Care Standards Bill [H.L.]

HL Deb 18 January 2000 vol 608 cc1067-108

8.59 p.m.

House again in Committee.

Clause 69 [Basic definitions]:

The Deputy Chairman of Committees (Lord Brougham and Vaux)

In calling Amendment No. 136, I have to advise the Committee that if this amendment is agreed to, I cannot call Amendment No. 137.

Earl Howe moved Amendment No. 136: Page 41, line 20, leave out subsection (2).

The noble Earl said: The basis of the referral and listing system set out in Clauses 69 to 71 is that a person who provides care for vulnerable adults is under a duty to refer a care worker to the Secretary of State in certain defined sets of circumstances. The term "care worker" is itself defined in Clause 69(2)(a), (b) and (c) and denotes a person who, in one context or another, is employed to look after someone. In Clause 71, "provider"—that is to say, one who carries on a business—and "care worker"—that is to say, an employee—are clearly quite distinct types and classes of people. My question to the Minister is whether there are circumstances in which a provider can himself be a care worker. In other words, what mechanism, if any, exists to refer to the Secretary of State the name of a provider of care services where that person is guilty of harming a vulnerable adult or of placing such an adult at risk of harm?

The Bill appears to say that only a provider of care services may refer someone to the Secretary of State and that the terms "provider" and "care worker" are not interchangeable in such a way as, for example, to enable an employee to refer his own employer to the Secretary of State. Although the noble Lord, Lord Phillips, has not yet spoken to it, I have a good deal of sympathy with the thrust of his amendment, Amendment No. 144C. It should be possible in certain circumstances for the national care standards commission to refer a provider of services to the Secretary of State if, as appears from the Bill, no one else can. Can the Minister clarify that point? I am troubled that one day there might be a clear-cut case of an individual having harmed a vulnerable adult or placed such an adult at risk of harm without there being any means of referring such a person to the Secretary of State because he or she is the registered proprietor of a care home or clinic and not an employee. I beg to move.

Lord Rix

I rise to speak to Amendment No. 137 which is grouped with Amendments Nos. 136 and 144C. This amendment follows the logic adopted in earlier amendments, that day service staff have to discharge during the day the same sort of functions as residential care staff have to discharge to those same people in the mornings and the evenings, including support with visits to the toilet, with changing after swimming and with other aspects of personal hygiene. The recruitment of properly vetted staff should not be limited to those whose contractual hours might include hours between 5.30 p.m. and 8 a.m. I believe that such individuals should be added to the list of care workers already on the face of the Bill.

Lord Phillips of Sudbury

I should like to speak to the amendment in my name, which broadly deals with the circumstances referred to by the noble Earl, Lord Howe. The Government may think that my amendment will add confusion to complexity but the purport is very clear. It may be useful if I give one example. It is not uncommon that in some care homes, particularly perhaps smaller ones, a complaint as to the running of the home will come not from the provider—the proprietor—but from a member of staff. It is altogether possible that a member of staff who persists in claiming with regard to his employer that what is being done is not right could find himself dismissed. If he is dismissed within the qualifying one year in order for him to make a claim for unfair dismissal, he will have no remedy. One could therefore have a rather bizarre set of circumstances where someone who is dismissed unfairly is then compulsorily referred for the blacklisting procedure when in fact he has been trying to do the right and proper thing. As I understand it, the amendment proposed by the noble Earl, Lord Howe, and my amendment address that circumstance. Even if the wording is not perfect, I should like to think that the Government would accept the intent.

The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath)

Perhaps I may say to the noble Earl, Lord Howe, and to the noble Lord, Lord Phillips, that I very much take on board the points they have made. If an owner in the specified service appears as a result of misconduct to have harmed or placed at risk of harm a vulnerable adult, it is important that there is provision for such a person to be referred to the list. It is clear that we need a provision whereby a member of staff can ensure that an employer or an owner who has misbehaved can be referred to the list. We need that added safeguard. We are at present considering how the national commission for care standards could enforce such a scheme. Our intent is to bring forward an amendment to allow the commission to make referrals to the Secretary of State in just such circumstances as both noble Lords have pointed out. On that basis, I hope that they will feel assured.

The noble Lord, Lord Rix, returned us to the question of day centres. In order for the provisions of this part of the Bill to bite fully on day centres, day centres themselves would have to be regulated by the commission. That would be necessary to ensure that the duty to refer is fully enforced and that centres do not employ banned persons. As I said in Committee last week, it may be that in time day centres are to be brought within the regulatory framework of the commission, although at this stage I cannot give an assurance on whether or when that may be. However, enabling a day centre to check whether a person it is proposing to employ is on the list is a different matter. It is exactly what we had in mind when taking the power in Clause 77(2)(c) to extend access to the list. Once the new system is operational, I can assure the Committee that we shall consider carefully whether enabling day centres to access the list in that way would be appropriate.

Lord Rix

The dread words "in time" came up again. I was pleased to hear that there was a possibility of access to the list. If there could be a commitment on that by the Government during the passage of the Bill through your Lordships' House, I should be content.

Lord Phillips of Sudbury

I am grateful for what the Minister said and shall be happy not to move my amendment on that basis.

Earl Howe

I echc the words of the noble Lord, Lord Phillips. It was a helpful reply. It is clearly a concern which must be addressed and I am grateful that the Government are doing that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 137 not moved.]

Earl Howe moved Amendment No. 138: Page 42, line 4, after ("whom") insert ("clinical or").

The noble Earl said: I tabled the amendment because I believe it is essential that, as we debate the provisions of Part VI of the Bill, we gain a full understanding from the Government of what the term "vulnerable adult" should be taken to mean. The definition provided by subsection (6) of Clause 69 appears extraordinarily wide. I have considerable sympathy with Amendment No. 139 in the name of the noble Lord, Lord Clement-Jones, which makes a good attempt at defining "vulnerable adult" by reference to the physical or mental condition of the person rather than where the person happens to be.

My amendment is intended to bring us back to the issue of healthcare at home, which we debated on an earlier set of amendments. I ask the Committee to treat this purely as a probing amendment because it is clear, from what the Minister said earlier, that it would not be appropriate to alter the definition of "domiciliary care agency" in the way that I sought.

