities to do under the Quality Protects programme and it is difficult to see how they should not apply the same principles to the national care standards commission. I hope that the Minister will be able to reassure us on this.
  I now move to Amendment No. 26, which seeks to create a separate children's commission within the national care standards commission.
  The White Paper Modernising Social Services recognises the risk of the national care commission not giving sufficient priority to children's interest and views. That is why regional children's rights officers were proposed. While the reintroduction of these regional posts is necessary, this alone would not ensure that the commission works for children. It is proposed that an arm of the national care commission is established to deal with all matters connected with the regulation of children's services.
  The establishment of a children's commission would have three main benefits. First, its philosophy and framework would be developed completely with children in mind. Secondly, staff recruited to work within the commission would have an unequivocal commitment to, and expertise in, safeguarding children's welfare. Thirdly, children and young people would regard the commission as theirs and would be more likely to participate in its work and view it as a place to which to turn when their rights or welfare were being seriously jeopardised. So I ask the Minister to think seriously about this amendment. It would be a great help to children. I beg to move.
  6.45 p.m.
  Lord Clement-Jones: I rise, very briefly, to support the noble Baroness, Lady David, in Amendments Nos. 24 and 26. The Bill, of course, makes provision for a children's rights director. But, in our view, that does not go far enough and we should like to see a separate commission appointed by the commission itself to provide a clear focus on children's issues. It would be separate, promoting the rights and interests of children and young people in accordance with the principles and standards of the UN Convention on the Rights of the Child, to which the noble Baroness referred.
  Those articles of the UN convention complement recent government child-centred initiatives, such as Quality Protects and Sure Start, and therefore would be entirely consistent with that. But we believe that it is necessary to go further in the way the noble Baroness has suggested. We very much support these amendments.
  Baroness Masham of ilton: Having been a member of a board of visitors of a young offender institution for many years, I have often thought those young
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  people had much more protection than those in children's homes. They could come to a member of the board of visitors which had direct access to the Home Secretary and could take an issue forward. I should therefore like to support the two amendments. Children should have their voices heard.
  Lord Hunt of Kings Heath: I thank my noble friend for allowing us to discuss these very important issues.
  I deal first with Amendment No. 24. There is no doubt that a crucial role of the regulatory process is that the views of service users are heard. I refer my noble friend to Clause 28(3)(f) which contains the relevant provisions. Clause 28(3) states:
  "A person authorised by virtue of this section to enter and inspect premises may …
  (f)—interview in private any patient or person accommodated or cared for there who consents to be interviewed".
  Interviewing children during inspections is a core activity. It has been a requirement of the Social Services Inspectorate for a number of years. I assure the Committee that children's views will be at the forefront of the regulatory process, including inspection. Ensuring that children are listened to will be a crucial function of the children's rights director who will be a key senior appointment in the commission.
  I turn to Amendment No. 26. I draw attention to the Government's previous statements as to the particular importance of children's rights as a responsibility of the national care standards commission. That is reflected in the establishment of a children's rights director in paragraph 10 of Schedule 1. It is extremely important for me to emphasise that that will be a senior post, accountable to the chief executive of the commission. The postholder will play a major role in safeguarding the interests of looked-after children or others in receipt of services regulated and inspected by the national care standards commission.
  My noble friend put forward arguments for a children's rights commissioner. She referred to the first sentence of Article 4 of the UN Convention on the Rights of the Child which states that parties shall undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognised in this convention. It is true that that sentence has been interpreted by those in the field of children's rights as a mandate for structures and/or institutions to be created such as an ombudsman or commissioner for children. Members of the Committee will appreciate that the remit of a children's rights commissioner in that interpretation will inevitably span the responsibilities of a number of departments, not just the Department of Health.
  The Government considered whether there was a case for a children's rights commissioner to be appointed. It was considered by Ministers and discussed with children's rights groups early in 1998. The Government concluded at that time that they were not persuaded that it would be desirable to create such a national mechanism. However—it is important to stress this—the Government are extremely committed,

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  through a range of other initiatives, to keeping the issues of children's rights and safeguards clearly and firmly on the Government's collective agenda. That includes the ministerial task force on children's safeguards and the proposal in this Bill to establish a children's rights director.
  I turn to Amendment No. 26. A further tier within the national care standards commission, as proposed in the amendment, would lead to the risk of duplication and a general confusion of functions. I do not believe that such an arrangement—one body within another—would be practical or that it could work. Within the commission there must be clear lines of accountability and responsibility. I know that we shall return to those issues when we debate the schedule. I believe that children's rights and interests are best safeguarded through the commission having responsibility for them and through the establishment of a children's rights director.
  Baroness David: I thank the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Masham, for their support. I think I can accept what the Minister said about Amendment No. 26. I see his arguments against the amendment and I think I accept those.
  I am not so happy with his response to Amendment No. 24. It is extremely important that the views of children should be heard and that something about that should be on the face of the Bill. Providing for children to be interviewed, as the Minister said, is not at all the same as being able to listen to the views of children. I think that is important.
  I believe that my noble friend referred to Article 4 of the UN convention whereas I referred specifically to Article 12. I am sorry that he did not accept that. I should like to think very seriously about this amendment. I shall read carefully what he said and I shall read Clause 28(3)(f) as he asked me to do. I am not altogether convinced, but I may return to the issue dealt with in Amendment No. 24 at the next stage of the Bill. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Clement-Jones Lord Clement-Jones moved Amendment No. 25:
  Page 4. line 25, at end insert—
  ("(4) Regulations under this section shall correspond to section 23(3) of the Health Act 1999 with respect to the disclosure of confidential information which relates to and identifies a living individual.").
  The noble Lord. said: This returns to an issue of concern to the medical profession which was raised during the passage of the Health Act in this House. During the progress of that Act, the Government conceded amendments which safeguarded the confidentiality of personal health information in relation to the functions of the Commission for Health Improvement. This amendment replicates those safeguards to ensure that the national care standards commission, while carrying out its functions, provides the same standard of safeguard for the identification of patients in the independent healthcare and social care sectors.
  Section 23(2) of the Health Act 1999 ensures that the Commission for Health Improvement—CHI—will be able to obtain confidential information about individuals only in limited circumstances if such particular information related to a person's physical and mental health. Section 23(3) provides that CHI would not be able to obtain information, the disclosure of which is prohibited by another Act, regulations or directions. Regulations provide that if the information would identify an individual, CHI may require information to be produced in such a way as to prevent the identification of the individual.
  Personal health information will be collected for the provision of care for individual patients and generally, of course, it should not be used for other purposes without a patient's permission. Only where there are exceptional circumstances may information be used without consent; for example, where disclosure is essential to avoid risk of death or serious harm to people and where it is not possible to obtain consent. The grounds for disclosure must be of sufficient severity to justify a breach of a duty of confidentiality.
  Therefore, Amendment No. 25 is designed to introduce precisely those safeguards contained in the Health Act into the current Bill so that the national care standards commission would be bound by similar duties. I beg to move.
  Earl Howe: In speaking to this amendment, I shall speak also to Amendments Nos. 87, 98, 99, 100, 112, 113 and 114 which are all grouped with this amendment. First, I fully endorse everything which the noble Lord, Lord Clement-Jones, has just said.
  During the passage of the Health Bill last year, my noble friend Lord McColl argued persuasively for better and fuller safeguards against breaches of medical confidentiality in the section of the legislation dealing with the powers of the Commission for Health Improvement. We all remember how appreciative we were when the noble Baroness, Lady Hayman, took away our concerns and later ensured that appropriate government amendments were tabled to address those issues.
  I wholly agree with the noble Lord, Lord Clement-Jones, that there is a direct parallel between CHI and the national care standards commission. Identical provisions should apply in each case.
  My Amendment No. 87 to Clause 28 is intended to put it beyond doubt that inspectors should not have an automatic right of access to medical records. Grouped with these amendments is a series of other amendments with a broadly comparable theme. We must be terribly careful about allowing reports on adoption or fostering agencies to be placed in the public domain when they may contain references to specific named children or adoptive or foster parents. It is more than possible to imagine such details being included in a report about a particular agency if the inspectors consider such information to be material and relevant. But access to such detail should be restricted to those few people who have a need to know. I hope that the Government will take away this issue and consider it.
  7 p.m.
  Lord Hunt of Kings Heath: All these amendments concern medical records and confidentiality. I shall begin by addressing the issues raised by Amendment No. 25.
  Of course, I appreciate the concerns of noble Lords and why the amendment has been tabled in relation to disclosure of confidential information to registration authorities and persons authorised by them. It is the case that a registration authority will need access to confidential information in order to regulate services effectively. The Bill provides the registration authority with appropriate access to confidential information. Inspectors will, for instance, need to ensure that residents in a care home have a proper care plan.
  The Bill already applies restrictions to the commission's access to documents such as medical records. As the commission will have to comply with the requirements of the Data Protection Act, I hope that the noble Lords will now feel reassured.
  I am grateful to the noble Lord for raising the question of access to medical records in Amendment No. 87. Clearly, that is an important and delicate matter. It is also a matter covered by technical legislation, including the Data Protection Act 1998, which is due to come into force on 1st March this year. As I have already stated, the national care standards commission will be bound by that legislation.
  The commission will regulate healthcare establishments that will be required to maintain records which will, of necessity, contain sensitive personal and healthcare information. In order to carry out its regulatory functions, for example, to ensure that proper care and treatment are being given, or to investigate concerns about the quality of such care, it may need to inspect medical records. That will, of course, have to be carried out by an appropriate health professional.
  The current legislation already allows for clinical records held by a registered nursing home to be inspected by medical practitioners. I believe that the commission should also have that power to carry out its functions properly and, therefore, I would not advise accepting this amendment.
  Turning to the other amendments in this group, particularly Amendments Nos. 98 to 100 and 112 to 114, I recognise that they are made with excellent motives in mind, those being the desire to keep the names of children, parents and foster carers confidential. We know that parents are concerned that their children should not be identified. We know that parents would not wish to be identified. We know that local authority foster carers and adoptive parents would not wish to be identified. The inspectors' reports are written keeping such matters in mind. We recognise that individuals want to be able to carry on their lives without the glare of publicity being turned upon them. It is right that their wish for privacy should be protected.
  However, there may be legitimate times when private concerns may have to give way to a public interest. Although such occasions will be rare, as a
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  general rule we would expect names to be kept confidential. That is good practice and we would expect it to be followed, but there may be times when it is in the public interest to name individuals. We need flexibility in the Bill to be able to do that.
  Having heard our reasons for not accepting these amendments, I hope that noble Lords will withdraw them.
  Baroness Knight of Collingtree: Before the Minister sits down, can he give the House an instance of the kind of situation in which it would be necessary to make names public? At the moment I cannot think of one, but I am sure that he has one in mind.
  Lord Hunt of Kings Heath: I have always found that one is on shaky ground when giving examples. However, one example that has come to mind is the case of Mr Roger Saint. A number of authorities approved Mr Saint as a foster carer although he had a conviction for indecent assault. Later he was charged and convicted on numerous charges of indecent assault against foster children in his care. If an independent fostering agency or a local authority were to approve a person as infamous as Mr Saint as a foster carer, the commission may want to name him when assessing the appropriateness of the behaviour of the authority or the agency. I am aware that that may be an excessive example, but there could be other cases where it may be appropriate to name an individual and we would want that power to be available. As I said earlier, I believe that that would occur rarely.
  Baroness Young: Perhaps I may press the Minister on this important point. The example that he has given is of a person who presumably has been before the courts and subsequently convicted, in which case his name would have been known publicly. As I understand the point made in Amendment No. 25 and in the amendment of my noble friend Lord Howe, we are not talking about people like that, but about possible prospective foster parents, adoptive parents and possibly children.
  I believe that the whole issue of confidentiality is extremely important. I have listened to the arguments and the Minister certainly has not satisfied me on how the power will work. A lot of people could be genuinely concerned that their names may become public knowledge. The more people who know about the people involved, the more likely it is that there will be a leak. These days we are all conscious of how difficult it is to keep anything confidential.
  We need to have the matter spelled out carefully. I suggest that one needs to have, certainly before the next stage of the Bill, much more detailed examples than the one given to my noble friend Lady Knight. How do the Government consider that this will work? Who would have access to such information and in what circumstances may it be made public? We need answers to those questions which are not hypothetical.
  Lord Hunt of Kings Heath: I said that I thought it was risky for me to use an example. I was seeking to

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  suggest to your Lordships that there may be circumstances in which it is in the public interest for the commission to be able to name a person. In that context, it is important for the Bill to allow for that flexibility on the part of the commission. I accept that this is a serious matter and one that should not be undertaken lightly. That will be well understood by the commission. As a general rule, we would expect names to be kept confidential. I have said that I believe this is good practice and one that we would expect to be followed.
  Earl Howe: I am grateful to the Minister. I shall reflect carefully on what he has said as regards the confidentiality of foster and adoptive parents. However. I do not believe that he has covered the point I was seeking to make about children. I cannot think of any situation in which the identity of a child should he disclosed to the general public. Of course, there are circumstances when the name of a child needs to be mentioned in a re port, but my amendments seek to ensure that only those few people with a need to know —and nobody else— should have access to that sensitive information. Between now and Report stage, I shall reflect on how to take this issue forward.
  Lord Clement-Jones: I too thank the Minister for his reply. However, I am somewhat puzzled that he does not seem to have taken on board the points made during the course of this debate—a feeling expressed by other Members of the Committee who spoke. The Minister has not given satisfaction to those like myself who were seeking a more narrow amendment purely in terms of medical confidentiality; nor has he given satisfaction in relation to the broader range of amendments tabled by the noble Earl, Lord Howe.
  The Minister seemed to be saying that the new commission will be subject to the new Data Protection Act and that that will solve everything. But I cannot see any reason why medical professionals—I proposed that this new commission should be on all fours with the Commission for Health Improvement which will also be subject to the new Data Protection Act— should not have the same protection for confidential information about their patients, and indeed for the patients to have that protection, as in the case of the commission. The rules of medical professional confidentiality were discussed at some length and were fully accepted by the Minister's predecessor, and I cannot see any reason why they should not be incorporated into this Bill.
  I therefore urge the Minister, between now and Report stage, to look again not only at the narrower Amendment No. 25, but also at the broader anxieties relating to confidentiality raised in the debate. In the meantime, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  On Question, Whether Clause 6 shall stand part of the Bill?
  Lord Laming: I am not sure whether opposing Clause 6 is the correct way to achieve my purpose. I
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  hope that the Committee will excuse my inexperience in these matters. However, in speaking to this issue, I should like also to speak to my Amendment No. 27.
  Members of the Committee will recall the Government's White Paper, Fit for the Future? In that White Paper the Government proposed that eight regional bodies should undertake the work of regulation and inspection of care facilities, which your Lordships have been discussing throughout this Committee stage. At the present time those functions are undertaken by 150 local authorities (more if we include Wales) and a large number of health authorities. There is therefore good reason for wanting to achieve a higher standard of consistency and greater uniformity of regulation and standard setting than can operate across such a large number of different organisations.
  On the other hand, it is clear that in matters of this kind— the noble Baroness, Lady Masham, referred to this earlier—local intelligence is an important aspect of the work. Access to carers, to people who may have anxieties—members of staff and former members of staff—in relation to the standards being applied in homes or centres is essential. It is therefore important that there is good communication between the people charged with regulating facilities of this kind, which deal with some of the most vulnerable people in our community.
  I assumed, when the Government recommended that eight regional bodies should undertake this work, they would follow the boundaries of the current regions of the National Health Service; and that the idea was to facilitate good communication across social and healthcare authorities where there is a responsibility to protect vulnerable people, and to ensure that those who have concerns have ready access to the regulatory body.
  Since the White Paper was published the Government have come forward with the Bill before us. It does not recommend eight regional bodies; it recommends one care standards commission. As we have already said, this national commission will have an enormous range of responsibilities covering the whole age spectrum and most of the different aspects of social care needs that people experience in their lifetime. It is important that the way the work is undertaken commands the confidence not only of those who use the services and their carers, but also the wider community. The purpose of Amendment No. 27 is to secure an undertaking that if the Government intend to move away from providing eight local bodies, they ensure that the machinery is in place within the national body to facilitate that essential local contact.
  7.15 p.m.
  Baroness Young: The point made by the noble Lord, Lord Laming, is extremely important. I do not support his Amendment No. 27 in relation to regional authorities. In some areas regions are quite clear but in others they are very unclear. I am not sure that the amendment would be helpful either administratively or in any other way. I therefore do not support it.