The main issue is to ascertain which services the Government intend to set out in regulations as the basis for the definition. The mention of "prescribed services" in subsection (6)(c), as provided by an independent hospital, an independent clinic or NHS body, again suggests fairly wide coverage. Indeed, in a healthcare setting it is not unreasonable to regard most adult patients as being vulnerable in one way or another. If the definition is to include all adult patients in hospitals and clinics, it clearly has major implications in terms of the need to check all potential NHS employees against the proposed register on every relevant appointment or job move. I shall be interested to hear what the Minister has to say. I beg to move.

Baroness Barker

I rise to speak to Amendment No. 139. On these Benches, we too are concerned about the wide definition of who is a "vulnerable adult". Earlier in the debate I spoke about the terminology currently used in social services. In recent years there has been a tendency to go down the road of talking about services in terms of those to whom they are provided, rather than the nature of the service itself. "Adult services" is a wide term in current usage. Generally it does not include services to people with learning difficulties. In most social services departments, services for elderly people would be considered to be a separate although related matter.

It is a question of the definition of a "vulnerable adult". We all have a general understanding of what the Government are trying to do, but the purpose of the amendment is to make it explicit. Much of what we have tried to do elsewhere in the Bill, in terms of getting the balance right on matters such as registration and inspection, depends very much on the nature of those vulnerable people to whom the services are being given. It is part of a whole. We need to view the recipients of the service, the nature and regulation of the service and the inspection of it as part of a whole. It is, therefore, important that we have an explicit and agreed understanding of what the term "vulnerable adult" means. That is the purpose of the amendment.

Lord Phillips of Sudbury

I wish to add to what was said by the two previous speakers and to ask the Minister whether he would be so kind, if not tonight then perhaps in correspondence, to explain the interpretation of "personal care", as set out in Clause 96(3). The provision states: In this Act, the expression 'personal care '… extends to advice and encouragement, but does not include any prescribed activity". The definition of "vulnerable adult" when read in conjunction with the definition of "personal care" covers advice and encouragement. So it might embrace the vicar, on one of his visits to elderly patients. One is getting into a wide area.

The particular elucidation that I seek from the Minister is of the words, but does not include any prescribed activity", at the end of Clause 96(3). That may or may not hark back to Clause 69(6)(c), but I am sure that the Committee will be grateful to have clarity on that matter.

9.15 p.m.

Lord Hunt of Kings Heath

I am grateful to the Committee for raising a number of matters. I deal first with the points raised by the noble Earl, Lord Howe, and in particular that related to our intention in respect of healthcare staff. We have decided that healthcare staff will be covered only if they are concerned with the delivery of certain specified services to be set out in regulations. We have in mind making regulations under the provisions of Clause 69 to bring within the scope of the scheme acute and community settings for learning disabilities, psychiatric (including psychotherapy) services and dedicated elderly services. In this way those services which are accessed mostly by vulnerable adults will be covered. In the first instance we do not intend that more general services, such as accident and emergency provision, should be covered. Clause 69 provides the Secretary of State with sufficient powers to extend the scope of the protection of vulnerable adults to other health-related services by the making of regulations.

Our intention is to ensure that employees of NHS statutory bodies—which will include all NHS trusts, acute community, combined and primary care trusts once established, health authorities and special authorities and, similarly, independent hospitals and independent clinics—who provide the prescribed services are covered. In the NHS settings it will be possible to enforce compliance since the Secretary of State under Section 12 of the Health Act 1999 has the power of direction in relation to the exercise of functions in health authorities, special health authorities, primary care trusts and other NHS trusts.

The noble Earl did not refer to general practitioners. He will be aware that they are in a slightly different position as independent self-employed contractors, and as such they will not be covered by the list. Clearly, there are a number of ways in which their performance and behaviour can be regulated. So far as concern private healthcare settings, we shall take a similar approach to the NHS arrangements, in that the services to be covered by the list will be set out in regulations. Private healthcare providers will be accountable to the regulator, the national care standards commission, which will ensure that registered services have proper arrangements in place to deal with suspected cases of abuse by employees. The Bill attempts to align those people whom the NHS treats with those whose situation is in a sense most akin to the definition of "vulnerable adult" contained in Clause 69(6).

As to Amendment No. 139, the scheme that we seek to introduce does not cover all elderly people; nor is it intended so to do. Some elderly people would, rightfully, resent the terminology "vulnerable adult". But this is a scheme that will include services in which all the people who receive care can be regarded as vulnerable. Those services are regulated so that the scheme can be enforced—hence the description of "vulnerable adults" in Clause 69, which itself relates back to those services to be regulated by the national care standards commission. It is important to recognise that the provisions related to vulnerable adults in this part of the Bill relate back to the services to be regulated by the commission in respect of adults.

If we are to provide protection for vulnerable adults, we need a clear focus on the settings where it is truly needed. In that way we can ensure that adults who everyone agrees are vulnerable receive the level of protection they deserve against people who are unsuitable to look after them. To base the scheme on specific services where all the adults being looked after can be regarded as vulnerable means that we can introduce a practical and workable scheme. The important point is that we do not want to dilute the measure so that it makes the scheme less effective.

The noble Lord, Lord Phillips of Sudbury, asked me specific questions. I shall accept his invitation to write to him on those points.

Earl Howe

That was an extremely useful clarification of the subsection. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 139 not moved.]

Clause 69 agreed to.

Clause 70 agreed to.

Clause 71 [Persons who provide care for vulnerable adults: duty to refer]: Page 42, line 29, at end insert ("proven").

The noble Earl said: One of the main balances to be struck in this part of the Bill is the balance between the rights of vulnerable adults and the rights of those who care for such adults. I believe that there is dissent in the Committee about the need to provide a means of preventing those who harm vulnerable adults, or place them at risk of harm, from having the opportunity of doing so again. However, to be fair on all concerned the process by which a person's name is included on the Secretary of State's list must be clear, and leave as little room as possible for miscarriages of justice.

Subsections (2) and (3) of Clause 71 list the grounds on which a provider of care for vulnerable adults is required to refer a care worker to the Secretary of State. Subsection (2)(a), upon which other subsections in their different ways depend, states, that the provider ha; dismissed the worker on the grounds of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult". The questions posed by the amendment are these. First, what is the meaning of misconduct? Secondly, what degree of proof and depth of deliberation are required for the grounds mentioned in the subsection to be fulfilled? It will he helpful to hear from the Minister what the term "misconduct" means. If it is defined, as it is at least in part, by whether a vulnerable adult was harmed or placed at risk of harm, it is important that we should know what sort of harm is meant. Does it include honest mistakes or innocent acts of omission? Is one such mistake sufficient? Most mistakes in a professional environment, and many instances of incompetence, are rectified by further training or professional support, not by punitive measures.