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  However, a real issue arises in relation to Clause 6 and I should like to make two points. As the noble Baroness, Lady Masham, said, it is one thing to inspect things that are obvious—matters of hygiene, standards in buildings and so forth—but when one is trying to identify members of staff who may be the wrong sort of person to be employed, it is much more difficult. The only ones who will have any idea what is going on are those on the spot. A national commission is unlikely to identify anybody.
  This is a difficult but important issue. For that reason, the lower the level at which such inspections are undertaken, the more prospect there will be of identifying those who need to be identified. The same happens in the world with which I am much more familiar, that of education. People can only be identified at school level; it is difficult to identify them anywhere else. They are hardly likely to say who they are and outsiders are unlikely to know unless they are familiar with the circumstances of the organisation concerned. A real point is being made which needs to be addressed.
  As to whether Clause 6 should stand part, once again, it is a very general clause. For example, it says in subsection (2),
  "The Commission shall, in the exercise of its functions act—

  (a)—in accordance with any directions in writing given to it by the Secretary of State; and

  (b) under the general guidance of the Secretary of State".

  We do not know what that means. We do not know what the Secretary of State is going to say. It is therefore important, before the Bill completes its passage in this House, that we have a much clearer idea of what the Government have in mind on these important issues.
  Baroness Pitkeathley: In a long working association I have rarely found myself in disagreement with the noble Lord, Lord Laming, but I am afraid I do tonight. I come from the same point of view as he, that of users and carers. But my experience and all the feedback that I have received tells me that users and carers want the establishment of a national commission in which standards can be applied across as wide an area as possible. The number of times people have asked me why things are different in Newcastle than in Plymouth leads me to say that.
  That is where my disagreement with the noble Lord, Lord Laming, ceases because I agree with him that good communications and commanding confidence are essential for the commission. There is no doubt about it. Taking into account the points made by the noble Baroness, Lady Young, feedback from the local level, from the users and carers will be essential. But the establishment of standards is best done at national level so that everyone knows what they can expect.
  Baroness Masham of Ilton: I have been longing to ask who will carry out the inspection. How many people will it take? Perhaps we should have a national body to set the standards, but surely the people going
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  into the homes must be local. I give an example of what can happen. I received a letter from a lady in a home in Leeds saying that as her letters were read, a friend had to take them out and send them to me and I had to send mine back through the friend. On paper there were qualified staff; in practice there were 16 and 17 year-olds at night. What was going on was appalling. At that time a friend of mine served on Leeds health authority. I asked him to visit the place and he made inquiries. To cut a long story short, that lady was transferred to a home in Harrogate. Afterwards she wrote to me saying, "It was like leaving hell and going into heaven". She arrived on her birthday and they made her a birthday cake.
  Some people live in frightening situations. Therefore, there must be people attached to and visiting homes, so that residents have a contact. Someone had said, "Write to Lady Masham", as people have done over the years. That was one of my success stories, although there have probably been many that were not successes. There must be a proper establishment which must be local, even though it could be a national body also.
  Lord Jenkin of Roding: I find myself more in agreement with the noble Baroness, Lady Pitkeathley, than with the noble Lord, Lord Laming. I draw my reasoning from my experience of the Mental Health Act Commission. It is a national body which has been in existence for a good many years and which manages to carry out its inspections using people who are familiar with the particular hospital or institution but whose standards are entirely derived from a national standard-setting process. They command great respect; there is no question about that.
  As chairman of the trust, I always made it a point to attend the final day when the MHAC was carrying out its inspection at Claybury Hospital. I was hugely impressed by the authority of the inspectors and the awe and respect which they commanded from the hospital staff. Almost everyone concerned made a point of turning up—and that is not always what happens in the National Health Service. They paid the utmost attention to the recommendations after the team had spent two or three days inspecting the hospital, talking to patients and so on.
  I believe that one must have a national standard-setting body and on the whole, therefore, I am inclined to agree with the Government's change of heart. But I equally agree that it is essential that such people should be seen to command support, understanding and respect locally. That is a task which the Mental Health Act Commission has succeeded in performing over the years under a succession of able leaders. This commission is starting the task from scratch. Its members will need to apply some of the same skills, but they should start as a national standard-setting body. I agree with that, I apologise to the noble Lord, Lord Laming, if I cannot follow him on this occasion, but it is a case where second thoughts are best.
  Baroness David: I support the noble Baroness, Lady Pitkeathley, about the national care standards

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  commission setting the rules for the whole country. However, I am curious to know why the Government changed their mind about the eight regional officers. One needs local information and local people to go round ascertaining what is going on. I shall be interested to hear what the noble Lord has to say.
  Baroness Emerton: My experience with nursing is that the central body is the standard-setting body. It then devolves its functions to eight regional offices to ensure that the standards are carried out. I regret that I cannot support the noble Lord, Lord Laming, who sits in front of me. I support the noble Baroness, Lady Pitkeathley. There must be a central standard-setting body, but the process of enacting those standards must he devolved.
  Lord Hunt of Kings Heath: I shall deal first with why the Government changed their mind about the original intention to establish eight regional commissions as contained in the White Paper, Modernising Social Services, of November 1998. It was felt at the time that that would address the problems of a lack of independence and coherence in the current system. However, with eight care commissions there would still he problems of inconsistency between those eight. Although, probably, within each of the eight regional commissions, we would have had a more professional inspectorate and greater internal consistency, it was felt that there would none the less be inconsistency between the eight different commissions. In view of that and the many comments that the Government received, we felt in the end that it would be better to have one single national commission.
  However, I very much recognise the concerns of the Committee that it would not work effectively if it were an organisation remote from the practice and experience of people working in the field at local level.
  A number of factors should address the Committee's concerns in the area. First, we envisage that the commission will discharge many of its functions through a regional structure. Schedule 1 to the Bill gives the Secretary of State the power to direct the commission to appoint regional directors. But in association with that we would also expect the commission to have local offices because the people who will carry out the inspections will be locally based. Many of those who are currently employed within health and local authorities as inspection officers will transfer to the employment of the care standards commission. I take the point of the noble Lord, Lord Jenkin, about the calibre of the inspection officers. I argue that it is essential that we build on the foundation of the experience of those people.
  I hope that in that way the commission will be informed by the experience and professionalism of its local inspecting officers and that, through their knowledge and the information they provide, the commission's work at national level will be undertaken with sufficient knowledge and
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  understanding of the inspection process at local level. On those grounds, I hope that the noble Lord will withdraw his objection to the clause.
  Lord Laming: I am grateful to the Minister for that helpful reply. This has been a useful discussion because it has revealed that in all this there must be not only balance but an understanding of different levels of organisational accountability. The centre has a responsibility to set the standards, many of which will be accommodated in secondary legislation. The centre has the responsibility for promoting good practice, but, as the noble Baroness, Lady Young, rightly said, local authorities and those even more local than some local authorities, gain a great deal of knowledge about people working in their area and issues of local concern, such as the example given by the noble Baroness, Lady Masham. Therefore, there has to be a proper organisational arrangement which will accommodate both direction from the centre and local availability, access and sensitivity.
  None of that is accommodated in the way the Bill is framed at this stage. I am grateful to the Minister for his comments. I hope that as the Bill progresses we shall be able to establish a greater understanding of how these different levels of responsibility will find an accommodation within legislation to make sure that we do not, as it were, throw the baby out with the bath water and move from the present arrangement with local authorities to a central commission without having the machinery in the middle which will secure the best of both of those worlds. However, in the light of what the Minister has said, I withdraw my opposition to Clause 6.
  Clause 6 agreed to.
  Lord Burlison: I beg to move that the House do now resume. In moving this Motion, I suggest that the Committee stage begins again not before 8.30.
  Moved accordingly, and, on Question, Motion agreed to.
  House resumed.

  Statutory Instruments and Human Rights
  7.31 p.m.
  Viscount Colville of Culrossrose to ask Her Majesty's Government whether they have checked all statutory instruments issued since May 1997 for compliance with the European Convention on Human Rights (and especially with Article 8, right to respect for private and family life); and whether they will in future attach to every such instrument a statement of compliance.
  The noble Viscount said: My Lords, the House will know that in order to bring into force in October the Human Rights Act a great deal of energy is being spent on looking at primary legislation to see whether it complies with the provisions of the European Convention on Human Rights, and indeed a great deal of training in all sorts of public sectors is currently

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  taking place. My concern is that this may not have reached the departmental lawyers who draft statutory instruments.
  I have given a copy of the notes I propose to use to all those who are to speak in this short debate, except, I am afraid, to the noble Lord, Lord Marlesford, as I did not know that he was to participate. That at least enables me to avoid quoting vast quantities of statutory instruments. I should tell the noble Lord, Lord Bassam—as I think that I have already done in writing—that I do not quarrel with the merits of any statutory instruments; it is a point of procedure and compliance with the European convention that concerns me. I also take this opportunity to thank in advance all those who propose to take part in this debate as I cannot do so at the end.
  I have chosen Article 8 of the convention which deals with privacy. I hope that other noble Lords may wish to discuss other articles as all of them are important. Article 8 deals with the privacy that a person is entitled to enjoy in relation to his home. There are limitations which allow interference with this privacy by a public authority in accordance with law and for certain purposes such as the prevention of disorder or crime or the protection of health, but always—this governs the whole of the article, and indeed many others— only so far as is necessary in a democratic society. That is an important proviso to the limitations that can be imposed on this, as on many other rights.
  Under the jurisprudence of the Strasbourg court, when one talks about home the concept is not confined simply to the place where a person and his family live. It is wider than that. The German case of Niemietz dealt with a solicitor and his office. It occurs to me that there must be many similar examples in everyday life, for example, small farmers who keep their records at home and the owners of foodshops who live over the premises. In relation to a Starred Question asked before Christmas, the noble Lord, Lord Borrie, pointed to the increased commercial use of computers by people who carry out business interests from home. Therefore the dilemma is ever increasing.
  Your Lordships will be aware that the classic method of preventing crime—whether it is being committed or has already been committed— by way of entry has been in the hands of the police. The police—this was encapsulated in the Police and Criminal Evidence Act— are allowed entry to a person's house, and indeed other premises, only if they have reasonable cause to suspect that a crime is being or has been committed and they obtain a warrant from the magistrate. The same applies under other legislation, for instance when they are looking for stolen goods, drugs, other illegal imports, obscene publications and so on. Woe betide the organisation that does not go through the proper processes. There was a case where police were persuaded to apply for a warrant of entry into the premises of a firm called South West Meat early in the past decade. It was simply an exercise
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  whereby the meat intervention board wanted to snoop. The matter came before the courts which described the whole operation as a,
  "deplorable abuse of power by public officials and police".
  They awarded £25,000 exemplary damages. Therefore this is not a matter to be undertaken lightly. Warrants are not lightly granted.
  There are now vast quantities of other officials who are entitled, particularly under statutory instruments, to enter into one's home. The power depends primarily on the main legislation under which the statutory instruments are given. I looked at the Banking Act 1987 and the Police Act 1997, both of which produced statutory instruments which allow entry but only after a period of notice has been given. That is probably suitable for that kind of subject matter. I refer also to the Agriculture Act 1970 and the Animal Health Act 1981 which require the same test of "reasonable cause to believe". This carries through into the statutory instruments made under those pieces of legislation.
  Even under the European Communities Act— Section 2(2) is the prime source of subordinate legislation in this respect—there can be "reasonable grounds for suspecting" incorporated in the subordinate instrument. For instance, if I have potatoes originating in Egypt, under the potatoes originating in Egypt regulations of 1998 an inspector authorised by the Ministry of Agriculture can enter my house to look for them only if he has reasonable grounds for suspecting that I have them in the larder. I have no objection to that because I think that reasonable grounds for suspecting, or possibly notice, are exactly the kind of threshold which demonstrates that we are operating what is necessary in a democratic society. Therefore much of this is probably all right. I had a great deal of sympathy with the noble Lord, Lord Bassam, when he was unable to say how many statutory instruments gave powers of entry. The recent statutory instruments are not bound in the Library and a great deal of what I say is based upon inspired guesswork as to where I might look.
  What I am really concerned with are the statutory instruments which grant a right of entry, usually to unspecified officials, simply on a speculative basis. I cannot believe that that is within the powers and the remit of the European convention. I suggest that it goes too far. It is frequently contained in statutory instruments. There is possibly trouble in the primary legislation. I looked at the Food Safety Act 1990. There is perhaps room there for a revision if the Government are anxious to make sure that all their legislation lives up to the requirements of the European convention.
  The real trouble arises under the European Communities Act. There is no limitation in Section 2(2) on what kinds of powers of entry may be given; it is not mentioned at all. The power is absolutely general. It is there to give effect to directives and it frequently does so.
  I have looked at a number of statutory instruments in the past two or three years which have been made in the realm of animal health for food safety, where the

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  primary legislation —the British legislation—contains reasonable safeguards but where legislation made under the European Communities Act allows entry on a purely speculative basis.
  I am sure that all noble Lords will agree that spongiform encephalopathy must be dealt with very firmly and radically, even where it occurs in sheep and goats. I may happen to be keeping a goat or a sheep in my outhouse. I am surprised, however, to find that a veterinary inspector or officer of the appropriate Minister has a right at all reasonable hours to come in to see whether that is so. He does not have to have any reasonable suspicion. All he has to do is to show some authenticating document. I shall not go through all the statutory instruments that I have found, but this is a pattern which occurs time and again, particularly when implementing directives under the European Communities Act 1972.
  There is also a tendency, I fear, to stray in the direction of speculative entry. Not long ago there was a Prayer about the use of lead shot when shooting various wildfowl. The Prayer was not successful but the subordinate instrument was looked at. I see that it had been made under certain powers in the Environmental Protection Act. Those powers— I have looked at them—appear to include very reasonable restrictions on the Nights of entry, but the subordinate instrument does not. The authorised person—heaven knows who is the authorised person—can enter at any reasonable time any premises, including my house, which he has reason to believe it is necessary for him to enter. So he can come in to see if I am shooting moorhens from my bedroom window with cartridges containing lead pellets. He does not need to suspect that I am doing so; he simply comes in if he thinks it would be a good idea to do so. That is not in accordance even with the primary legislation.
  My purpose in asking the Question is to see how far the Government are making progress in this matter. A useful development has recently taken place. After your Lordships rose for the Christmas Recess, a Statement was made in another place by the Home Secretary in which he said that he would introduce statements of compliance—which now apply to all Acts of Parliament— in relation to subordinate legislation which requires the affirmative resolution or which amends primary legislation. But it would not apply to negative instruments. I have been talking about negative instruments.
  Let me make a Final point. If it is the intention of negative instruments passed under Section 2(2) of the European Communities Act to implement European law, I would suggest to the House that the implementation should comply with the Luxembourg codes—not the Strasbourg codes alone—which have a good deal to say about this. I have looked up some of the case law and I have given the noble Lord, Lord Bassam, some examples of it—Nold and Hoechst. There was a very interesting Greek case about television monopolies called ERT, which deals with Article 10 of the convention.
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  The way in which the Luxembourg court approaches this matter is that fundamental rights are part of the law of all the participating states in the European Union and should not be overridden in the course of pursuing European Union objectives. Therefore, if we are trying to implement directives under our own European Communities Act, I would suggest that we ought not do so in such a way as to violate Article 8, or indeed any of the other articles.
  I leave this matter with your Lordships. I hope that others will develop it. I believe that the principle and the problem are much more general than has been recognised. I hope that the Government will take forward the very encouraging steps announced before Christmas and will guarantee to the House that all departmental draftsmen who draw up the statutory instruments are trained to comply with what everyone else will have to comply with, the Human Rights Act. Otherwise, it will all end up in the courts and prove extremely expensive.
  7.46 p.m.
  Lord Marlesford: My Lords, we all owe a debt of gratitude to the noble Viscount, Lord Colville of Culross, for introducing this subject. Because of the very wide range of public service he has given to these matters, I suspect that there is no one in your Lordships' House who is better qualified to raise such a very important subject as the granting of powers of entry into private premises by secondary legislation, in particular, and also by primary legislation.
  There is nothing new in such powers; they have always been needed and always will be needed. But, as they are very strong powers, in each and every case where either primary legislation or statutory instrument grants them, they should be subject to public and parliamentary scrutiny to ensure that they are justified in overriding what should he the normal presumption against them.
  My own interest in this was stimulated by a Parliamentary Answer from the Minister in which he was unable to give me a list of the occasions since the last election when such powers have been granted. I note that the noble Viscount, Lord Colville, had sympathy with him for not being able to answer that question. I have rather less sympathy. I should have hoped that a new and radical Government, who are aiming both to show a libertarian streak and to have a sound law and order policy— I have the highest esteem for the present Home Secretary, whom I regard as a personal friend of many years' standing—would at the very least have kept a careful record of the occasions on which they introduced such legislation (my question was about the period since they came into power) in order to ensure that they were not in any way overdoing it. I do not blame the Minister personally but I felt that the answer indicated a somewhat cavalier—maybe he would prefer the word "casual" — attitude to the whole question.
  We then had the Prayer of the noble Earl, Lord Lytton, against the use of lead shot regulations (Statutory Instrument 1999/2170), to which the noble