My other worry is that when things go wrong, it is often the result of many factors: pressure on staff, poor procedures or poor management, in situations where individual staff can be made scapegoats. What is to prevent that from happening? How will the system be able to guard against the referral that is malicious? What degree of proof is required? In certain cases it will be clear that an individual is guilty of a deliberate act that has harmed a vulnerable adult because he or she has been dismissed following a formal and conclusive in-house investigation. However, subsection (2) allows for other situations: for example, where the care worker has resigned or retired in circumstances which by the very nature will not have allowed for a balanced and conclusive investigation into the incident that has taken place.

Clause 71(2)(a) specifies that one set of conditions requiring referral is where a care worker has been suspended pending a decision on whether or not to dismiss him. It is not clear to me what the phrase "on such grounds"means in that subsection, or in subsection (2)(b) and (c). The word "such" refers us back to paragraph (a), which specifies grounds of misconduct, and so on. But the degree to which misconduct needs to be proved seems to vary between each of the subsections. In subsection (2)(a) the misconduct appears to mean proven misconduct. On the other hand, in subsection (2)(b) the need for proof of misconduct is nothing like so high because the circumstances are such that the provider, would have considered dismissing [the person]", had he not retired or resigned. The situation there envisaged is where the care worker has already left his job and cannot in consequence speak in his own defence. The wording, would have considered dismissing him", implies a situation where the provider cannot be sure whether misconduct has definitely taken place; or, if he believes that it has taken place, whether it is serious enough to justify dismissal.

As I have mentioned, in subsection (2)(d) the misconduct is by definition suspected, but not proven. I am far from happy with that. Does the Minister agree that the expression "on such grounds" needs clarification? As it stands it is too loose or too woolly to be interpreted with any degree of precision.

A further reason why I find this issue particularly troubling is subsection (7), which specifies that the Secretary of State, before confirming the inclusion of someone's name on the list, needs to be of the opinion, that the provider reasonably considered the worker to be guilty of misconduct". But at least some of the circumstances envisaged in subsections (2) and (3) fall a long way short of a conclusive verdict of guilt. So, besides being internally inconsistent, subsections (2) and (3) do not appear fully compatible with another very important part of the clause. With apologies to the Committee for having gone on so long, I beg to move.

Lord Clement-Jones

The noble Earl, Lord Howe, has spoken with great skill and force in connection with Amendment No. 140. Amendment No. 142, to which I speak, has a very similar set of concerns underlying it. The particular concerns that have been put to me are those of the NHS Confederation. They relate to subsections (2)(c) and (2)(d). Subsection (2)(c) says that employers should also refer to the Secretary of State where, the provider has, on such grounds, transferred the worker to a position which is not a care position". The noble Earl, with considerable forensic skill, examined the words "on such grounds". That is precisely the area of concern.

The Department of Health has, I understand, confirmed that the subsection would apply not only to cases in which the transfer is as a result of the decision of a formal disciplinary procedure, but also to cases where workers are transferred to non-care positions where there are concerns, but not proof, about their behaviour.

The NHS Confederation has put to me two concerns about that paragraph. First, in the service there are many instances where the transfer of a member of staff is the solution that best meets the circumstances. In crude terms, there might not be sufficient evidence to proceed with a disciplinary hearing, but agreement can be reached with the individual or his or her trades union for transfer to other duties. If such a course of action would require referral to the Secretary of State, there is little likelihood of getting the agreement of the individual or the union to the transfer. Such a situation would be of no benefit to anyone, least of all the vulnerable adults who need protection. Paradoxically, those whom the proposal is designed to protect could be more at risk.

Secondly, real questions of natural justice arise over a referral to the Secretary of State in cases in which there has not been any formal hearing. We shall deal with this later under the amendments proposed by my noble friend Lord Phillips. The department apparently says that this should not be an issue, because the Secretary of State will do his own investigation and seek the views of the individual and organisations concerned and then make a decision. We believe that this could lead to protracted hearings, potential conflicts and unsatisfactory outcomes.

In summary, the Bill as drafted will restrict the ability of employers to resolve potential problem situations, will potentially leave vulnerable adults at greater risk and be open to challenge by affected individuals on grounds of natural justice. We have therefore proposed the deletion of both paragraphs (c) and (d).

I should at this point also refer to representations that have been made to me by the Royal College of Nursing, which also has considerable concerns about the impact of the Bill. It is particularly concerned that there may be malicious referrals. As the noble Earl said, it is likely that the allegations need not have been proved. The Royal College also wants to see a requirement that in any case where a care worker to be referred to the Secretary of State is on the statutory register of nurses, there should be a statutory duty on the provider making the referral to refer the care worker to the registration authority—that is, the UKCC or any body that succeeds it.

It is concerned that these measures are not adequate to ensure a fair, rigorous and thorough system for placing people on the list and that it may lead to people being wrongly placed on the list, thus blighting their career and livelihood. Like us, the RCN in particular wants to see a much more rigorous system for scrutinising and assessing referrals.

9.30 p.m.

Lord Phillips of Sudbury

I want to make one point in enlargement of the concern of the noble Earl, Lord Howe, about the phrase, would have considered dismissing him", in Clause 71(2)(b). It occurs also in subsection (3) in circumstances where information becomes available to a provider after a worker has left his or her employ.

It seems to me that the way Clause 71(2)(b) is drafted means that where a worker has resigned or retired the test to be applied by the provider as to whether to refer to the Secretary of State is lower than that applicable if the worker is in employment when the consideration goes ahead. I say that because if the words, or would have considered dismissing him", are left out of the subsection, the test can then be said to be parallel to that in Clause 71(2)(a). By stating that where the worker has resigned or retired in circumstances such that the provider would have dismissed him, or would have considered dismissing him". we are creating a new and even lower test upon which the question of referring to the Secretary of State must be decided by the provider.

I say to the Government that as yet no one has referred to the statutory duty that Clause 71 places on providers. It is not something that they may do; it is something that they must do. I should be grateful if the Minister would tell the Committee what the Government believe will be the consequence to a provider of failing to refer a care worker in circumstances where they, the national commission or anyone else consider that they made a wrong judgment.

There are no sanctions in the Bill—at least, I do not believe that there are—for a failure to refer, but what do the Government believe might be the civil liability of a provider if afterwards the child of, say, a vulnerable adult goes back to the provider and says, "On what I have heard, you should have referred the case. It is a case in which you would have considered it missing had you had that information available and considered the facts at the time"? A vast number of people will be caught up in this crucial clause and it is important to know what the Government believe will happen in civil law.

Lord Laming

I fear that I may be on my own. but I want to speak against the amendments as strongly as I can. I greatly hope that nothing will be done to weaken this part of the Bill.

The Committee will recall the lengthy debates which took place during the passage of the Protection of Children Bill, where such matters were carefully examined. During the passage of that Bill, it was, I hope, demonstrated to reasonable satisfaction why it is important that there are proper mechanisms, not for dealing with criminal behaviour (because the criminal law deals with criminal behaviour), but for dealing with issues of professional misconduct which put vulnerable individuals at risk, often seriously; sometimes to the extent of abuse or exploitation.

During the course of that Bill, we anticipated that other legislation would ensue to address such matters in respect of vulnerable adults, recognising that adults can be as much exposed to exploitation as children. In the course of those discussions, we recognised that some staff change jobs quite frequently; that they may often go to considerable lengths to cover their tracks; and that quite often people in vulnerable positions who are extremely dependent on staff do not feel able to reveal what has happened to them while the member of staff concerned remains employed in a key position in which he or she may have sole charge of that individual from lime to time. In such cases, it is often only when that member of staff is moved on that the vulnerable person concerned has the confidence to share some of his. sometimes dreadful experiences.

On the other hand, experience has shown that some employers—that is, providers— go to considerable lengths to avoid facing up to the implications of the behaviour of an employee. Whether or not it is because of a lack of courage, or whether it is because they do not want the good name of their establishment or centre to be questioned, they transfer people to posts which may well work to the advantage of both the provider and the member of staff, but certainly do not necessarily work to the advantage and the benefit of vulnerable people where that worker may have access to them in quite different circumstances.

I stress that we are discussing misconduct, not criminal behaviour: and it is quite clear what the standards of professional misconduct are—they are clearly understood. Cases involving proof and those where issues comes to light after the person has resigned or moved on, where, had that person been in post, the provider would have considered the issue, and those where the person implicated has been transferred to another post, are important matters for which it would be quite wrong of the Committee to weaken the range of possibilities that a provider must make.

Of course there are safeguards; they are built into appeal mechanisms and the rights of employees, not only in respect of employment legislation—because employers must comply with employment legislation, which is extremely detailed—but also in the system dealing with professional misconduct and professional discipline. There are thus proper mechanisms for appeal and safeguards. There are also safeguards which recognise that, of course, from time to time a malicious complaint may be made. Therefore, those matters must be handled in a way which is fair to all concerned. However, at the end of the day it must be understood that the most vulnerable person is the user of services. Because that person is the most vulnerable and is most likely to be exploited or abused, we must ensure that we build in for that person a system which is sufficiently robust and rigorous to deal with the different ways in which staff can behave and the ways in which people can be exposed to unacceptable behaviour.

I hope very much that the amendments, well intended though they are, will not be carried because I believe that there must be a proper balance which ensures that dependent people are recognised and that every effort is made to deal with their particular needs.

Lord Hunt of Kings Heath

I believe that the noble Lord, Lord Clement-Jones, considers that I use the word "balance" rather a lot. I remember that when we debated the Protection of Children Act in your Lordships' House it was a word which I used frequently.

I believe that we have heard in today's debate various sides of that balance. It is genuinely difficult to draw the right balance between the necessary rights of individuals, to which noble Lords opposite have referred, and the necessary protection of vulnerable people. The provisions in the Bill attempt to draw the right balance alongside the additional safeguards that are drawn, first, by the role of the Secretary of State and then by the ability of a person to appeal to the tribunal. I believe it is important that when we debate those questions we bear in mind both that balance and the rights of individuals to appeal ultimately to a tribunal if they believe that they have been dealt with wrongly.

Perhaps I may deal, first, with Amendment No. 140. I very much accept the point that we do not want inappropriate or malicious references to the list. Of course not. However, if the list is to serve its purpose and be a true protection for vulnerable adults against people who would seek to do them harm, we need employers to refer cases to the Secretary of State where protection of vulnerable adults can be improved by such referrals.

It is lawful for an employer to dismiss a worker where, after investigation, the employer has a owell-founded belief that the misconduct has been committed. The noble Earl, Lord Howe, asked for the meaning of "misconduct". My understanding is that it means any behaviour which risks harm to a vulnerable adult. Included within that could be omissions or negligent acts, such as failing to feed a particular vulnerable adult. Where, after investigation, the employer has a well-founded belief that misconduct has been committed, it would not be desirable to go beyond that by placing some additional formal requirement of proof on employers. The whole basis of the Bill is to ensure that the schemes reflect what employers already do in the workplace in cases of a dismissal for misconduct. We want to make sure that the scheme is workable for them. We do not want the scheme to put an undesirable burden on them.

Inclusion in the list will not be automatic for everyone who is referred. The Secretary of State will seek the views of the person to be referred. He must believe that the employer has acted reasonably and, in addition, consider that the individual is unsuitable to work with vulnerable adults before he will conclude that an individual should be included on the list. I fear that the amendment could restrict the intention of those provisions to increase the level of safety afforded to vulnerable adults. Such an increase in safety is the outcome that we wish to achieve and we must ensure that we do so for the sake of the service users.

I turn to Amendment No. 142. The noble Lord. Lord Clement-Jones, referred to the concerns of the NHS Confederation. In this instance, I do not agree with the points which have been made. Where an employer has transferred an individual, has suspended him or has temporarily transferred him away from caring for vulnerable adults, surely it is important that those cases should be referred to the list if we are to offer vulnerable adults the degree of protection which they deserve.

The noble Lord said that where there was suspicion about the actions of such a person, it was easier for an employer simply to move him away into a non-caring position. But it is not right to say that that solves the problem. The Bill contains those clauses in order to make sure that the employer deals with the issue with the ultimate protection of vulnerable people in mind.

I recognise that for employers who are facing up to those responsibilities, those issues will cause them concern and they will give considerable thought to how those matters will work out in practice. We shall ensure that appropriate guidance is published to enable them to understand what are their particular responsibilities.