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  Viscount, Lord Colville, has referred, in which the justification for the draconian powers was questioned. In her reply, the noble Baroness, Lady Farrington, said that these powers would be mainly exercised by the police but that they also might be exercised by the Environment Agency or English Nature.
  I have one question to put to the noble Lord, Lord Bassam, of which I gave his department notice this afternoon in order that he should be able to answer it. Have such powers been granted, or are there plans for them to be granted, either to the Environment Agency or to English Nature? I believe that it is dangerous to give such bodies powers of this kind unless it is absolutely essential. Furthermore, I believe that on occasions when any official other than the police or, by long-standing convention of powers held for centuries, officials of Customs and Excise, who has been given powers by a Secretary of State needs to gain access, he should always be accompanied by a police officer. At the very least, that will make the occasion more formal. Even to contemplate that an odd official from English Nature should enter people's private premises without a warrant is, I believe, unacceptable.
  This matter emphasises once again the generally unsatisfactory use of Henry VIII legislation; that is, primary legislation that gives powers to the Secretary of State by order. However, what I believe is much worse is that all too often, such statutory instruments are in effect themselves Henry VIII clauses. That is because they allow the Secretary of State to authorise anyone he wishes to exercise powers of entry without specifying who that person may be. That is a legitimate ground for complaint.
  I hope therefore that in future any use of statutory instruments in this way will be much more carefully considered as regards powers of entry and that arrangements will be made for appropriate parliamentary scrutiny. Those arrangements are not available at present. Furthermore, I hope that, under its new and more legitimate form, your Lordships' House may feel that it should have the power to pray against, with a vote, certain statutory instruments. Previously that was something that the House has not felt able to do.
  While I yield to no one in my support for the forces of law and order to use all appropriate means to fight serious wrongdoing, the trivialisation of such grave powers, as I believe the lead shot example to be, erodes freedom in a way that reduces rather than enhances public support for the forces of law and order on which we all depend. Finally, I hope very much that the Minister will give a positive and detailed reply to the points raised so sensibly and necessarily by the noble Viscount.
  7.53 p.m.
  Lord Lester of Herne Hill: My Lords, I am most grateful to the noble Viscount for initiating this debate on the important subject of effective parliamentary scrutiny of delegated legislation and in particular in the context of the right to personal privacy. In my
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  remarks I shall not focus on the right to personal privacy, for reasons that I can briefly explain. Obviously it is vital that powers of search, entry and seizure should comply with the fundamental right to respect for private life anchored in Article 8 of the European Convention on Human Rights. One of the reasons Sir Stafford Cripps gave in 1949 for opposing the European human rights convention, when he was Chancellor of the Exchequer in the Attlee government, was that he wanted his inspectors to be free to search our homes without any safeguards being introduced. Half a century later, we have moved well beyond that point.
  The reason why, with respect, I do not believe that the noble Viscount is correct in identifying a significant particular problem in the context which he has raised is because effective legal remedies are in place to deal with delegated legislation if it flouts the right to respect for personal privacy. First, if statutory instruments are made under Section 2(2) of the European Communities Act 1972, then they must be made with limits to their powers in accordance with European Community law. As the noble Viscount indicated, European law must be read subject to respect for human rights as laid down in the European Convention on Human Rights. It is beyond the power of Ministers or of this Parliament to produce statutory legislation which is not authorised by the 1972 Act and by the paramount law of the European Community. For that reason, if any subordinate instrument were made that violated the right to personal privacy, it could be challenged by way of judicial review and quashed. That will become even more the case when the Human Rights Act comes into force on 2nd October 2000. So the particular problem raised by the noble Viscount, although it is important that there should be safeguards of personal privacy, is dealt with through the legal process.
  However, that does not answer the wider question raised by the noble Viscount, which does not concern legal remedies, but is about the effective parliamentary scrutiny of delegated legislation. That problem goes far wider than the particular question on the Order Paper. It has been addressed most helpfully by the Delegated Powers and Deregulation Committee of 10 Members of your Lordships' House, chaired by the noble Lord, Lord Alexander of Weedon. In evidence given to the Royal Commission on Lords Reform on 21st April 1999, it made a number of important recommendations with which I agree in their totality. The first matter that the Delegated Powers and Deregulation Committee supported was the establishment of a human rights committee, or a joint committee with the other place, and they referred to the commitment made by the Government to support the creation of such a committee. However, the Delegated Powers Committee pointed out that the terms of reference being proposed for the new committee had three particular gaps. First, there would be no proposed scrutiny of the compatibility of secondary legislation—a point raised by the noble Viscount—where much potential incompatibility may lie and which could be a very considerable task.

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  Secondly, the Delegated Powers Committee pointed out that there was no mention of second-guessing ministerial statements on compatibility as laid out in Section 19 of the Human Rights Act, only,
  "the examination of draft legislation".
  Thirdly, it pointed out that the new committee would need the power and resources to consider whether amendments tabled to a Bill would render it incompatible with the convention.
  Finally, pointing out that we do not yet have a sensible structure, it recommended that we should set up a coherent committee structure in this House involving the creation of the following new committees in addition to ad hoc committees for the pre-legislative scrutiny of draft Bills: a human rights committee; a legal and constitutional committee—an important committee, given the special role of many second Chambers worldwide in relation to the constitution; and special scrutiny committees for detailed inquiry into selected statutory instruments.
  I very much hope that the noble Lord, Lord Wakeham of the Royal Commission will find it easy to recommend those proposals to the House. If it does not, I hope that the House will itself seize the initiative. However, since that evidence was given on 21st April, it is my sad task to inform the House that was has happened since thin has been a most lamentable dragging of feet by the Government in failing to set up a Select Committee on human rights, as had been promised a long time ago, or to indicate whether its terms of reference would include the scrutiny of delegated legislation.
  I shall not weary the House with a detailed recitation of all the occasions on which questions have been asked, not least by me, on this issue and answers not given, but it has gone on for month after month. As long ago as 20th May 1999, the Lord Privy Seal, the noble Baroness, Lady Jay of Paddington, indicated in a Written Answer that it was the Government's intention to set up a Joint Committee on Human Rights before the Human Rights Act 1998 came fully into force but that no decision had been taken on when exactly both Houses would be asked to approve Motions to appoint such a Joint Committee. Again and again the Government have been pressed and again and again they have refused to give an answer. There are some Questions down in my name for Written Answer at this very moment.
  The reason why that matters is that until such a committee is set up we shall not have any scrutiny machinery to deal with the kind of problems raised by the noble Viscount. Until we have a Select Committee, whether joint or separate, we will not have the expertise or the information to be able to scrutinise measures, whether primary or subordinate, for their compatibility with convention rights.
  It goes further than that. The Government put on the face of every Bill, as they must under Section 19 of the Human Rights Act, a statement of compatibility. It expresses the view that the Minister believes the Bill—I am referring to primary legislation—to be compatible. Indeed, as the noble Viscount indicated, the
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  Government have agreed to do the same under the affirmative resolution procedure for delegated legislation. But that is of no value unless the Government also give their reasons for considering that a measure, primary or delegated, is compatible. Again and again the Government have been pressed as to whether they will make it standard practice to give their reasons in order that we in this House and Members of another place are able to test those reasons.
  The issue arises again and again. Tomorrow the same Minister will be dealing with the Committee stage of the Race Relations (Amendment) Bill. I wrote to the Government and put down Questions to the Government so that we could be properly informed before the debate tomorrow—I said preferably by 4th January so that we could have plenty of time—as to the Government's reasons for believing that measure to be compatible with convention rights. I received a courteous reply from the Home Office indicating that those involved were on holiday and too busy and could not reply in time. We have not yet had a reply and the Committee stage is tomorrow. It is quite wrong that we should be scrutinising an important Bill in Committee tomorrow when we do not have a clue as to the Government's reasons for considering that the Bill is consistent with Articles 14, 6 and 13 of the European Convention on Human Rights in relation to access to justice, Ministers' liability and equality of treatment without discrimination. We do not have a clue. As a lawyer, I do not have a clue as to the Government's case on that; still less on compliance with the International Covenant on Civil and Political Rights, which, as a member of the Human Rights Committee, the noble Viscount knows so well; still less on the Convention on the Elimination of Racial Discrimination.
  We are in a pathetically ignorant state. We simply do not have the material. Lawyer Members of the House like myself have to do our best to help other Members who are not lawyers to address some of these questions as unpaid professionals doing our best in the way that we can. It is not good enough. We need to have a proper committee structure to deal with the kind of questions raised by the noble Viscount and we need the information so that we can know what the Government's case is, we can test it and we can call the Government to account.
  I hope that the Minister will provide that information in the debate tomorrow on the Race Relations (Amendment) Bill. But I am addressing, as is the noble Viscount, systemic failures. We talk again and again about parliamentary sovereignty but the reality is that Parliament, or at least the other place, is controlled by the executive for most of the time between elections. The only way in which we can call the Government to account is by having effective powers and effective information. That is now what we must press for. For that reason, and for many others, I am most grateful to the noble Viscount for initiating

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  the debate. I very much hope that it will be considered at the highest level of government as a matter of priority.
  Lord Burnham: My Lords, before the noble Lord sits down, perhaps I may ask him to add to those measures that he mentioned the Armed Forces Discipline Bill, with the Report stage of which we shall deal next week, as another Bill where it is less than clear whether either the current legislation or the proposed legislation is compatible with the convention or with the Human Rights Act.
  Lord Lester of Herne Hill: My Lords, I do so with great pleasure because what I have said is true of every Bill. Every Bill has to have a statement of compatibility. Every Bill should be accompanied by or followed by reasons concerning compatibility. The same applies to the affirmative resolution procedure; and for the negative resolution procedure we need a proper committee system to look at selected delegated legislation, as the committee of the noble Lord, Lord Alexander, has made clear.
  8.5 p.m.
  Lord Cope of Berkeley: My Lords, like other noble Lords who have spoken, I am grateful to the noble Viscount, Lord Colville of Culross, for tabling this Unstarred Question. He has drawn attention to a most important consequence of the European Convention on Human Rights which seems to have escaped both the Government and Parliament. I understand that it was the 17th century English jurist, Coke, who formulated the legal principle that a man's home is his castle and every man's home is his safest refuge. It is therefore appropriate that this long-established principle of English law should find a place in the human rights convention, which has now been written into our statute law and comes into effect later this year. This nation and this House should be foremost in ensuring that the principle is carried into practice.
  However, the noble Viscount has shown us that we have allowed the principle to be eroded. He made the clear distinction between the powers of entry given to the police, Customs and so on, which are necessary for the protection of law and order and which are now formulated in PACE, and the increasing number of powers given to other officials to enter and search premises which are wholly or partly domestic and which do not provide the same safeguards for the citizen. They provide instead for what can be called "fishing expeditions". That is not acceptable under the convention and it should not be acceptable in our country in any case.
  That leads me to ask the Minister two questions. First, can he confirm that these powers, as they are now formulated without safeguards, will become illegal under the Human Rights Act when it comes into force later this year? I assume from what has been said, both by the noble Viscount and by the noble Lord, Lord Lester, that the answer to that question is clearly yes, but it would nevertheless be nice to have it
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  confirmed by the Minister. Perhaps I may say this to the noble Lord, Lord Lester. I do not think it is sufficient to say that it does not matter whether these powers are excessive because they can be quashed through judicial review. I am sure that the noble Lord is right about that. I am not arguing with him as a lawyer, but I do not think that we should have legislation on the statute book which can mislead both the officials concerned and the public into thinking that the powers are greater than they actually are. Therefore, although the power to quash them is important, it does not finally answer the question.
  Lord Lester of Herne Hill: My Lords, I am grateful to the noble Lord for giving way. I was simply pointing to the existence of a remedy for over-breadth, but I entirely agree that Parliament should not authorise excessive powers without safeguards against abuse. I was simply indicating that there are those safeguards, but it is not good enough to give blank cheques to public officials without the legislation itself containing safeguards.
  Lord Cope of Berkeley: I am grateful to the noble Lord.
  The second question to which an answer is needed—not necessarily this evening, because it may be detailed—is: which statutory instruments confer powers which do not contain the safeguards? The noble Viscount has drawn our attention to some but has indicated that there are possibly many others. At present, none of us can be sure how many.
  If the answer to my first question is that the powers are illegal, it will be essential for the Government, Parliament and others to know which statutory instruments we are talking about. Like my noble friend Lord Marlesford, I do not think that it is good enough to answer, as Ministers have recently done, that the Government have lost count of how many such powers there are and that they do not propose to find out. Apart from anything else, the officials concerned with implementing the various provisions need to be told to stop using them in the way in which they apparently think that they can. It is not good enough for the Government to rely on the belief that the powers may exist but no one will bother with them in the future. We need to know; and it would be helpful to have a list.
  Underlying much of all this is the European Communities Act. Many of the offensive powers apparently stem from European Union agreements, sometimes known as directives. It may be that they have been over-zealously implemented here in being written into UK statutory instruments—the process known as "gold—plating" or it may be that the agreements themselves are defective in the light of the human rights convention. To eliminate the danger for the future, we need to provide both against the terms of the EU agreements themselves and against their overzealous implementation in the United Kingdom. A certificate of compliance, properly "policed", for all statutory instruments, whatever their parliamentary process, would provide a line of defence against gold-plating. I hope to hear a favourable response on that point from the Minister.

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  In addition, the European Union might adopt the practice of the present Government so far as primary legislation is concerned, and indeed affirmative instruments, and make the Commission certify that any agreement at which the Council of Ministers is about to arrive complies with the European Convention on Human Rights. I realise that the convention does not stem from the EU but from the Council of Europe, but all EU members subscribe to it, so presumably all will wish their directives and agreements to comply in future.
  I am mainly concerned with the two questions that I have asked: is it certain that these instruments will become illegal; and will the Minister set out, presumably in writing, which statutory instruments confer these offensive powers? I have no doubt that we shall be told by the Minister, correctly. that the noble Viscount has raised an important issue. It has also become clear during this debate that it is one that will not go away.
  8.15 p.m.
  Lord Bassam of Brighton: My Lords, the noble Viscount, Lord Colville, deserves great credit, and our gratitude, for raising the important subject of preparations for the Human Rights Act. I shall attempt to outline them in general terms, and pick up particular points that have been raised.
  Preparing for the Human Rights Act is a major task. It involves a great deal of work. The main burden of that work has to be shared by all government departments. But there can be no doubt that we all have an important part to play in the process. Debates such as this shine a torch on particular aspects of the preparatory work. This debate has been helpful to all concerned. It has also shown the parliamentary system working at its best.
  The noble Viscount was right to stress the importance of the Human Rights Act, as have all noble Lords who have spoken. It is a defining event in our constitutional history and development. When the Act comes into force, on 2nd October this year, it will place on all public bodies in this country a new and important statutory duty to act compatibly with convention rights—unless, of course, primary legislation prevents them from so doing. The duty is significant and wide-reaching. The Human Rights Act will also mean that all of our legislation must be interpreted in a way that is compatible with convention rights unless it is impossible to do so.
  But the new Act is not simply about compliance by public bodies with the new legal obligation. It is not merely about allowing people to raise convention points in UK courts without having to go to Strasbourg. The Human Rights Act is fundamentally about modernising our society and building a new culture of rights balanced by responsibilities within UK law. Rights and responsibilities go together. They are two sides of the same coin. The new culture that we want to build is one in which the Human Rights Act gives us a shared understanding of what is fundamentally right and wrong, a culture where
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  people recognise the duties that citizens owe to each other and the wider community and are willing to fulfil them—and one in which public authorities understand that the Human Rights Act defines what the basic rights are. It will sometimes require us to be robust about an individual's rights if we are to maintain the rights of others. That is the culture that we want to build. That is what the Human Rights Act is all about.
  There is no question that preparing for implementation of the Human Rights Act is a major task. It involves all public authorities, central and local government, the courts, the police, the utilities and private bodies in so far as they have to perform public functions. Public authority staff must be trained in an awareness of the convention rights and their new obligations. Public authorities are, as a consequence, reviewing the legislation, rules and procedures for convention points.
  I emphasise that we do not expect the statute book to be rewritten overnight on 2nd October 2000. Nor do we pretend that it will be in a state of perfection. We have, after all, been fully signed up to the ECHR for half a century, and ECHR proofing of legislation has been a continuing and deepening process throughout that period. The statutory instruments mentioned by the noble Viscount, Lord Colville, were not prepared without regard to ECHR considerations. Indeed, most were prepared very recently, in the shadow of the Human Rights Act.
  But the convention is a living instrument. It changes and evolves over time to reflect the way in which society has changed. That is one of its great strengths. It means that reviewing our legislation and procedures for convention points must be a continuous process. It cannot be a one-off event.
  Each government department is responsible for reviewing its own legislation and procedures for compatibility with the convention rights. That is not a task which lends itself to bureaucratic or centralised structures. Each individual department must feel responsibility for assessing its own legislation and "take ownership" of the process. That is an important part of building the new culture about which I spoke earlier. We must mainstream human rights awareness throughout Whitehall and the devolved administrations so that considering human rights implications of a particular procedure or policy initiative is an automatic and instinctive part of the decision-making process. Only then can we hope to develop the new culture that we seek. In our view, individual departments are best placed to decide how to do that. Each department has different requirements and different priority areas, and each must satisfy itself as to the compatibility of its own legislation and procedures and processes.
  The noble Viscount, Lord Colville, asks whether we have checked all the statutory instruments issued since May 1997 for compliance with convention rights. The short answer is that we have, or are in the process of doing so, but that the review of a particular statutory instrument or any other piece of legislation is a matter for the relevant department concerned. We have not