In relation to the differences between Clause 71(2)(a) and Clause 71(2)(b), the noble Lord, Lord Phillips, asked whether there was a lower test. If a person has left the employment, although the employer may have suspicions relating to that individual, it may simply not be possible to carry out the thorough investigation which would be expected under Clause 71(2)(a), although there may be sufficient evidence to warrant a referral to the Secretary of State.

Of course, the safeguard is the Secretary of State's own decision in relation to provisional listing, confirmation of listing and the question of appeals.

9.45 p.m.

Lord Phillips of Sudbury

I am grateful to the Minister for giving way. He referred to the thorough investigation of the facts to take place under Clause 71(2)(a). Will he tell the Committee how that measure provides for a thorough investigation of the facts?

Lord Hunt of Kings Heath

It follows that the employer has carried out a proper investigation which has then led to the employer being dismissed.

Lord Phillips of Sudbury

But does the Minister accept that the problem is that he may not have carried out a thorough investigation and that may be the reason that it would be grossly unjust for the employee concerned to be put on the provisional or permanent list?

Lord Hunt of Kings Heath

Safeguards exist. First, in relation to any decision made by the Secretary of State provisionally to list that person, papers will need to be referred by the employer. Those papers must fit into the criteria under Clause 71(7)(a) and Clause 71(7)(b) so that inadequately prepared cases are weeded out at that stage.

There is then the additional safeguard that the Secretary of State must be of the opinion that both paragraphs (7)(a) and (7)(b) are satisfied. There is a further safeguard in relation to the appeal which a person can make to a tribunal.

The noble Lord, Lord Phillips, asked about the issue of sanctions. He is quite right about that. If establishments regulated under the provisions of this Bill were found not to have appropriately referred individuals whom they employed to the Secretary of State, that would be a serious matter in relation to whether they were carrying on in an appropriate way for an establishment regulated under this legislation. It would then be for the commission to pursue that matter with the establishment. As regards the National Health Service, that would be a matter for management action by the Secretary of State. I shall not bore the House by describing the accountability chain between the NHS and the Secretary of State, but it is a pretty strong line of accountability. I hope that I have answered most of the points raised.

Lord Clement-Jones

My Lords, before the noble Earl, Lord Howe, responds, perhaps I may say that I appreciate the Minister's reply and his desire to achieve a balance in this clause between natural justice and proper protection for vulnerable people. However, with the greatest respect, on these Benches we believe that that balance has not been struck in the proper fashion.

In this clause the approach seems to be that one sweeps up into the net a whole collection of possible allegations and circumstances which may be unproven; referral takes place and one then relies on the tribunal to sort everything out if the individual chooses to appeal. We prefer to take a rather more measured approach at the earlier stage so that everything is not swept up with referral taking place for a broad collection of allegations and circumstances.

Clearly, there is a strong difference of approach. I understand the desire of the noble Lord, Lord Laming, to ensure that vulnerable people are properly protected. However, one has this balance to keep. We do not believe that it has yet been struck in the proper fashion. There are a number of further amendments to this section of the Bill. I do not wish to prolong the debate on this clause unduly. However, we may well return to this at a future date.

Earl Howe

My Lords, I thought I detected in the remarks of the noble Lord, Lord Laming, a degree of impatience in so far as many of these matters were debated at some length during the passage of the Protection of Children Act—a series of debates I recall with great clarity. However, I respectfully point out to the noble Lord that this is a different Bill with different effects and containing different provisions. It is perfectly right and proper that we should explore the clauses in as much detail as we feel necessary.

I have to say to the noble Lord that if the meaning of the word "misconduct" is clear to him without explanation, it certainly is not clear to me. I was grateful to the Minister for his clarification of the meaning of the word. It worries me that, as the noble Lord, Lord Clement-Jones, pointed out, the degree of proof that is required to refer somebody on the ground of misconduct that would harm a vulnerable adult or place a vulnerable adult at risk of harm is low. The answer seems to be that very little proof is required.

The noble Lord, Lord Clement-Jones, mentioned the balance to which the Minister referred at the outset of his remarks, and I wonder about that. Nevertheless, in view of the time I do not propose to say more at this stage. I shall read the Minister's reply and reflect on it carefully, reserving the right to bring the matter back at a later stage. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Phillips of Sudbury moved Amendment No. 140A: Page 42. line 32, after (-resigned") insert (", been made red undant" ).

The noble Lord said: In moving Amendment No. 140A, I shall speak also to Amendments Nos. 142A, 142B, 142C, 144A and 144B, which address a single point. I hope it will be taken as a sign by the noble Lord, Lord Laming, and the Government that I have no partiality vis à vis this Bill; I want to see it succeed in its proper purposes.

One of the Bills proper purposes, and an important one, is to protect vulnerable people of whatever age against maltreatment by whomsoever. In Clause 71 there is a gap in the duty to refer a case in relation to somebody who may not have been dismissed for misconduct; may not have resigned and may not have retired; but may have been made redundant.

I make clear at the outset that, whereas dismissal on its own can include redundancy, Clause 71 as drafted will not. The only dismissal referred to in that clause is dismissal for misconduct. If I can help the noble Earl, Lord Howe, I am confident that, in relation to the trouble he had with the words, "on such grounds" in Clause 71(2)(b), .;c) and (d), they all refer to dismissal for misconduct.

We have the situation, therefore, where an employee could be made redundant in circumstances where, had he or she been dismissed, retired, been transferred or suspended, there should have been a reference to the Secretary of State, and where public interest declares that there should be a reference.

I may sound unduly cynical, but I fear that there are cases—the noble Lord, Lord Laming, referred indirectly to one such —where the proprietors of a care home and an employee may each have reasons, albeit completely different ones, for settling on redundancy as a means of ending an employment rather than on any of the other possibilities. For example, the care home proprietor may want to avoid potentially bad publicity from a reference being made. Though it may be said that the reference would be secret, there are many ways in which information can be leaked. If a local paper published the fact that there had been a reference, that would not be defamatory and would not breach any law.

Therefore a care home proprietor may want to hush up the circumstances in which he was getting rid of an employee. The employee would do a deal, go quietly, shut up and all would be well; the home would have got rid of a lousy employee but in circumstances where there would not be a reference. That is the point of these amendments. I beg to move.