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  sought to impose on departments a bureaucratic, centralised structure to review individual items of legislation or to maintain long centrally held lists which purport to show when a particular piece of legislation has been given a green light, as it were. Such an approach would go against our efforts to mainstream human rights considerations throughout government. It would also go against the need for continuous review in the light of the "living instrument" nature of the ECHR.
  But the centre—in this case the Home Office and the Human Rights Task Force—is monitoring the general state of preparation in all departments. I can assure your Lordships' House that departments are well aware of their new responsibilities under the Human Rights Act and the impact of that Act on their legislation. Departments take very seriously the need to consider existing legislation, primary and secondary, for convention points. They are doing this not just because the Home Office has dictated that they should but because they understand that after 2nd October this year—this is an important point—the courts will be able to strike down secondary legislation that is incompatible with convention rights.
  The noble Viscount cited in particular a number of examples of secondary legislation which he believed might raise Article 8 privacy issues. Your Lordships' House is aware that intrusion into the privacy of the individual is an issue that this Government take extremely seriously. Indeed, we are introducing a Bill this Session to ensure that the use of intrusive investigation techniques continues to be regulated for the protection of both the rights of the individual and society at large. Clearly, Article 8 considerations will be at the heart of that legislation.
  But I make an important general point here. Central to the ECHR and the Human Rights Act is the principle of balance. The convention recognises that most of the rights within it are not absolute. There are circumstances where rights can legitimately be limited by the state and where a public authority must be tough on an individual's rights to protect the rights of society as a whole. The convention sets tests by which we can measure whether those limitations are in line with human rights principles. Are they in accordance with the law? Do they pursue a legitimate aim? Are they proportionate? The point is that there are circumstances in which the state is justified in interfering with a convention right, such as privacy. Clearly, Strasbourg recognises this. Simply to show that a particular action by a public authority touches on a convention right does not automatically mean that the right has been violated. The decision as to whether the legislation concerned is compatible with convention rights is not a precise science. After all, everything in the law is arguable. No Minister or official can be 100 per cent sure—certainly not before the Human Rights Act is in force and we see how the courts deal with convention points.
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  I cannot go into the provisions of the particular statutory instruments that the noble Viscount cited, although I shall be happy to pass on his concerns to the Ministers with direct responsibility for the legislation in question.
  I turn to the suggestion of the noble Viscount, that in future the Government should attach to every statutory instrument a statement of compliance with convention rights. The current position has statutory and non-statutory elements. As has been widely recognised in the debate, the statutory provision is Section 19 of the Human Rights Act which requires a Minister when introducing a new Bill to make a statement that in his or her view the provisions of the Bill are compatible with convention rights. Alternatively, if he or she is not able to state that he must explain why the Government wish the House to proceed with the Bill. But Section 19 applies only to primary legislation. Parliament, wisely I believe, did not extend the operation of that scheme to all species of legislation, primary and secondary. I venture to suggest that that is because the Human Rights Act subjects secondary legislation to a number of very powerful safeguards.
  Put simply, the general scheme of the Act does not permit secondary legislation which is incompatible with convention rights. In the first place, Section 6 of the Human Rights Act makes it unlawful for a public authority to act in a way that is incompatible with convention rights unless the public authority cannot act otherwise because of a provision in primary legislation. Unless that Section 6 saving applied, to seek to bring forward incompatible secondary legislation would be in conflict with the Human Rights Act itself.
  As your Lordships are aware, secondary legislation must always be within the powers of the Minister who makes it. It must be (to use the relevant term) intra vires. A Minister has no power to make secondary legislation that is incompatible with convention rights unless primary legislation requires him to do so. The Joint Committee on Statutory Instruments and its Clerk devote much anxious attention to the vires of proposed new secondary legislation. Behind and above these considerations there is the simple fact—a point very ably made by the noble Lord, Lord Lester—that from 2nd October of this year such incompatible secondary legislation can be struck down at any time by a court. It enjoys no special protection under the Human Rights Act. I believe that that is an extremely powerful safeguard which provides the best protection of all.
  My noble and learned friend the Attorney-General has already announced that from the beginning of the current Session a Minister who invites Parliament to approve a statutory instrument subject to affirmative resolution should, as a matter of good practice, always volunteer his or her view regarding its compatibility with convention rights. It is not essential that he or she should do so for the reasons that I have already given. But we believe that it would be odd if there were a debate about a proposed statutory instrument and the Minister made no comment about compatibility with

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  convention rights. We have also said that as a matter of good practice the Minister should always give his or her view regarding secondary legislation which amends primary legislation. Such legislation falls into a special category: it is treated as protected primary legislation under Section 21 of the Human Rights Act. We believe that it is right for the Minister to give his view about compatibility in such cases even where the secondary legislation which amends primary legislation is not subject to affirmative resolution. For example, this may take the form of a letter to the Joint Committee on Statutory Instruments. Detailed guidance to this effect has been issued to departments.
  I should like to deal with particular points raised in the debate. I believe that my earlier remarks have dealt with most of them. I can provide some comfort to the noble Lord, Lord Lester, on the question of the terms of reference of the joint committee to be established. It is our belief that the. terms of reference need to cover such matters as inquiries into general human rights issues in the UK. We also believe that that area should be covered by the joint committee in examining draft legislation and, in more general terms, that it should look at the longer term and perhaps the arguments surrounding the development of a human rights commission within the UK. We hope shortly to make an announcement of the date when the joint parliamentary committee will be set up. Clearly, there are important issues to be settled and debates to be had.
  Lord Lester of Herne Hill: My Lords, I am most grateful to the Minister for giving way. What he has not dealt with is the question whether the human rights committee to be set up shortly—I am not sure what "shortly" means in government terms—will have the power to review the compatibility of secondary legislation with convention rights. Nor has the noble Lord dealt with my point about the giving of reasons for statements of compatibility so that we are able to act as watchdogs and scrutineers in the public interest. The Minister said very little about the role of Parliament but a great deal about the role of the Government and the courts. Perhaps he will address the following two questions. Is there to be a special committee as recommended by the committee chaired by the noble Lord, Lord Alexander, to look at the compatibility of secondary legislation with human rights? Are we to have statements of reasons for compatibility in advance of debates so that those reasons can be scrutinised?
  Lord Bassam of Brighton: My Lords, I am grateful to the noble Lord for again raising those points. I wish to reflect further on what he said. I shall write to him to elucidate our position. I think it likely that the joint committee will want to look at secondary legislation in the context of where legislation is going generally. However the important point—I made it earlier—is that we would expect Ministers in debate in any event to seek to deal with compatibility issues with secondary legislation. I am happy to give the matter further consideration.
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  I turn to points raised by the noble Lord, Lord Marlesford. He made contact with our department this afternoon. I cannot give the noble Lord an answer this evening. However, I am grateful to him and we shall take up his point. I shall write to the noble Lord and share the contents of that correspondence with your Lordships. I shall of course write to noble Lords on other points I have not covered in my responses.
  In conclusion, I stress that the Government are taking preparations very seriously indeed. They affect all public authorities and are wide ranging. Departments are engaged in a review of their legislational processes. It cannot be a one-off matter. It has to be a continuing, everyday part of the public service of this country that we approach matters in this way. We are trying to establish a change of culture across government; and to create a culture where human rights considerations are very much at the heart of public service work. I believe that to be the importance of the legislation and the way in which it affects processes. We all have a real and important part to play in that culture change. Parliament has a clear interest in the compatibility of new legislation. We seek to ensure that the Government's views on compatibility are made clear to Parliament wherever it is necessary to do so. The debate today has enabled us to focus on that real and genuine issue. I am most grateful to the noble Lord for raising these important issues and for providing us with the opportunity to explain our general approach.
  The Earl of Onslow: My Lords, the noble Lord has now spoken for 17 minutes. One of the most important points raised by my noble friend Lord Marlesford, and the noble Viscount, Lord Colville or Culross, was about the powers of entry of officials. This has gone much too far. In the words of the Dunning revolution, the power of the Crown is increasing, has increased, and should now be reduced. The power of the Crown to appoint people to go into people's houses is far too wide. The Minister has not addressed that point in his answer to this House today.
  Lord Bassam of Brighton: My Lords, in a sense I think that I have. The point I sought to make is that all secondary legislation which provides for powers of entry will be subject to a compatibility test. Each department needs to review it. Of course, powers of entry are important. In some instances they can appear draconian. But all governments and legislation have relied on powers of entry for important enforcement. I am sure the noble Earl will agree that the power of entry is an important tool in enforcing well intentioned and well directed legislation.

  Care Standards Bill IFI.1,1
  8.33 p.m.
  House again in Committee.
  [Amendments Nos. 26 and 27 not moved.]
  Clause 7 [General duties of the Commission]
  Lord Rix Lord Rix moved Amendment No. 28: Page 4, line 30, at end insert ("; and
  ( ) the provision of services for particular categories of service user").
  The noble Lord said: Amendment No. 28 is grouped with my Amendment No. 75, and Amendments Nos. 69 and 77. At the suggestion of the noble Lord, Lord Northbourne, Amendments Nos. 47, 48, 76, 121 and 147 have been added. There is a difference between the needs amendment in the name of the noble Lord, Lord Northbourne, and my amendment which refers to particular categories of service users, although they could lead to needs of a special kind.
  Without wishing to make the general duties of the commission too specific—it seems to be overburdened already—I should welcome reassurance that the duty to keep the Secretary of State informed will include information on the provision of services for particular categories of service users. Noble Lords will not be surprised to hear that my concern lies with the common care experiences of people with learning disabilities although the same principle applies to the common care experiences of autistic people, older people or mental health service users. One would expect problems affecting particular groups and good practice to be drawn to the attention of the Secretary of State in the drive to improve quality for service users.
  On Amendment No. 75, in my previous comments on Clause 7 I stressed the importance of the commission having the power to take a strategic look at the way services affect particular groups of service users. Consistent with my earlier comments is my view that the national minimum standards should be derived from particular groups of service users. People with learning disabilities cover a wide range of intellectual impairment; and they often have other disabilities too, but there is a strong case for devising distinctive standards based on common need.
  It would be wholly inappropriate to apply the best care standards for older people to 19 year-olds with a learning disability or indeed vice versa. Yet national minimum standards need to be specific if they are to be meaningful. Perhaps the Minister will clarify that there is nothing in the legislation to preclude the formulation of national minimum standards for particular categories of service users. I beg to move.
  Lord Astor of Hever: I support the noble Lord. I speak also to Amendments Nos. 74 and 77. They are probing amendments to clarify whether the Government will adopt autism-specific standards for registration of residential services. The noble Lord, Lord Rix, has already touched on autism.
  Some noble Lords may have watched on television the disturbing Macintyre report on care homes. If so, they will remember the distress of Richard, a man with autism. There is no doubt that minimum standards
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  were absent in that establishment. Anyone with an understanding of autism could recognise Richard's responses to his maltreatment.
  Autism is a complex developmental disability which affects the way people communicate and relate to those around them. I declare an interest as the father of an autistic daughter. That is why I speak from the Back Benches. There are approximately 500,000 people on the autistic spectrum in the United Kingdom, many of whom will be in residential care homes. With a greater awareness of autism, and more successful early diagnosis, there will be a significant increase in demand for residential care by those with this devastating disability.
  Autism manifests itself differently in each individual. Common requirements for care are an emphasis on structure, consistency, reduction of disturbing stimuli and a high degree of organisation. The absence of these considerations in standards for residential care results, often, in high levels of anxiety for autistic individuals. To help them to reach the greatest level of independence, the environment must be tailored to meet their individual needs.
  Standards of delivery need to include autism awareness. Current arrangements whereby standards for learning disability were set locally have resulted in over-prescription in many cases and positive harm to those service users with autism.
  That point is illustrated by a case study from a National Autistic Society residential service. A young man with autism had a particular need for space and an absence of clutter in his bedroom in order to sleep. Any furniture, other than a bed, caused him extreme anxiety. However, the local authority inspection unit standards required that every adult with a learning disability should have a room with a wash basin. Service managers tried to explain the distress which that would cause, as well as the fact that it would not be used. However, the fixture was insisted upon. Within 24 hours the young man had ripped the fixture off the wall and thrown it out of his room. There can be no justification for such inflexibility, coupled with ignorance of the nature of autism.
  In order to prevent such incidents, the National Autistic Society has pioneered the development of autism specific standards. Indeed, initial funding came from the Department of Health. I therefore hope that the Government will build upon such expertise to raise standards overall.
  Lord Northbourne: It may be for the convenience of the Committee to take my Amendments Nos. 47, 48, 76, 121 and 147 with this group. They address the same issues in perhaps a more general way. In the context of the Government's understandable desire to create national minimum standards, my amendments refer to different minimum standards being relevant to different categories of need and of agency or establishment. The amendments tabled by the noble Lord, Lord Rix, refer to the provision of different services for the different categories of service users. Those tabled by the noble Lord, Lord Clement-Jones,