Lord Laming

I support the thrust of these amendments in trying to fill another bolthole in which some people will seek to hide in order to avoid tackling some of these issues. Perhaps while I am on my feet I may apologise if I showed the impatience of which I was accused earlier.

Lord Hunt of Kings Heath

I am grateful to the noble Lord, Lord Phillips, for raising these issues.

Clearly our debates in this area are important in teasing out some of the concerns which reputable employers have about the Bill. It is my hope that in our debates we reassure those people that the Bill is workable and is able to be fair to all those concerned. As I said earlier, the intent is to issue guidance to employers when the scheme begins. I hope that in that guidance we can pick up some of the anxieties and operational issues which noble Lords will no doubt continue to identify during the course of this Bill.

Perhaps I may deal, first, with Amendments Nos. 142A, 142B and 142C. The noble Lord, Lord Phillips, not only put the point very well but also anticipated my response; namely, that I am certainly advised that redundancy is covered by the term "dismissal". Redundancy is one of the lawful means of dismissal. Therefore, the point in relation to the first three amendments is unnecessary. However, I take the point in relation to Amendments Nos. 140A, 144A and 144B. Indeed, we would clearly wish to avoid the circumstances described by the noble Lord in which an employer and a worker might collude to create an appearance of redundancy in order to evade the requirements of the Bill. I should like to take that matter away and give it further consideration.

Lord Phillips of Sudbury

I am grateful to the Minister for that response. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 141 to 143 not moved.]

10 p.m.

Lord Phillips of Sudbury moved Amendment No. 143A: Page 43. line 14, at end insert ("if it appears to him that, unless such a listing is made, there will be a serious risk to a person's life, health or well being").

The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 143B. Both these amendments go to the heart of arguably as important a single issue as there is in the Bill; namely, the proper balance to be struck between, on the one hand, protection of vulnerable people and, on the other hand, fairness to employees and workers.

On Second Reading, I believe I am right in saying that I was the only Member of this Chamber who raised this issue. Indeed, it was gratifying afterwards to hear from several other speakers who talked about other aspects in the debate that they were unaware of this problem. In all cases they supported the attempt that I was then making to persuade the Government to rejig the balance. I should also like to say how grateful I am to the Minister and his civil servants for affording me very open and helpful discussions. I hope that that practice will continue.

I fully share the wish on the part of this Chamber to make the Bill as effective as it can be. I also fully accept the beneficence of the general thrust of the legislation.

The importance of any amendment is, of course, directly related to the scale of the problem that it addresses. Here we have an audience of 2 million—that is the best estimate that I can get of the numbers employed within the care industries which will be covered and governed by this piece of legislation. Many of those workers are in small units; indeed, sometimes two or three employees is not uncommon, especially in small care homes. Not many of those workers appear to be members of unions. Some are members of professional bodies, but most of them are not.

As far as I can see, most of those 2 million workers will come within the purview of the blacklisting procedure laid down in Clause 71; that is to say, first, they are people who have or are able to have regular contact with adults in care homes; secondly, those in clinics or hospitals—public or private; and, thirdly, those concerned with the provision of personal care for people in their own homes who are ill, infirm or disabled. As I mentioned when we discussed an earlier amendment, "personal care" is extremely wide and extends to those who merely give "advice and encouragement".

When the Bill talks of employment, it also uses that word in an abnormal way. I cannot find any precedent for the breadth of interpretation to be given to it, other than in the Protection of Children Act passed in the summer of last year. It will extend to unpaid workers, to those without contracts, to volunteers and to those who provide independent services—chiropodists to solicitors, one might say. It might even cover other groups who make regular visits to those in their community, for example people who provide meals on wheels.

Clause 71—the key clause—requires a person who provides care for vulnerable adults to refer to the Secretary of State, as we have heard, anyone dismissed for misconduct, whether or not incidentally that was misconduct in the course of their work. That is an important widening qualification. As we have also heard, "misconduct" is not defined; "harm" is. "Harm" in this Bill covers, any ill treatment … which is not physical". It would, for example, cover verbal abuse or bullying. It could cover a nurse or an orderly who treated a patient unkindly so that that patient became distressed, even if the unkindness was confined to "sending the patient to Coventry", for example. It is necessary to get clear in our minds the wide scope of this provision in order to understand the deep importance of the issues.

As I say, the ambit of the Bill is vast. If anyone is blacklisted—I suppose that this is the heart of all this—the reputation and the career of that person are destroyed, not just hindered or undermined, but destroyed. In many ways the consequence of a blacklisting will in many cases be worse than conviction for a criminal offence, even though the standard or test by which someone is convicted of a criminal offence is that of "beyond reasonable doubt". As we have heard already in this Bill in relation to this provision, the standard test is one of civil liability; namely, a balance of probabilities. Indeed the language used in Clause 71 is that the Minister "is of the opinion"—an even lower test than others that one finds in comparable legislation. Therefore this measure could cover health visitors, domiciliary helpers, orderlies, meals on wheels providers, nursing auxiliaries, doctors, lawyers, financial advisers, masseurs or anyone else who provides services.

I do not criticise any of that. It seems to me to be fair enough to make the net wide. But if the net is wide, the safeguards against people being caught up in it unjustly must be rigorous. The effect of being put on the blacklist, as I have described, is devastating.

The heart of the inadequacy is the fact that the listing process does not give those listed any opportunity to cross-examine—whether themselves or by a representative—their accusers before being listed. Worse still, it does not even give the person to be listed the right to make oral representations. All that he or she can do is to submit written observations under Clause 71(5) to the civil servant charged with deciding whether he or she is to go on the blacklist permanently.

Let us imagine a straightforward case in which the proprietor of a care home says that Alice Brown has failed to do this or that as commanded, perhaps to help an old person to have a bath, or to lift them in a certain way, or to change the bed linen at a certain time, or to feed them in a certain manner, or to respond to their calls within a certain time, or to deal with patient paperwork in a certain way. Let us suppose that Alice Brown is in fact a conscientious nurse who has criticisms of the way in which the patients are treated in a particular care home. Let us suppose further that the proprietors resent and are defensive about the criticisms she voices. Particularly if the proprietors wanted to ensure that the nurse was got rid of before the one-year qualification period for protection against unfair dismissal, they might well be tempted to give her notice on grounds of misconduct—let us say, three or four minor departures from detailed instructions, even oral instructions, of the sort that I have indicated.