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  relate to the problem of autism and special requirements for special disabilities or conditions. However, the issue is one and the same.
  I am not satisfied that the Bill empowers the Minister to set different minimum standards for the different categories of establishment, of people or of service users. I envisaged different levels of medical intervention such as those referred to by the Minister during our discussion on a light level of plastic surgery as against more intensive surgery.
  The needs of old people are clearly distinct from those of children. My interest is in the different categories of children and I happen to be a trustee of the Caldecote Community, which contains extremely damaged children. The ratio of adults to children is two to one and the cost per child per year is £75,000. At the other end of the scale are the homes in which the children are less demanding and their needs can be met at less expense.
  I cannot see how, without different standards, the Government can meet the different levels of need. That is unless the standard they set is so low as to accommodate anyone and that would amount to little more than having a roof over their heads, hot water and drainage. On the other hand, an unnecessary and unattainable level of sophistication should not be applied.
  If there is any doubt that the Bill gives the Minister the necessary powers to create different categories of minimum standards, we should put it right now. If we have it wrong and set it in tablets of stone by approving the Bill, we shall be faced with the need for primary legislation.
  8.45 p.m.
  Lord Clement-Jones: Members of the Committee have made clear the purpose of these amendments. I want to speak in particular to Amendment No. 69, standing in my name and that of my noble friend Lady Nicholson, and to Amendment No. 77, so cogently introduced by the noble Lord, Lord Astor of Hever.
  As the noble Lord, Lord Northbourne, made clear, it is a matter of laying down standards and regulations which are specific to particular establishments or service users. The regulations must be flexible but specific, rather than be laid in a blanket form. I was struck by the example given by the noble Lord, Lord Astor, of the young man who had a need for space and an absence of clutter in his bedroom. That clearly illustrates the kind of specifics that we must reach. I look forward to hearing whether the Minister believes that the Bill can give such a level of flexibility.
  Amendment No. 69 attempts to discover whether it is possible for regulations to apply to particular categories of establishment or agency, or particular establishments or agencies, rather than provide a simple set of standards which applies across the board. It is important that the Minister is satisfied that the Bill is sufficiently specific in order for us to go forward with confidence in the belief that all the people whom we are
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  trying to protect and for whom we are trying to provide high quality services will be adequately catered for.
  Lord Hunt of Kings Heath: This is an important group of amendments. I share the view of Members of the Committee that it is important that the regulatory system should recognise the specific needs of particular people and client groups. I hope to reassure them that, in agreeing the legislation, regulation can be targeted at those who are receiving a particular type of care. However, we must strike a balance in order to ensure clear, enforceable standards at a national level. I believe that, in the provisions of the Bill and the detail which will be prescribed under it, we have struck that balance.
  I turn first to Amendment No. 28. We expect the commission to furnish information about the service provided for particular categories of people. The commission will be inspecting a range of services such as homes for children, older people and those with mental health problems. While doing so, it will learn about the availability and quality of provision of services for those and other groups of people. The information and knowledge gained by the commission will allow it to help policy makers. We expect it to provide a variety of information about the quality and availability of care services, including services for particular groups of people, as well as breaking down the analysis in other ways.
  Clause 7 is drafted widely in order to allow the commission to provide different kinds of information. It allows the commission to report information it believes to be important and it allows the Secretary of State to request specific information. I do not believe that the amendment increases that ability and therefore I do not believe that it is necessary.
  I turn to Amendment No. 69 and make it clear that the regulations will recognise, for example, that suitable requirements for the premises of a care home will differ from those of a private clinic. Regulations made under Clause 20(1)(g), relating to the number and type of persons working at an establishment or agency, will have to recognise the different staffing needs of children's homes compared with those of a private hospital. The need for regulations to be applied appropriately and for different regulations to be made under the same power was borne in mind as the Bill was being drafted. Accordingly, Clause 94 provides that any power to make regulations under the Bill,
  "may be exercised either in relation to all cases to which the power extends, or in relation to all those cases subject to specified exceptions, or in relation to any specified cases or classes of case."
  Subsection (5) of the same clause allows a particular power to be exercised to make the same provision in all cases or to make different provisions for different cases. As that provision is already within the Bill, I hope that Members will understand why I should be unwilling to accept the amendment.
  I emphasise that, when it comes to considering the different sorts of standards for different types of care home catering for different types of people, that does not mean to say that the standards expected will be

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  completely different. It is quite likely that there will be some core standards common to all care homes, but beyond that there will be additional standards specific to different categories of care home. The same will apply to children's homes and other establishments and agencies. Clause 21 as drafted already allows the Government to prepare and publish different sets of national minimum standards for different types of establishments and agencies.
  In relation to Amendments Nos. 75 and 77, I believe that the points raised by Members are covered. The noble Lord, Lord Astor, raised some pertinent points about the particular issue of autism. I am satisfied that under the Bill and the regulations we can make specific standards for homes looking after people with autism. As with other arrangements for national minimum standards, of course we shall wish to discuss with those most intimately concerned—both the users and the providers of care—the range and extent of those particular standards. I shall certainly make sure that the noble Lord's comments are very much borne in mind as we take the work of the commission forward.
  I turn now to Amendments Nos. 47 and 48, which essentially cover the same ground. Clause 3 of the Bill gives a general definition of a care home as being an establishment which provides accommodation together with nursing or personal care for people who are, or have been, suffering from an illness, who are disabled or infirm or who are, or have been, dependent on drugs or alcohol. That over-arching definition encompasses a whole variety of different possible care homes for different users.
  However, that is not to say that a single care home will be able to take any type of client no matter what his or her needs. We do not believe that that would be at all appropriate. As I have said, people will have different needs and require different types of care. The needs of the young adult with a physical disability will be different from those of an older person with Alzheimer's disease. Obviously different types of care home will be needed to accommodate them. Homes will he registered to provide certain types of care only, which will be specified in the registration certificates.
  I am grateful to the noble Lord for tabling the amendment because it enables me to say a little more about how that will actually work out in practice. People applying for registration will be required to give certain information in their applications. That will include the type of care that they wish to provide as well as the numbers of people they wish to accommodate, their age range, and so on. The commission may then grant the application either unconditionally or subject to such conditions as it thinks fit, provided, of course, that the establishment meets the relevant regulations and standards. In the case of a care home, the commission will always impose registration conditions relating to the category of care that the home may provide, the maximum number of residents it may accommodate and their age range. Those will be the minimum conditions of registration placed on all care homes.
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  As Clause 10 already allows the Government to make the necessary regulations, I hope that the noble Lord will accept that these particular amendments are not needed.
  I turn now to Amendment No. 76. I reiterate that Clause 21 as drafted already allows the Government to prepare and publish different sets of national minimum standards for different types of establishments and agencies. That point is well covered.
  I turn to Amendment No. 147. I again agree with the noble Lord that there will need to be different standards for different categories of schools. For example, one would not expect boarding schools for children with special needs to have the same standards as mainstream boarding schools. One would clearly expect staff to demonstrate different skills. Clause 86 as it stands already provides the powers that we need to ensure that there are appropriate standards for the full range of different types of boarding schools.
  On Amendment No. 121, I can assure the noble Lord that the clause provides for all three types of persons listed in it to be included in the definition of social care workers. It is a drafting convention to indicate alternatives as "(a), (b), (c)" and not as "(a), or (b), or (c)". I hope that on those grounds the noble Lord will feel that that amendment is not necessary.
  In conclusion, I very much take the points that all Members of the Committee who have taken part in the debate have raised. The standards required must fit the purpose of the particular establishment being inspected and registered. I hope that I have indicated that the Bill as drafted allows that to happen.
  Lord Rix: I am grateful to the Minister for the comprehensive response which he has given all four of us who have moved amendments this evening. To a certain extent I am assured that at least his intentions are honourable and I hope that they will be fulfilled. However, it was such a comprehensive answer that I am sure he will understand if I consult with my noble friend Lord Northbourne, the noble Lord, Lord Astor of Hever, and the noble Lord, Lord Clement-Jones, when we have Hansard in front of us so that we may decide whether we wish to return to this matter on Report. With that in mind, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  9 p.m.
  Baroness Baroness David moved Amendment No. 29:
  Page 4. line 32, at end insert—
  ("( ) The Commission shall receive and consider information on all representations including complaints made in respect of the provision and quality of Part II services in England.").
  The noble Baroness said: Amendment No. 29 is tabled in my name and that of the noble Lord, Lord Clement-Jones, but also in this group are Amendments Nos. 33, 64, 66, 72, 169 and 170A, in the names of other Members.
  My particular amendment aims to give the national care standards commission a duty to monitor all official complaints relating to its remit. Section 26 of the Children Act 1989, with associated regulations and guidelines, set out a statutory procedure for responding to all representations, including complaints about Part III services. An essential element in that was the inclusion of an independent person in the local authority's consideration of all complaints received by the designated complaints officer. Independent advocacy was also an option, although it was not required. In addition, there was incomplete overlap with the procedure for adult services in the National Health Service and Community Care Act which required an independent element only for complaints which went on to the relevant review panel stage. Many local authorities have run the two procedures together and, for that and other reasons such as cost, have never fully implemented the statutory requirement to involve independent people, let alone independent advocates, in their procedure for children's services.
  The guidance of subsequent Social Services Inspectorate reports rightly emphasised the desirability of dealing with as many complaints as possible informally, locally and quickly. That has been used as another reason for not implementing the procedure in full. The independent element is seen as a bureaucratic and time-consuming factor to be avoided even when complaints have not been successfully resolved informally and have been received by the complaints officer.
  As SSI noted, in treating most or all complaints as informal, many authorities also fail to monitor them and thus to collect essential information on which to base the improvement of their services. Complainants, especially children, are often denied their statutory right to have an independent person involved in consideration of their complaint, as well as, arguably, even more valuable support from an independent advocate, which has not been a statutory right. The Utting report, People Like Us, recommended that that should be a right for children who are looked after, and that has been accepted by the Government.
  The procedures have been applicable only to certain services and with some confusion: for example, how best to apply them in respect of children being looked after in private and voluntary settings. Some residential establishments believed that they had to devise their own procedures. As the Bill is currently drafted, there is a risk that some of those sources of confusion will persist. There would be an ideal opportunity in the Bill to ensure that a civil complaints procedure with an independent element based on that of the Children Act with the additional right to independent advocacy be required for all children needing or receiving children's services, especially those placed away from home. However, all complaints or their outcomes could be monitored centrally while the regional children's rights directors would have an important impact on the Government's ability to hear the views of the most vulnerable children and to improve services accordingly.
  Having re-read the Second Reading debate at the weekend, I believe that the Minister is quite responsive to some of those requests. Therefore, I hope that he will be pleased to support the amendment and to accept it when he comes to reply to this group. I beg to move.
  Lord Clement-Jones: I rise to support the noble Baroness, Lady David. In speaking to Amendment No. 29, I shall speak also to Amendments Nos. 33, 64, 66, 72, 169 and 170A. All the amendments spring from a feeling that Clause 20(3)(j) is inadequate in the way that it provides for complaints to be dealt with in the independent sector, whether that applies to social care or healthcare. Certainly, the noble Baroness. Lady David, made a very strong case for complaints to be dealt with in the way that she described.
  However, the amendments provide a somewhat à la carte possibility to the Minister and his advisers. There are several different ways of dealing with that issue. Some would say that what is needed is a consistent form of complaints system which is independent and with clearly defined standards across the board for the independent sector. There are those who would say that the way to achieve that is to bring in the health ombudsman—the Health Service Commissioner set up and codified in the 1993 Act. The amendments, in their various ways, attempt to provide different ways of doing that. Indeed, the possibility of establishing a public complaints director in Schedule 1 is another way of achieving some of the same aims.
  In discussing in some detail the terms of Clause 20(3)(j), it is important that there is a uniform, robust complaints procedure which is acceptable to the commission. Surely that should be one of the requirements for registration of independent healthcare establishments. However, there is no current uniform complaints procedure within the independent healthcare sector. I am told that the BMA has been working on drawing up proposals for such a procedure. As part of its initiative, quite recently—in October—it held a major conference with the medical royal colleges. That involved a wide range of interested parties. The need for a coherent complaints procedure in private healthcare was discussed. Indeed, the BMA continues to have discussions with the various parties in an attempt to generate consensus about a uniform complaints procedure which would give patients a clear avenue for redress.
  Amendment No. 33 attempts to deal with the matter by charging the commission with being proactive in dealing with complaints from the independent healthcare sector. If it is satisfied that a complaint has not been dealt with properly, it refers the matter to the Health Service Commissioner. I wonder what role the Minister believes that the commission should play in assisting interested parties to develop a complaints procedure. I wonder whether he believes that there is a role for the health ombudsman in that process. Also, it is not clear in Clause 20(3)(j) quite what services can form a subject of complaint. Amendment No. 64 is designed to include the word "clinical" so that that is made rather clearer.

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  Another issue is that that complaints system should be compatible with that of the NHS. That has been raised with us by the NHS Confederation. The NHS commissions services from the private sector on behalf of its patients, often in instances where the NHS does not provide a service or where it cannot provide treatment immediately. In those circumstances, there must be a mechanism to lodge a complaint, and a complaints procedure must be able to cope with situations where a patient is passed from the NHS to private care. The information which the independent complaints commission collects about complaints must be in a common format to the NHS information. Indeed, the information collected by any complaints system, whether independent or not, must be in a common format to the NHS information in order to allow those complaints to be dealt with in an adequate fashion.
  Amendment No. 72 is rather simple in its design. It brings in the ability of a complainant to be able to come to the health service ombudsman directly, whether he has been treated in the NHS or in the independent healthcare system. We believe that the remit of the health service ombudsman should be extended to cover the private sector. That means that patients who are not satisfied with the outcome of their in-house complaints procedure would have access as NHS patients to an independent review of their complaint, which is, after all, the object of the exercise.
  The final amendment with which I wish to deal is to Schedule 1. This involves the appointment of a public complaints director working within the commission who would be able to discharge the functions of the commission in taking an overview of complaints made by those who have been treated in the private healthcare sector.
  Some organisations which have briefed us on these Benches believe that cosy relationships may sometimes exist between inspectors and care homes which prevent complaints being investigated properly. This is encouraged by a situation where the same inspector is expected to foster a good working relationship with a home—to work on promoting good practice—and also to investigate misconduct and abuse. For that reason, it is intended to separate out dealing with complaints by creating a public complaints director. We believe that complaints should be dealt with separately from other functions and by different inspectors.
  That is rather a compendium of different possibilities. I do not think we are wedded to any particular amendment on these Benches, but we believe that the Government should have an open mind about improving the system currently laid out in the Bill. We believe it to be wholly inadequate to deal with complaints in a proper fashion.
  Earl Howe: I support these amendments, two of which, Amendments Nos. 33 and 64, are in my name. I should like to focus my remarks on complaints in the context of private hospitals.
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  The key point is that it is not enough for each independent hospital to have its own formal complaints procedure although I do not in any way belittle its importance. The complaints procedure should be a standard, recognised and trusted system which applies across this sector as a whole. It is essential that we understand how proactive the commission will be in bringing this system into being and what role it will play as adjudicator.
  If, in a particular case, someone wanted to complain about the way the complaints procedure operated in a hospital, that requirement comes into sharp focus in the context of the NHS's use of the private sector, as the noble Lord, Lord Clement-Jones, rightly emphasised.
  What happens when an NHS patient moves to a private hospital as an NHS patient and something goes wrong? The system in the private sector needs to be fully compatible with that of the NHS. For the private hospital just to conduct its own internal investigation is clearly not enough in such circumstances.
  I was encouraged to see a recent press release in which the noble Lord's colleague in the Department of Health, Gisela Stuart, said:
  "Under the new arrangements all private hospitals must have proper complaints procedures in place. They must make it clear to patients what to do if something goes wrong. And we will introduce arrangements for independent investigations where patients are not satisfied with how their complaint was handled."
  I hope that the Minister can give us some reassurance along those lines and put flesh on those bones.
  Baroness Masham of Ilton: Perhaps I may ask the mover of the amendments, and perhaps the Minister also, whether a time limit for complaining will be written in. I have always felt in all complaints there should be safeguards so that complainants are not persecuted in any way. Many people do not complain because they are frightened that they will not get a service afterwards.
  Lord Clement-Jones: Perhaps I may reply on behalf of some noble Lords who have tabled these amendments. We believe very strongly in independent complaints systems because we believe that they encourage people to come forward which may not happen in the cosy relationships which I described earlier. We believe people would not have confidence in those adjudicating on their complaints. The commission has a strong duty to ensure the complaints system is adequate. That is why we wish to see incorporated into the Bill a fully independent system and, if possible, the inclusion of the Health Service Ombudsman.
  Lord Hylton: On this group of amendments dealing with complaints, it is possible that England and Wales may be able to learn something from experience in Northern Ireland. In that region, there are statutory establishments known as training schools which take a variety of young people who are at risk and who sometimes have offended. In recent years, there has