Whether the proprietors are officious and wrong-headed, or even calculatingly malicious, they could use the statutory duty under Clause 71 to refer the care worker to the Secretary of State. He would then be obliged, unless the details of misconduct do not even constitute a prima facie case, to put the worker on the provisional listing before deciding whether to make that permanent. At that moment the damage has been done.

Thereafter, as the Bill states, the civil servant is required under Clause 71(5) to pass the reference from the provider to the complainant and to give him or her the opportunity to submit written observations.

It is not a great feat of imagination to think of many so-called ordinary employees, most of them without trade union assistance, most of them not thinking to get professional help or perhaps being unable to afford it, making a pretty bad stab at written representations in response to the reference.

And what if the response, in any event, is a flat denial of the facts given by the proprietor or provider who has made the written reference? For example, what if they say that the instructions were never clear and that there were no adverse consequences to the patient? What if the person accused goes on to say that the real reason that she was got rid of was that the care home was badly run and she had spoken up about it? How does the poor civil servant in Whitehall resolve this? How on earth can a basic conflict of purported fact be resolved by a civil servant shuffling pieces of paper between the complainant and the complainee when he is sitting in Whitehall and seeing neither of them?

In previous debates the Government have made clear that they do not claim that the process leading up to the permanent listing is a full or rigorous test of facts; they do not claim that it is a test of merits. As I say, the Bill merely refers to the Secretary of State at the end of the process being "of the opinion that the (proprietors of the home) reasonably considered the worker to be guilty of misconduct". An opinion on an opinion without any test of the facts can destroy the career and livelihood of the person concerned.

Anyone who has had any part in judging disputes as to fact knows that it is utterly impossible to get anywhere near the root of the truth without an oral hearing. That is one of the basic rules of justice.

I hope your Lordships will think it worth while if I mention an opinion I have taken from Professor Jeffrey Jowell, QC, who is Dean of the Faculty of Law at University College London. I wanted an expert opinion on the legal merits or demerits of what we are debating. He is the co-author with the Master of the Rolls, Lord Woolf, of a standard work on administrative law He said: The basic principle is clear: No one should be deprived of a right, interest or even a legitimate expectation without a fair hearing. Taking the Secretary of State's (SOS) provisional decision first, the Bill clearly offends that principle. The question then is Does the situation here fall within one of the recognised exceptions to that principle? Which are, firstly, where the situation requires emergency action", and, secondly, where the decision is "preliminary" and will be followed by one where a fair hearing will be provided". He gives cases before concluding that, the Bill surely offends principles of English administrative law in respect of the SOS's provisional decision in its failure to provide a fair hearing to those included in the list".

What does he then say about the next step in the procedure, whereby the Secretary of State receives observations from the person accused? He says this: Turning now to the SOS's final decision, after the investigation under s.71(5)(a) and (b), the question here is whether that investigation qualifies as procedurally fair. It seems clear to me that a decision of this kind … carrying major implications in respect of a person's reputation, character and livelihood, requires the fullest content of natural justice. That normally means an oral hearing, opportunity to call witnesses, the right of cross-examination, and even, possibly, reasons for decision".

I may say that I have been unable to find any comparable field in our legislation where there is no opportunity for oral representations or an oral hearing before someone is blacklisted in the manner and with the consequences that we are dealing with here. Solicitors and doctors, for example, have an elaborate tribunal system ab initio with a right of appeal to the High Court. Teachers are protected by elaborate disciplinary hearings, usually involving governors of schools, before they are ever dismissed or suspended or transferred. In any event, the relevant regulations of 1993 and the Education Reform Act 1988 to which they relate, overwhelmingly refer to cases where teachers have been convicted before a court of law for specified sexual offences.

I now turn to my amendments. They provide a new and reasonable, balanced and wieldy, practical set of arrangements. First, they give the worker or the provider, where that is relevant, an opportunity to make oral representations to the civil servant dealing with the matter. Secondly, subsection (d) gives the civil servant, at any point in his or her deliberations, the power and discretion to transfer the matter to the tribunal so that the tribunal can decide the matter, where he or she considers that that, in all fairness, should be done. Thus, two simple but powerful protections have been introduced for employees. But, I have also provided that, instead of people being put straight on to the provisional list, that action will be replaced by a situation where they go on to the provisional list only if it appears to the person looking at the matter that, unless such a listing is made there will be a serious risk to a person's life, health or well being". Those words have been carried from Section 18 of the Bill, which provides that protection for a care home in danger of being delisted. A justice of the peace must be satisfied of that situation before any delisting can take place. Is the Minister questioning that point? I think not.

The final link in this chain of reform that I have provided for is that, if a civil servant decides not to refer the case to the tribunal, the worker can request that it is passed to the tribunal. It will then be for the civil servant to decide, "Yes, in all the circumstances I think that is fair", or, if he declines to accept the request, the worker can make an appeal direct to the tribunal for it to hear the matter ab initio

If I had been more zealous in advocating this course, I could have provided a more stringent set of protections for the worker. However, I believe that these provisions are fair. I have tried to make them both fair and practical.

In my final comments I will say only this. It is not simply a question of fairness to employees as against the need to protect the vulnerable old and young. At the root of this matter lies a crucial question of fairness towards those who sustain the whole of the care industry. If there is no fairness, then there will be repercussions in ways that one cannot quantify or foretell in terms of the calibre of people who will be willing to subject themselves to the risks which the present regime provided by the Bill represents. I need hardly say to any noble Lord in the Chamber that to be put onto this blacklist and to have one's reputation and livelihood simply terminated there and then is a risk that, in this day and age, most people do not want to contemplate. All those in the Chamber who know anything of the social work, teaching or care scenes, realise that false criticisms are not unknown. Deluded criticisms are common among the aged. I recommend to the Committee that whatever may have been passed in the Protection of Children Act, in the Bill before us we must get it right. I beg to move.

10.15 p.m.

Lord Jenkin of Roding

After such a formidable indictment of these clauses I need say only a few words. The noble Lord, Lord Phillips of Sudbury, has no reason whatever to apologise for going into the matter at some length. His has been one of the most powerful speeches I have heard in the House for a long time.

I had not appreciated quite how one-sided is the Bill. The noble Lord has drawn the issue to our attention in stark and compelling terms and I believe that the Government would be very unwise if they did not listen carefully to what has been said and to take the necessary action to ensure, as the noble Lord, Lord Phillips, pointed out, that fairness is shown to people whose lives may otherwise be totally destroyed.