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  been organised an independent advocacy service which enables aggrieved individuals to articulate their grievances and complaints in a much better way.
  The result is that some frivolous and invalid complaints can be eliminated at an early stage and the more valid ones can be heard and dealt with more effectively. I happen to know about that as president of a voluntary organisation called NIACRO which has had responsibility for the recruitment and training of those independent advocacy persons. That is perhaps particularly relevant to establishments which are taking young people or others who may be, for one reason or another, relatively inarticulate.
  9.15 p.m.
  Lord Laming: Anybody that takes on the responsibility for licensing any activity and determining that certain people are fit to manage those activities must have not only a strong complaints procedure but also a complaints procedure which has within it an independent element which can reassure users, carers and, indeed, the rest of us that complaints will be taken seriously.
  Complaints can be mischievous. That is one of the reasons why procedures need to be in place. But very often they are also an early indication that something is going wrong in a particular establishment or centre; that there is something not right in the way in which the activities are being managed.
  It is extremely important that when complaints are made, they are seen to be taken seriously. For that reason, I hope that the Minister will consider carefully the thrust of the amendments. Earlier, we talked about the commission's responsibility to promote the wellbeing of users of services. The other side of the coin is that the commission should take seriously any concerns which anyone has about the quality of service which is delivered.
  Lord Hunt of Kings Heath: This has been an important debate, I very much agree with the sentiments expressed by the noble Lord, Lord Laming, when he talked about the absolutely essential need for complaints to be taken seriously and when he referred to the indications that complaints give in relation to the adequacy or otherwise of the services which are under consideration.
  I want to make it clear to noble Lords that we are determined to ensure that proper arrangements are put in place for the effective handling of complaints. It will be a condition of registration that those running regulated establishments have complaints systems and publicise them. Furthermore, for the first time, we are determined to introduce an independent element to investigate cases where the complainant is not happy with the way in which his complaint about private healthcare has been handled locally.
  This group of amendments concerns matters relating to complaints generally and the specific issues relating to the investigation of complaints against registered healthcare providers.
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  Perhaps I may deal first with the general points. I fully agree with my noble friend's view, expressed through Amendments Nos. 29 and 66, that the commission should have an active role in pursuing complaints about regulated services. That is a function which is exercised currently by local authority and health authority inspectors. Investigation of complaints about breaches of standards and regulations often provides a source of information about the overall fitness of an establishment which does not surface during inspections. Sadly, we know that a few unscrupulous individuals have been adept at concealing abusive behaviour.
  Therefore, we intend that the new commission's role in complaints should be firmly related to its regulatory functions in a variety of ways. First, each registered service will have to meet standards with regard to its internal complaints procedure. Those will be monitored during inspections, and service users will be asked about their level of satisfaction in relation to the handling of complaints.
  Secondly, if a complainant has a concern which he is not confident to make to the operator of a service, the commission will accept complaints directly.
  Thirdly, all the standards will contain a section on the whistle-blowing procedures which each service should have. I hope that that answers one of the points made by the noble Baroness, Lady Masham. That is included in Fit for the Future?, the current consultation document.
  On the matter of an independent review panel, it is important to emphasise both the independence of the registration authority, which represents a change from the current situation, and its wide powers of investigation. As my noble friend Lady David suggested, under the current arrangements the health and local authorities responsible for registration of services may also be providers, so their independence could, under certain circumstances, be brought into question, as I know has been the case on occasion. One of the key features of the new arrangements is the full independence of the regulatory body.
  In addition, the regulatory authority will have wide powers to investigate any alleged breaches of regulations or standards. Indeed, alleged breaches of that nature will be at the heart of the vast majority of disputes between service user and service provider. Therefore, any service users involved in such a dispute who consider that their complaint has not been dealt with properly can be assured of an independent investigation by the regulatory authority, which may result in enforcement action being taken.
  A further level of independence arises should any enforcement action be taken to remedy deficiencies in a service; for example, through prosecution, the imposition of certain conditions, or even cancellation proceedings. In each case, either a court or a tribunal will review independently the evidence and the outcomes.

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  I hope that I have convinced noble Lords that the concept of an independent review panel is not necessary to the functioning of the commission which, in fact, has powers which may prove more effective in securing any improvements in services which may be necessary. Reputable providers, of course, will have nothing to fear from any of these measures. However, the disreputable ones will be dealt with vigorously.
  I now turn to matters relating specifically to healthcare services. I fully share the concerns of noble Lords as expressed in Amendment No. 64 that clinical complaints need to be investigated. I am pleased to be able to reassure noble Lords that the drafting of Clause 20(3)(j) refers to all services, including clinical services.
  In regard to Amendments Nos. 33 and 72, I also share the concern of noble Lords about the way in which complaints about private healthcare are dealt with at present. We are committed to introducing proper complaints arrangements for independent healthcare in which service users will have confidence.
  First, it will be a requirement of registration for all hospitals and clinics to have in place a local complaints procedure which can address all complaints, both clinical and non-clinical. That will need to be well publicised to users of the service and we expect there to be a clearly identified person in each private hospital responsible for handling complaints. We hope that the majority of complaints can be effectively dealt with at that level.
  However, we recognise that some complainants will be dissatisfied with the way in which their complaint has been dealt with locally and, for the first time, we are committed to introducing an independent complaints investigatory mechanism. We believe that it is wholly unsatisfactory that such arrangements are not in place now. Therefore, on the principle of the issue, I do not believe that there is anything between us.
  On the mechanism for achieving that, I believe that there is room for debate. Certainly the Health Service Commissioner does an excellent job, but his post was established to investigate complaints in the NHS, not the private sector. I am not convinced that it is necessarily right to add those responsibilities to his office. However, currently we are considering how best to deliver what we all want. Our intention is to introduce appropriate amendments, either here or in another place, before we have finished our consideration of the Bill.
  To the noble Earl, Lord Howe, I say that it is my understanding that if NHS patients receive care in a private hospital as a result of a contract arrangement between the NHS and a private sector operator, they are deemed to be NHS patients and in that respect the NHS complaints system operates.
  I turn to Amendments Nos. 169 and 170A. I hope I made clear in my previous comments that dealing with complaints is integral to the functioning of the
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  commission as it exercises its powers. For example, if a complaint about the furnishings or equipment in a registered home is made, and not handled to the satisfaction of the complainant, the commission's inspectors could investigate further. If they upheld the complaint and found that a breach of standards or regulations had occurred, they could require the proprietor to make improvements.
  Action would need to be taken on a day-to-day basis and not be referred to a person such as that envisaged in Amendments Nos. 169 and 170A. I suggest that identifying a separate director for complaints is an issue that is best left to the chief executive of the commission to determine as an operational matter. Of course, he or she will want to set clear performance objectives for inspectors and other staff and have a monitoring system in place to ensure that the whole issue of complaints is dealt with satisfactorily.
  I hope that I have indicated to the Committee that we take the issue of complaints seriously. The commission has a vital role to play in that regard. It will provide the independent element necessary and, as a result, members of the public can feel confident that, in using the services encompassed within the Bill, a proper complaints system will be in place.
  Lord Clement-Jones: Before the noble Baroness, Lady David, responds, perhaps I can make a few points. That was one of the most helpful responses the Minister has made this evening. A number of green shoots were lurking in his remarks which may grow into something larger as the Bill progresses through the House. In particular, what we need, even as regards matters in the Bill, is a little more teasing out of the chapter and verse. For instance, the Minister says it is a condition of registration that specific establishments must have a complaints system. Indeed, he went on to say that the requirement would be to provide an independent element to investigate complaints. On the face of it, the Bill makes no provision for that. However, that is a helpful indication of the way in which the Government's mind is working.
  It was extremely helpful for the Minister to say that the commission should have an active role in pursuing complaints and that it will accept complaints and have wide powers. But again, that is not obvious from reading the Bill. In order to accept his view—I take it in good faith—that an independent review panel and public complaints directors are not needed as part of the commission, it is important that he provide us with further information as to the regulations proposed and as to how the Bill might be amplified in that respect. I appreciate his statement that alleged breaches of standards will be investigated by the commission and also that, within his definition, "services" is wide enough to encompass clinical services.
  I was interested to hear the Minister talk of complaints in the independent healthcare system and the fact that there needs to be a clearly identified person in that regard. But, further, he said that the Government are committed to introducing an independent complaints mechanism and that there is no difference in principle between us. As I explained

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  from these Benches. in a sense we were presenting some à la carte possibilities; the mechanisms are myriad, it is the principle that matters. The Minister's statement that he was considering how best to deliver that independent complaints system for private healthcare was a strong indicator.
  I hope that the Minister will bring forward his proposals for amending the Bill at the Report stage here. Otherwise, we will engage in fruitless discussions, coming up with a further set of amendments, none of which will probably satisfy the Government. It would be much more satisfactory if the Government came back at Report stage with their amendments.
  Baroness David: This has been an extremely useful and rewarding debate. It is clear from the number of amendments put down that the complaints procedure is not satisfactory as it stands in the Bill. I was relieved when the Minister said that he would come forward with amendments. As the noble Lord, Lord Clement-Jones, said, I hope that we shall have them at Report stage and that the Minister will reassure us about that. It would save a great deal of time, and avoid our putting down more amendments at the next stage, if he produces them, as I hope he will.
  It is clear that the provision in the Bill is not satisfactory. We need the independent element which I stressed in my amendment, as did many other Members of the Committee. If we could have the assurance that we shall receive the amendments at Report stage, I should be happy to withdraw my amendment.
  Lord Hunt of Kings Heath: I said that we would hope to introduce amendments either here or in another place. The matters are important and deserve careful consideration but while I should like to give the undertaking for which my noble friend asks, I am not in that position. It is our intention, before the Bill has completed its passage through Parliament, that amendments be brought forward.
  Baroness David: I have to accept that, but if the Minister could put pressure on his department, it must be possible to produce something in another fortnight and I hope he will try to use his charm and pressure to bring amendments forward. However, I must now withdraw my amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 30 not moved.]
  9.30 p.m.
  Lord Clement-Jones Lord Clement-Jones moved Amendment No. 31:
  Page 5, line 6, leave cut from ("than") to end of line 8 and insert ("the "excepted services" as defined by subsection (8) below.
  (8) The "excepted services" means the provision of—

  (a) medical or psychiatric treatment, or

  (b) listed services (as defined in section 2).

  (9) The Commission shall have the general duty of securing improvements in the quality of excepted services in independent hospitals (as defined in section 2) and shall carry out this duty through the contracting of inspections with the Commission for Health Improvement ("CHI") established by the Health Act 1999.
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  (10) For the purposes of subsection (9) above the Commission shall ensure that the relevant independent hospital pays the full economic costs of any inspection.
  (11) The standards applied by CHI on any such inspection shall be those which it applies in any comparable inspection of a health service hospital.").
  The noble Lord said: We were talking earlier in the debate about standards being consistent and seamless across the NHS and the independent healthcare sector. That is precisely what the amendment seeks to do. We on these Benches could have been more radical and the noble Lord, Lord Laming, has perhaps been the most radical among us, in trying to abolish Clause 2 in its current form. I have a huge amount of sympathy with that approach. I believe that independent healthcare has been bolted onto the Bill in an inappropriate and last-minute fashion.
  However, I have been thinking carefully about the way in which the Government put their case for a separate regulator and subsequently mentioned, as the Minister did today, the difference between regulation of the independent sector and management of the NHS. I have no doubt that we will repeat that mantra for the remainder of the Bill as it goes through the House.
  It struck me that the best way of dealing with the matter is simply to say, "Let's not worry too much about the registration mechanisms, let's have a separate registration mechanism for the independent healthcare sector. It would be entirely appropriate and deals with the issue of regulation. But when it comes to standards, let's try to ensure that across the board the same standards are applied on inspections in the independent healthcare sector as in the NHS." That seems to me the common-sense formula.
  If you asked ordinary people in the street whether they thought there should be separate and different standards in private healthcare from the NHS, they would be horrified. They would have thought it the Government's duty to ensure that standards were common right across the board. That is what the amendment aims to achieve. It proposes that the
  commission could contract,
  "with the Commission for Health Improvement',
  set up under the Health Act 1999, to carry out its function of inspecting the independent healthcare sector. Consistent standards between the NHS and the independent healthcare sector could then be ensured. CHI would be in a position to use the expertise gained from inspecting NHS services and facilities and the same limited pool of expertise could be used for the independent healthcare sector. We propose that the relevant independent hospital pays the full economic cost of any such inspection. No one is suggesting that taxpayers should pay for CHI to inspect private healthcare. That was certainly a concern in the minds of Ministers when we tabled amendments to the then Health Bill last year.
  This measure does not overturn the apple cart; it simply ensures—as I am sure the majority of Members of the Committee who have spoken in the debate today are intent on ensuring—that there is a common and consistent standard across both sectors. The BMA

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  supports this measure and I know that there is considerable professional support for this set of amendments. It seems to be common sense that those people with expertise as regards review and inspection of NHS facilities should also take responsibility on a sub-contracted basis for carrying out that inspection in the private healthcare sector. I beg to move.
  Earl Howe: I can be brief. I rise simply to endorse everything that the noble Lord, Lord Clement-Jones, has said. When we debated the then Health Bill on 17th June last year, the noble Baroness, Lady Hayman, said, in relation to the document entitled Regulating Private and Voluntary Healthcare,
  "the consultation document does, however, acknowledge that a regulator might wish to contract with another body, such as the commission for health improvement … in order to help carry out … inspections. That is an issue on which we explicitly invite views".—[Official Report, 17/6/99; col. 459.]
  The view of these Benches is that an arrangement of that kind, a standing arrangement, would be a neat way of squaring the circle. It would be a neat way of creating at a stroke a means of delivering what we all want to see, which is consistency of clinical and care standards across the private and public sectors of healthcare, and consistency of enforcement. The Government's position on using the Commission for Health Improvement to regulate the private sector directly is well documented. I do not want to re-open that debate this evening. What we are talking about here is using the Commission for Health Improvement in a strictly limited role as a sub-contractor to the NCSC for a fee to inspect hospitals and monitor standards of care. Is the Minister now in a position to say what conclusions the Government have reached as regards this wider role for the Commission for Health Improvement?
  Lord Laming: If Clause 2 is to remain, I hope that the Minister will see this as a lifeline that he can grasp and hold to himself. I support the measure.
  Lord Hunt of Kings Heath: I fear that I am not yet desperately diving for that lifeline. Although the noble Earl, Lord Howe, does not want us to go back over old ground, I must say that the Government's position in relation to the Commission for Health Improvement rests very much in the first instance on the different set of arrangements which we believe to be made in relation to the regulation of private healthcare and the management of the National Health Service. It is fair to say—this was always intended—that the Commission for Health Improvement was set up expressly to improve quality in the National Health Service. It has a major task to carry out in doing that. I do not believe that it would be right for the commission to be diverted from that task by taking on the job of inspecting private sector healthcare.
  The very purpose of setting up a national care standards commission is to do that, as well as to regulate and inspect social care. It will have independent inspection teams which will be drawn from those people who are well able to carry out the
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  task. It will also be able to draw expertise from elsewhere, including from the Commission for Health Improvement, to help it in its work. I refer the Committee to Schedule 1 which I believe contains the ability for people to be seconded from agencies such as the Commission for Health Improvement to the care standards commission to help it in its work.
  However, the amendment goes further. It would require the Commission for Health Improvement to use the same standards in its inspections of the private sector as it does in its inspections of the NHS. That ignores the fact that we shall be setting out clear standards for the private sector which the commission's inspectors will be charged with enforcing.
  It would be wrong to create a rigid requirement on the national care standards commission to have to subcontract all its inspection work to the Commission for Health Improvement and to require exactly the same set of standards in this sector as in the NHS. I accept that inevitably in the development of national minimum standards the commission is bound to be informed by the work of NICE, CHI, national service frameworks and other service developments within the National Health Service, but, at the end of the day, it must be down to the commission itself to develop those standards and to have its own inspection arm in order to ensure that those standards are being kept to.
  Lord Clement-Jones: I am disappointed by the Minister's reply, although it was not unexpected. The Minister has recited the mantra of regulation and management once again. He said that CHI would be diverted if it were to carry out these inspections on contract from the commission. However, he said that the commission will have its own independent inspection teams which might have secondees from CHI. It seems to me that if one is going to have secondees from CHI, why on earth not simply—
  Lord Hunt of Kings Heath: The ability to second some members of staff from CHI to the commission is on a different scale to what is proposed in the amendment. That would involve the Commission for Health Improvement in a major exercise of work at a time when we wish it to focus on its very important responsibilities in relation to the National Health Service.
  Lord Clement-Jones: Of course it has very important responsibilities in relation to the National Health Service. But it is a body whose expertise is being built up; it will be an extremely valuable inspection force. It seems to us on these Benches that with a little bit of additional resource it could do extremely well in regulating the independent healthcare sector as well. If one is going to second from CHI into the commission, why not simply sub-contract to CHI rather than have all this business of secondment? That of itself recognises that CHI is a receptacle for expertise.
  Lord Hunt of Kings Heath: I come back to the point I raised: it is a very different issue. It seems absolutely

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  sensible and a matter of common sense for an organisation such as the Commission for Health Improvement to be able to second staff from time to time to the commission—and, indeed, vice versa. But the noble Lord's amendment describes a relationship much more fundamental than that in which the sub-contracting of inspections is mandatorily passed over to the Commission for Health Improvement. That is very different.
  Lord Clement-Jones: Before finally replying, perhaps I may ask the Minister whether or not he would accept an amendment that said the commission "may" sub-contract to CHI?
  Lord Hunt of Kings Heath: No. As I said, the Bill already allows for the secondment of staff. I should have thought that that would have met the noble Lord's position.
  9.45 p.m.
  Earl Howe: In that case, why did the Government's consultation document specifically invite views on the possibility of the regulator contracting—as I quoted—with another body such as the Commission for Health Improvement? If they were not serious about that proposal, why did they invite views on it?
  Lord Hunt of Kings Heath: We are an inclusive Government who wish to listen to what people have to say in this area as in other areas.
  Lord Clement-Jones: I apologise for once again interrupting the Minister. Perhaps I may ask him how many representations he has received against the notion of sub-contracting to CHI.
  Lord Hunt of Kings Heath: The noble Lord has floored me on that because I do not have the results of the consultation to hand. However, I would again draw the distinction between the ability of the commission to employ various mechanisms to enable it to do its job effectively, including the secondment of staff, and the very heavy-handed approach which the noble Lord has taken in this amendment. It would take away all discretion from the commission.
  Lord Clement-Jones: I thank the Minister for that further reply. I would have thought that, rather than being heavy-handed, this amendment is an elegant one. However, there is no accounting for taste in these matters.
  I understand the Minister's objections and I appreciate why ha has become so animated when responding to the issues raised here. However, he mentioned that, if inspections by CHI were made as a matter of course, then the amendment would require the same standards. Yes, the amendment does require the same standards. That is precisely why it is the second half of the Minister's reply that worries me greatly. It appears that, by saying that the Minister will issue standards under Clause 21 and so forth, the possibility exists of having two separate sets of
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  standards, one for the independent healthcare sector and one for the NHS. That is exactly what this amendment seeks to avoid. Simply to say that the commission is bound to be informed by the experiences of NICE and CHI is not sufficient.
  However, I appreciate that we have different perspectives on the matter, although I believe that after our discussions today, the Minister's view is in a minority in this Committee. Inevitably we shall have to return to the matter at Report stage. In the meantime, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 7 agreed to.
  Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 32:
  After Clause 7, insert the following new clause—
  GENERAL FUNCTIONS OF THE ASSEMBLY
  (" )—(1) The Assembly may charge a reasonable fee determined by it in connection with the exercise of any power conferred on it by or under this Act.
  (2) The Assembly may provide training for the purpose of assisting persons to attain standards set out in any statements published by it under section 21.").
  The noble Lord said: We now move on to more serious matters; namely, the question of fees. In moving this amendment I propose to speak also to Amendments Nos. 171 and 172. I should like to speak to the later amendments first because these relate to the national care standards commission. I shall then deal with Amendment No. 32, which provides similar powers for the Welsh Assembly.
  Amendment No. 171 is very straightforward. It will allow the national care standards commission to run conferences, seminars and other training events for people who are registered with it—and indeed for anyone else who is interested in attending. The purpose of such events will be to improve the quality of services by helping people to meet the national minimum standards published by the Secretary of State under Clause 21. This is a sensible amendment and forms an important part of the commission's role in trying to ensure that good standards are reached.
  Amendment No. 172 deals with fees. In general, the intention is that the running costs of the commission will be met from the fees paid by the regulated services. Fees will be set by the Secretary of State and will consist of a registration fee and an annual fee. These fees will cover the reasonable costs of regulation. However, there are some activities that the commission will carry out which it would not be fair to expect all regulated services to pay for. This amendment allows the commission to charge fees for these additional "non-regulatory" activities.
  For example, the commission will be able to give advice and help to applicants, if requested, before they submit their application for registration. In practice, this type of advice can involve several hours' work and include meetings, site visits and so on. The amendment allows the commission to set its own charges to recover the costs involved. It also allows the commission to charge for any training events it puts on. In both cases,

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  the fees must be reasonable and should cover only the costs involved. It may be helpful to draw attention to paragraph 4 of Schedule 1 in this respect. The paragraph places a general duty on the commission to carry out its functions effectively, efficiently and economically. Finally, the amendment prevents the commission charging any fees other than those set out in the Act, without the approval of the Secretary of State.
  I turn now to Amendment No. 32. This amendment has the effect of allowing the National Assembly to have the same powers for Wales as are proposed for the national commission in England in relation to providing training and charging fees. The only difference is that the assembly will not of course require the consent of the Secretary of State for any fees it wishes to charge. The provision appears as a new clause as Schedule 1 does not apply to the registration authority in Wales. I beg to move.
  Earl Howe: I have a question about fees. How will the funding streams for the social care and the independent healthcare sectors operate? Will money received from each sector be ring-fenced so that there is no cross-subsidy between the social care sector and the independent healthcare sector?
  Lord Hunt of Kings Heath: It is a little early for me to be able to answer the noble Earl concerning the financial arrangements when the commission is up and running. As I said, the intention overall is for the commission to be funded through fees from the establishments to be regulated. The fee structures will necessarily have to relate to the costs of the regulation of those establishments, as is the case at the moment. But to talk about ring-fencing may be too rigid an approach to budget setting within the commission, although there will no doubt need to be some consideration of fairness in relation to the resources coming to the commission and the actual service provided.
  Lord Jenkin of Roding: I am a little unhappy about this proposal. Many establishments fear that they will be saddled with very considerable costs by way of fees for their own regulation. I have been looking through the Bill and through the Explanatory Notes, and as I can find no indication of what the likely cost of the commission will be, I have therefore been unable to form a view of what the level of fees will be. Where Bills provide that the costs will be met by the Secretary of State, there is a financial memorandum which tells us the additional cost to public funds of implementing the legislation. I may have missed it in what is a quite long volume of Explanatory Notes, but I am beginning to wonder whether we are being asked to buy a pig in a poke.
  We are being asked to pass amendments that will allow the commission to charge fees. The Minister told the Committee that the general intention is that fees will cover the cost of the regulatory activities, yet none of us seems to have the slightest idea of what those will
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  be. I do not expect the Minister to produce the information today, but I really do think that we should have some kind of financial information before we reach the next stage; otherwise it will be difficult to advise some of the organisations that are to be regulated as to what they will face. Perhaps it would not be unreasonable to ask the Government to produce some figures on what all of this will cost. It would be helpful if we could have those figures by Report stage.
  Lord Hunt of Kings Heath: I shall do what I can to provide information to noble Lords in relation to the issue of financing the commission. It has been government policy since the Registered Homes Act 1984 that providers should meet the reasonable costs of regulation. The White Paper, Modernising Social Services, stated the intention that the new regulatory system would be self-financing.
  As I said earlier, much detailed work has to be undertaken before one can come up with a new fee structure. A full study of the regulatory impact will be carried out, with providers being given an opportunity to give their views and to prepare for paying fees, particularly in those areas where they have not previously paid fees.
  It is important, as I said in reply to the noble Earl, Lord Howe, to have a fair system which reflects the cost of regulating different services. It seems to me that it would be unreasonable, for instance, for small providers to pay the same fee as large providers. There are examples in the current fee structure which will need to be examined carefully, but I shall be happy to see what other information I can obtain and to write to noble Lords.
  Earl Howe: Before we finish this group of amendments, perhaps I may ask the Minister a further question. It is prompted by the pertinent observations of my noble friend Lord Jenkin and relates in particular to Wales. What mechanisms will be put in place to prevent the Welsh Assembly from, as it were, using this provision to create an additional income stream and charging fees that do not relate in any meaningful sense to the cost of inspections? What is "reasonable" in this context? It would be helpful if the Minister could give an idea of the Government's thinking, as well as an indication of what mechanisms might be put in place to prevent the Welsh Assembly—this is not to impute any bad motives to its Members— from perhaps regarding this as a useful income stream.
  Baroness Masham of Ilton: As Wales has been mentioned, perhaps I may ask about Scotland and Northern Ireland.
  Lord Hunt of Kings Heath: The Bill does not relate to Scotland and Northern Ireland, although a later amendment tabled by the noble Lord, Lord Laming, addresses issues relating to the need for co-operation and the sharing of information between the four countries of the United Kingdom.

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  The noble Earl, Lord Howe, raised a question about Wales. It stretches the imagination to envisage the Welsh Assembly using this as a huge income generation pool in order to raise resources for other services. I have no doubt that the Assembly will wish to take full regard of the general principles under which fees have been charged in the past. As in England, there will undoubtedly be full consultation between the Assembly and organisations in Wales, with full debates in the Welsh Assembly—although I am treading on rather dangerous ground in commenting on the activities of the Welsh Assembly. I believe that, overall, a sensible approach will be taken, and the general principle that providers should meet the reasonable costs of regulation will be followed, both in England and Wales.
  On Question, amendment agreed to.
  [Amendment No. 33 not moved.]
  10 p.m.
  Clause 8 [Inquiries with respect to the Commission]:
  Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 34:
  Page 5, line 10, at end insert—
  ("(1A) The appropriate Minister may cause an inquiry to be held into any matter connected with a service provided in or by an establishment or agency.").
  The noble Lord said: In moving Amendment No. 34, I speak also to Amendments Nos. 35 and 37. Clause 8 of the Bill enables the Secretary of State to set up an inquiry into the way in which the commission has exercised its functions if there are any concerns that it may not have exercised them properly. However, as currently drafted, this clause applies only to the commission and the exercise of its functions and not to the establishments and agencies that it regulates. The purpose of this amendment is to extend the clause in order to allow the Secretary of State to set up a statutory inquiry into any matter connected with a regulated service. For example, if a consultant surgeon working in a private hospital is found to have unusually high death rates among his patients, the Secretary of State will have power to set up an inquiry to investigate. Without these amendments, he would be unable to do so.
  The intention is that the power will be used only very rarely. In the normal course of events, the commission will pick up any problems in the establishments and agencies that it regulates. This may happen during one of its routine visits or inspections, or the commission may be called in to investigate a particular complaint, concern or allegation about the establishment. If the commission discovers that standards are not being met or that regulations are being breached, it will use its powers to ensure that the matter is put right as quickly as possible. If it is not sorted out satisfactorily, the commission can take appropriate enforcement action. In the vast majority of cases, we expect that to be sufficient to sort out any problems. But we consider it essential that if the problem is extremely serious or it falls outside the regulatory functions of the commission, the Secretary of State should have the
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  power to set up an inquiry to investigate it. The amendment also gives the Welsh Assembly the same power.
  Amendment No. 35 is consequential upon the main amendment and allows the Secretary of State or the Welsh Assembly to direct that an inquiry under subsection (1A) shall be held in private. Amendment No. 37 is consequential on the main amendment and ensures that subsections (2) to (5) of Section 250 of the Local Government Act 1972 apply to any inquiry set up under Clause 8. I am sure that noble Lords recognise the importance of these amendments and I commend them to the Committee. I beg to move Amendment No. 34.
  Baroness Masham of Ilion: Can the Minister say whether the process will be speeded up? If a consultant is suspended on full pay for years and years, as has happened, it is a waste of money and the health service is faced with great expense.
  Lord Hunt of Kings Heath: We are all aware of the length and cost of some inquiries. I cannot tell the noble Baroness that I have a magic wand to wave to enable such inquiries to be speeded up. A number of factors come into play to explain why some inquiries take such a long time. I believe that these occasions will be few and far between. The essential point is that sometimes it is necessary for such an inquiry to be set up and we are particularly keen that the Bill should allow that to happen.
  On Question, amendment agreed to.
  Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 35:
  Page 5, line 11, after ("State") insert (", or, as the case may he, the appropriate Minister.").
  On Question, amendment agreed to.
  Lord Laming Lord Laming moved Amendment No. 36:
  Page 5, line 14, at end insert—
  ("( ) The Secretary of State shall publish all reports made by the Commission as a result of an enquiry.").
  The noble Lord said: I am sure that the Committee agrees that sometimes, for a variety of reasons, it is best for inquiries to take evidence in private. I believe that as a quid pro quo there should be a commitment on the face of the Bill that inquiry reports are published. The findings of inquiries should be public documents as a matter of good practice. This is related to freedom of information and the confidence of the public. I hope that the Minister is able to accept the amendment. I beg to move.
  Lord Rix: I support my noble friend on this issue. Noble Lords may recall that the national development team for learning disability—mental handicap in those days—had to keep its reports secret. About 10 years ago, there was a tremendous row about that. The then Minister for Health, the right honourable Kenneth Clarke, accepted that such secrecy was totally

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  inappropriate and the necessary arrangements were made. I think the same argument applies to this amendment.
  Lord Hunt of Kings Heath: I thank the noble Lord, Lord Laming, for proposing Amendment No. 36, which would oblige the commission to publish the report of an inquiry. We would normally expect an inquiry's findings to be published. However, I am advised that there may be circumstances where it would be inappropriate for the detail of the findings to be publicised. The Bill already provides for inquiries to be held in private, for instance in cases involving sexual abuse of children. Although the report could protect the identity of those concerned by omitting their names, there may be other circumstances in which it would not be appropriate to publish the details of the inquiry. Therefore, I cannot accept the noble Lord's amendment in its terms which would require all inquiry reports to be published. However, I should be agreeable to discussing the issue further with the noble Lord to see whether we can find a way through.
  Lord Laming: I am grateful to the Minister for that extremely helpful reply. I would not wish anything to be published which would be damaging to vulnerable people. If it is possible to find a form of words which achieve the objective of the amendment while protecting vulnerable people, I shall be very happy. With that assurance, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 37:
  Page 5, line 18, at end insert ("; and references in those provisions as so applied to a Minister shall be taken to include references to the Assembly").
  On Question, amendment agreed to.
  Clause 8, as amended, agreed to.
  Clause 9 [Requirement to register]
  Earl Howe Earl Howe moved Amendment No. 38:
  Page 5, line 23, leave out ("of any description").
  The noble Earl said: I realise that the purpose of the amendment is impossible to discern from its wording. It is designed purely as a device to enable me to ask the Government about their policy on the registration of domiciliary care agencies. The Explanatory Notes state that registration of domiciliary care agencies will not be required in the first instance, although it will be possible for an agency to apply to register voluntarily. However, any local authority or NHS body which carries on a domiciliary care agency will be required to register from the outset; and any outside domiciliary care agency with which it does business must be registered as well.
  Why have the Government approached the matter in this way? The point of registration is that the public should be protected. It is the domiciliary care agencies which do not register about which we should be concerned. Those are the services which deal typically
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  only with private users. If I, as a user, receive via an agency a service commissioned by a local authority or my local NHS trust, I have the reassurance that the agency is above board, because it is registered, and that if anything goes wrong I can go straight to the local authority and get it to sort the matter out.
  That is entirely as it should be. However, if I contract through an agency personally to arrange my own care, why should I not be able to rely on that agency equally? If it is registered, well and good, but it might not be. If it is not, I should not have the local authority or anyone else to turn to. I do not understand that, nor do I understand how paragraph 56 of the Explanatory Notes is reflected on the face of the Bill. Perhaps the Minister can enlighten me. I beg to move.
  Lord Clement-Jones: I support the noble Earl. I must admit that I was one of the small minority who did not immediately understand the thrust of the amendment. I am sure that we shall debate the issue further when we reach Clause 30. In the meantime, I believe that the issue is opaque and it is difficult to understand why the Government have taken this approach to domiciliary care. Surely, there should be one common system across the board.
  Baroness Masham of Ilion: This is a most important matter. If the Government lose the chance to round up the cowboys, they will not protect the many vulnerable people. I hope that the Minister, who understands such issues, will look at the problem and do something about it. We greatly want to improve the Bill and I fully support the noble Earl, Lord Howe.
  Lord Hunt of Kings Heath: The first point to be made is that for the first time the Bill introduces a statutory regulation system for domiciliary care. Although it might not go as far as Members of the Committee would wish, one should acknowledge that it is a new development that has been widely welcomed. As has been suggested, the regulatory system will not in the first instance require compulsory registration for all domiciliary care agencies.
  We believe that we are taking a sensible approach. The national care standards commission is embarking on a completely new area of regulation with untested definitions. There are potential difficulties in relation to who will be covered and who will not. With a compulsory registration scheme, it would be an offence not to be registered and the commission could be at risk of spending all its early days taking through difficult test cases on whether a particular agency should register or not. That would detract from its important task of inspecting and scrutinising services such as care homes which are already regulated.
  It is our consideration that at such a crucial and challenging time in the commission's early life that would be a challenge too far. However, the important point to make is that the Bill does not prevent any domiciliary care agency from registering if it wishes. The Government believe that providers will see the merit of registration in terms of attracting business and

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  assuring purchasers. In addition, any domiciliary care that is provided by or on behalf of a local authority or NHS body will be required to be with registered agencies. That should cover the majority of services in this sector.
  As regards private individuals who wish to use a registered agency for their care needs, we will ensure that the commission provides appropriate information in readily available and accessible forms to help people to know where to find such an agency in their area. We would expect to include a telephone information service. Registered agencies will also use a recognisable kite mark and their registration status can be confirmed with the commission.
  The Bill also allows for the Government to make the registration scheme fully compulsory at an appropriate stage. That might occur after the scheme has been in operation long enough to ensure that all the necessary experience has been gained to make that a possibility.
  I hope that I have satisfied Members of the Committee in that respect. The legislation is a major new departure which I believe will be widely welcomed. However, it is important that we learn from experience before a compulsory scheme is introduced.
  Baroness Masham of Ilton: Before the Minister sits down, care in the community has been going on for quite a long time now. There is nothing new about it. This will be a missed opportunity. The good agencies will register and the cowboys—people making a lot of money out of extremely vulnerable people—will not register.
  Lord Hunt of Kings Heath: The noble Baroness is right to say that care in the community has been a policy of governments for many years. I was suggesting that the regulation of domiciliary care is a new and welcome departure. I was suggesting also that in such a new territory the approach we have adopted is the most sensible way to enable us to learn through experience in order to be able to have a fully comprehensive system.
  Baroness Masham of Ilton: Too many people have already learned from very bad experiences.
  10.15 p.m.
  Earl Howe: I am grateful to the Minister and to all Members who have taken part in the debate. I understand that this is a new area of regulation; it is a welcome area of regulation and yes, we are dealing with untested definitions. The Minister said that if the commission was not careful it would be saddled with more work than it could cope with and that it might prove a challenge too far to sort out which agency had to be registered and which did not. The simple answer to that is to require all agencies to register. The fact is that some 85 per cent of all domiciliary care agencies deal in one way or another with local authorities or NHS trusts. The vast majority will have to register. If 85 per cent are registering, that leaves only a small number which will not be doing so.
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  I do not believe that it will make the difference between overload and the opposite of overload, whatever that is—"underload"—to require all agencies to register. The commission should be able to handle that. I hope that the Minister will reflect on the remarks made this evening because I feel I must return to the issue on Report. In the meantime, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Baroness David Baroness David moved Amendment No. 39:
  Page 5, line 30, at end insert—
  ("( ) Any person who privately fosters a child under the age of 16 for a consecutive period of 28 days or more without being registered under this Part shall he guilty of an offence.").
  The noble Baroness said: Amendments Nos. 39 and 41, tabled in my name and that of the noble Lord, Lord Clement-Jones, aim to secure that private foster care comes within the remit of the Bill. Children who are privately fostered surely deserve the same kind of protection as other children who live away from home. They are just as vulnerable and their numbers significantly exceed the numbers of children living in community homes. A large proportion of privately fostered children are from minority ethnic communities and a failure to safeguard such children could be construed as institutional racism.
  The Children Act 1989 requires persons who intend to foster a child under the age of 16 privately for more than 28 days to notify their local authority. Local authorities are required to safeguard the welfare of privately fostered children, but they do not have to approve or register private foster carers. That is an anomaly. Local authorities have a duty to approve and register child minders and other day-care providers, yet children in such care return to their families each day while foster children do not. The current system is not working. Local authorities have not consistently advertised the duty of private foster carers to notify them.
  A 1993 Social Services Inspectorate report concluded that,
  "potentially vulnerable children were being placed in the care of strangers, without any checks being undertaken as to their suitability to care for children".
  Even if local authorities were being notified of all private fostering arrangements, their current responsibilities towards such children would still be lacking.
  Sir William Utting, in his comprehensive review of safeguards for children living away from home, concluded that current legislation is not protecting children:
  "Private fostering is clearly an area where children are not being safeguarded properly: indeed an unknown number are likely to be seriously at risk … all children living away from home should be safeguarded and those who are privately fostered should be no exception".
  The amendments would require prospective private foster carers to register with the national care commission. They would undergo an assessment of their suitability to look after children, and the care they offer would be monitored periodically. The

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  national commission would liaise with local authorities, notifying them of all children in their area who are privately fostered and sending them copies of their assessment reports. Those reports would highlight whether additional safeguards needed to be put in place for individual children. The children would not be looked after in care. This provision would still allow parents to make their own arrangements.
  However, if passed, the amendments will ensure that all private foster carers are assessed in relation to their suitability to care for children and will set in place a system for local authorities to receive formal notification of any concern in relation to individual children. If the Government agree to the amendments, as I hope they will, various consequential amendments will be needed, for example, to Clauses 11, 12, 15, 17, 18 and 20. I have and can produce the consequential amendments. They are available for the Government if they agree to these amendments, which I sincerely hope that they will.
  I cannot understand why this situation has been allowed to continue for as long as it has. I hope strongly that the Minister can agree to support the amendments. I beg to move.
  Lord Clement-Jones: I rise briefly to support the noble Baroness, Lady David. I believe that she put the case extremely cogently for this clear gap in the Bill to be filled. It seems extraordinary. The Government have been quite vigorous in pursuing many of the recommendations of Sir William Utting. However, the quotation that the noble Baroness, Lady David, gave us from his original report about private fostering makes an extremely strong case for including private foster carers within the terms of the Bill. They should be registered. They should be subject to the national care commission. I very much hope that the Government will listen to the noble Baroness's wise words.
  Lord Laming: Perhaps I too may encourage the Government to listen to the noble Baroness, Lady David, and, indeed, to the noble Lord, Lord Clement-Jones. At this hour of the evening I shall not detain your Lordships longer. The fact is that this matter has been a source of concern for a number of years, as the noble Baroness has already made plain. I hope that the Government will take this as an opportunity to address other concerns.
  Earl Howe: In the interests of brevity, I shall say simply that I identify myself wholly with the remarks of the noble Baroness, Lady David. I am most supportive of what she said and I hope that the Minister will take due note.
  Lord Hunt of Kings Heath: My noble friend is right that we have not planned for the national care standards commission to be responsible for dealing with private foster carers. I certainly appreciate the intention behind the amendments, which is to ensure
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  careful safeguards for children who are fostered in this country by private arrangement between their families and the carer. However, the Government do not consider that there is a need to extend further the wide range of offences associated with private fostering. As we said in response to the Children's Safeguards Review, we consider that the current regulations concerning private fostering are adequate as long as they are enforced.
  I believe that concentration and focus should be placed on the terms of enforcement. We are concerned that the regulation of private fostering is little known. Therefore, we are planning a publicity campaign to promote awareness of the regulations and particularly of the need to notify private fostering arrangements to local authorities. The campaign will be targeted to affect the most vulnerable groups of children.
  We plan also to work with relevant interests to develop a voluntary code of practice for foreign language schools, which often arrange accommodation in family homes for their pupils. Therefore, we intend to take those measures to ensure that the existing system is properly in force. However, we do not believe that the registration of foster carers is necessary or desirable.
  Baroness David: I am extremely disappointed with that answer. The Minister said that there are safeguards as long as they are enforced. I believe that it is quite clear that they are not being enforced. I shall not press the amendment to a Division tonight. However, I feel strongly about the matter and I shall certainly bring it forward at Report stage. In the mean time, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 9 agreed to.
  Clause 10 [Applications for registration]:
  Lord Rix Lord Rix moved Amendment 40:
  Page 6, line 14, at end insert—
  ("( ) Notification of applications for registration shall be published in such form as shall be prescribed by regulations.").
  The noble Lord said: Amendment No. 40 is grouped with Amendment Nos. 42, 43, 44 and 107, to which other noble Lords will speak. As registration is to be, in effect, some guarantee of respectability, service providers will have to be registered to be used by their local authority. The decision to be registered should be soundly based. We have a tradition in this country of giving interested parties the opportunity to comment, thereby to improve the decision-making process. Marriage banns immediately spring to mind. When the use of a building changes, change of use regulations require this to be advertised. When an extension is added to a house requiring planning permission, proposals are posted with an opportunity for comment.
  The registration authority can enlist the views of local individuals or voluntary bodies when a request to register a care business is published in the local newspaper. Occasionally, things have been known and doubts harboured but there was no opportunity to

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  record these. That is unfair on the registration authority and even more unfair on the service user. I beg to move.
  Earl Howe: I rise to speak to Amendments Nos. 42, 43, 44 and 107 tabled in my name. The matters they deal with are straightforward. Amendment No. 42 seeks clarification about the factors that the registration authority can take into account when considering an application for registration. If someone has previously had his registration cancelled for any of the reasons set out in Clause 12, what safeguards are there to prevent that person attempting to set up another establishment and starting again?
  Amendment No. 43 picks up a section of paragraph 66 of the Explanatory Notes. I should be grateful if the Minister would confirm that no steps will be taken by the authority to cancel a registration—in normal circumstances—without every attempt being made, perhaps including prosecution, to ensure that an errant establishment or agency comes back into line. Am I right in thinking that cancellation of registration would be a last resort? How will the Government ensure that this is so?
  I should like to express my support for Amendment No. 44. It should! he automatic for the registration authority to notify the relevant health authority if an establishment is about to close. The health authority has a direct interest in such information and this is not reflected in the Bill.
  Finally, Amendment No. 107 to Clause 35 deals with the service of documents. A friend was recently sent an important letter by recorded delivery. It never arrived. Not only did it not arrive, but the Post Office confirmed that in paying for a recorded delivery service, one is not paying for the guaranteed delivery of the letter. I did not realise this. One pays for delivery to be recorded when and if it occurs. There is no redress against the Post Office for non-delivery. Therefore, I wonder whether it is appropriate to make specific provision in Clause 35 for notices and documents to be sent by recorded delivery. I should be grateful for the Minister's comments on that.
  10.30 p.m.
  Lord Clement-.Jones: I wish to speak briefly to Amendment No. 44 which the noble Earl, Lord Howe, has already touched upon. Quite simply, it seems rather strange in the circumstances that there is no discretion as to whether the local authority in whose area the establishment or agency is situated is notified by the commission in the event of cancellation of registration but there is a discretion as regards the health authority. Certainly, on these Benches, together with the NHS Confederation, we believe it is important that there should not be that discretion and that the words,
  "if the registration authority thinks appropriate",
  should be deleted from this subsection of the Bill.
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  The closure of any establishment may have a significant effect on local service provision. For example, if a care home for the elderly is suddenly closed, many of the residents may, in the short term at least, be placed in hospital facilities. The NHS Confederation and Members on these Benches believe that it would be good practice for the registration authority to notify the health authority at the same time as it notifies the local authority.
  Lord Laming: I, too, support Amendment No. 44. I regret that I did not think of this earlier because I should like to go a little further. It seems to me that it is extremely important that relatives are informed when such events take place. Very often relatives need to be involved in placing residents in alternative establishments. It would be terrible if homes were I o be closed and health authorities were not informed and they, in turn, did not inform the relatives. Therefore, I hope that the Government will feel able to strengthen that provision.
  Lord Hunt of Kings Heath: I shall respond first to Amendment No. 40. We do not consider it appropriate to require the national care standards commission to publish the applications from all establishments and agencies seeking registration. Where applications, for example, to establish a care home require planning permission from the local authority, those applications are publicly available.
  Amendment No. 42 requires the registering authority to take account of the ground for any prior refusals or cancellations of registrations when considering an application. It will clearly be vital that the registration authority takes account of any prior instances of refusals or cancellations of registrations when considering new applications. That will be part of routine operating practice. However, in our view, Clause 11 does not require amendment as proposed by the noble Lord to secure that that happens.
  I fully agree with the intent behind Amendment No. 43 that the new commission should aim to ensure that registered services are kept in business through meeting required standards. Perhaps I may say in answer to the noble Earl that inspectors will be directed to use a system of formal written warnings giving proprietors of care homes and other registered services every opportunity to come up to scratch wherever possible and when life and limb are not at stake.
  That system will be set out in directions to the commission under Clause 6(2) and is not needed on the face of the Bill. In the event that cancellation procedures are considered necessary by the registration authority, the tribunal will provide independent scrutiny of the steps taken to ensure compliance.

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  It is right to say that it is the responsibility of registered persons to maintain services at the required level, not that of the registration authority, although I take the points which the noble Earl raised.
  I turn now to Amendment No. 44. Members of the Committee have pointed out an inconsistency in the way in which a local authority is treated compared with the treatment of a health authority. I always note the comments of the NHS Confederation and the view it puts forward. On reflection, I prefer to take away the amendment, think about it and perhaps return with an amendment on Report because I believe that a very valid point has been raised.
  I confess that the noble Earl lost me when he talked about the differences between recorded delivery and registered delivery. My understanding was that the point that he raised had been met adequately as both registered post and recorded delivery require the signature of the recipient to prove delivery. That was certainly deemed to be sufficient under subsection (1) of Section 54 of the Registered Homes Act 1984. Although the noble Earl raised a particular case, I am not aware that that has caused problems in relation to the operation of the Registered Homes Act 1984. Perhaps he can enlighten me on that.
  Earl Howe: I am afraid I cannot produce any examples of where the provisions of the Registered Homes Act have failed in that respect. I had understood that there was a crucial difference between recorded delivery and registered post. Registered post guarantees delivery, whereas recorded delivery does not. It is merely a service that involves the signature of the recipient being provided to the postman or postwoman to acknowledge the fact that the postman or postwoman has done his or her job. If necessary, the sender of the letter can thereby obtain confirmation that the letter has been delivered. There is no comeback and no redress against the Post Office and I do not believe that the system provides as much proof against error as registered post. However, I take note of what the Minister said.
  Perhaps the Minister can amplify something else that he helpfully indicated in his earlier reply about the commission and the way in which it will seek to ensure that an establishment that has not fulfilled all the requirements that it ought to can be brought back into line. Clearly, some offences will warrant a harsher response from the commission than others which are relatively trivial. Perhaps it is too early for the Minister to say, although it would be interesting to know, what the commission's policy is likely to be and how proactive it can be in assisting establishments to put their houses in order, so to speak.
  Lord Hunt of Kings Heath: That is a helpful intervention by the noble Earl. I am sure that he knows more about the postal services than I do. No doubt, we shall have other opportunities to discuss this crucial matter during the passage of the Bill through the House.
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  The noble Earl also raised a much more substantive point about the way in which the commission will conduct its business. Perhaps I can reiterate that in situations where the residents of a particular establishment are at risk because the standards in one way or another are so bad, clearly it is right that the commission should be enabled to take action forthwith. In terms of taking action leading to the cancellation of registration, the commission can ask a justice of the peace to issue an emergency order to cancel registration or vary or impose a condition of registration. If the situation has not reached that level of seriousness, the inspectors can be directed to use a system of formal written warnings. In that case, proprietors of care homes and other registered services are given opportunities to sort out the problems that have been so identified.
  The word "proportionality" comes to mind in relation to how the commission will deal with those matters in the future. We will talk later about the amendments to Schedule 1, but the quality of leadership within the commission and the members appointed to the board will be crucial in setting within the regulatory framework and any directions given by the Secretary of State the right kind of judgments to enable us to have a tough regulatory regime but, equally, one which is fair to the establishments. There must be a sense of proportionality in dealing with problems ranging from minor ones which can be dealt with quickly to major ones which have to be dealt with through urgent action.
  I hope that I answered the points to the noble Earl's satisfaction.
  Earl Howe: I can see considerable gratitude from many in the care and nursing home arena for those replies. I am most grateful.
  Lord Clement-Jones: And gratitude comes from many in this House for that reply. I thank the Minister also for his reply to Amendment No. 44. I shall take care to ensure that all my amendments are supported by the NHS Confederation in the future.
  Lord Rix: My heart is not in this amendment; I am inclined to sympathise with the Government. Planning permission has been posted outside my house three times in the past seven years saying that I was going to make a large extension. My house is numbered eight; the permission was being sought for numbers 10, three and four. I am aware therefore that mistakes can take place.
  Also, our local paper is of such a standard that it goes into the recycling bin immediately it comes through the door, along with a lot of other junk mail. I feel therefore that local papers are not perhaps the best medium for disseminating the fact that registration is taking place. There may be other methods and perhaps I can return to this later. However, at this time of night, and with my doubts, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 41 not moved.]
  Clause 10 agreed to.
  Clause 11 [Grant or refusal of registration]:
  [Amendment No. 42 not moved.]
  Clause 11 agreed to.
  Clause 12 [Cancellation of registration]:
  [Amendment No. 43 not moved.]
  Clauses 12 agreed to.
  Clauses 13 to 17 agreed to.
  Clause 18 [Urgent procedure for cancellation etc.]:
  [Amendment No. 44 not moved.]
  Clause 18 agreed to.
  Clause 19 agreed to.
  [Amendment No. 45 not moved.]
  Lord Burlison: I beg to move that the House be now resumed.
  Moved accordingly, and, on Question, Motion agreed to.
  House resumed.

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        House adjourned at sixteen minutes before eleven o'clock.