As the noble Lord was making his case—I was following his arguments and his references to the clauses—one began to realise that one was catching echoes of the attack on paedophiles over the past 18 months and the extremely unpleasant cases that have come to light. We have had the strong public feeling that such people really should be dealt with very condignly and that there should be total protection for the children finding themselves in that situation. Somehow that attitude of mind has come over into this legislation, which, as the noble Lord said, is drawn infinitely more widely.

The noble Lord referred to two million people. I have not attempted to make the calculation myself. One knows that roughly one million people are engaged in the caring side and if one adds the National Health Service people and all the others who would be providing independent services, I am sure that that is the kind of figure it could be. One's mind boggles and one asks how on earth the clause has reached this stage without anyone raising the question of whether it will be fair to the people against whom these charges will be made.

The noble Lord, Lord Phillips, has performed an extremely valuable service. I hope that we shall get our teeth into this and hang onto it and that when the Bill finally leaves this House it will have had this manifest unfairness excised from it and a much fairer regime put in its place.

Earl Howe

There is nothing I can say to add to what the noble Lord, Lord Phillips, and my noble friend Lord Jenkin have said, except that, from the perspective of the Official Opposition, I strongly support the points made by the noble Lord, Lord Phillips. He has indeed done the Committee a great service. He has made a powerful case. I hope that the Minister will take serious note of all the points that he made.

Lord Hunt of Kings Heath

I thank the noble Lord, Lord Phillips, for the care and attention which he has given to these clauses. I can assure the Committee that I shall take very careful account of all the points made in the debate. The noble Lord, Lord Jenkin, referred to the belief of the noble Lord, Lord Phillips, about the lack of fairness in the provisions. What came through in our debates on the Protection of Children Bill as it went through the House was that the lack of a system to protect vulnerable adults had meant that unsuitable workers had perhaps been dismissed from one employment only to find new employment in a similar position at a nearby establishment or agency.

Over the years there have been examples of service failure where workers, as a result of neglect or deliberate acts, have caused harm to elderly people or adults with learning disabilities. One can think of one example where adults with learning disabilities were treated very badly until inspectors stepped in and the home was closed. But in that case the nurse employed at the home at the time subsequently obtained work in another care institution.

It is one of our major aims in modernising social care to improve the protection of vulnerable people, whatever their age or condition. That is why we wanted to introduce this scheme to protect vulnerable adults by putting in place measures to put out and keep out of the workforce individuals who have shown themselves to be unsuitable to work with vulnerable adults.

The second consideration we had in mind in developing the Bill was the need to strike the right balance between the protection of vulnerable adults and safeguarding the rights of individual workers. We believe that here we have achieved that balance. In the first place, a worker who is the subject of any referral to the Secretary of State will know from the outset that a referral has been made and will have every opportunity to submit written observations to the Secretary of State.

Secondly, under Clause 73(2), a person who has been provisionally listed for a period of more than nine months may seek leave from the tribunal for it to determine the matter finally. Thirdly, we have provided, under Clause 73(1), for an appeal to the tribunal against a decision to list an individual. Fourthly, under Clause 74 we have provided for a person to ask the tribunal to review inclusion in the list, with the possibility of having the listing removed if the person has been listed for a continuous period of at least 10 years.

Finally, under Clause 70(3), the Secretary of State may remove an individual from the list if he is satisfied that inclusion on the list was wrong at the outset because, for example, new evidence comes to light or a criminal conviction is overturned.

Although Members of the Committee may disagree with the exact terms of the Bill, I hope it will be accepted that a great deal of effort has been put into trying to balance the overriding need to protect vulnerable adults, with the need to have safeguards, so far as is reasonable, to protect the rights of the individuals. As the Committee knows, those reflect in broad terms the provisions that we debated in the Protection of Children Bill.

As regards the specific points raised by the noble Lord, Lord Phillips, first in Amendment No. 143A, it is our belief that the amendment would seriously weaken the scheme we have devised for protecting vulnerable adults. It seems to us that it is important that the Secretary of State has the ability to list individuals provisionally and has flexibility in the way that he can use the power, in order to ensure that the protection of vulnerable adults is satisfied.

We have sought to strike the right balance between the safety of the public and the rights of the individual worker in those proposals. The question of listing will only arise where there appears to have been a risk of harm to a vulnerable adult. The noble Lord, Lord Phillips, quoted Clause 18, where the test of a serious risk to a person's life, health or well-being is used and consideration is given to applying to a justice of the peace to close a home immediately. It is our view that there is no direct read-across to the provisional listing of an individual, since the problems within a home can often be remedied by the removal of one or more individuals from it; not so when it is a matter of the individual worker.

In considering provisional listing of an individual, the Secretary of State needs to be able to take a broad view in the interests of all concerned and not to be hampered by the consideration that this amendment would impose upon him.

In Amendment No. 143B, the noble Lord, Lord Phillips, also put forward the potential introduction of a right to make oral representations to the Secretary of State and to introduce circumstances in which cases might be referred immediately to the independent appeal tribunal, bypassing the Secretary of State's decision to confirm listing or otherwise, following observations. I am not persuaded that oral representations to the Secretary of State are the right way forward, bearing in mind the right to make them at a later stage to the tribunal. Nor do I think it appropriate for the tribunal to be asked to rule on whether listed persons should have the right to go to it before the Secretary of State has confirmed the listing. However, I am sympathetic to the suggestion that the Secretary of State should be able to refer a case directly to the tribunal. One can see that in certain circumstances that may be advantageous. I am happy to take that matter away to consider it further.

In responding to the noble Lord, Lord Phillips, I accept that the points he makes are strongly held and that his concerns about the rights of individuals under the Bill are very important. But we are debating this Bill against the backdrop of serious concerns about the vulnerability of adults and the need to protect them from unscrupulous employees—hence the whole concept of provisional listing to provide an immediate safeguard for the protection of vulnerable adults. Procedures must then be followed before that person's place in the list can be confirmed, with the possibility of that individual appealing to the tribunal. I doubt that I shall persuade the noble Lord that the Government have achieved the right balance. This is a matter to which we have given great consideration and we believe that we have struck a fair balance between the two needs identified in the debate.

10.30 p.m.

Lord Phillips of Sudbury

I am grateful to the Minister for giving the reasons that he did. I am encouraged at least by one concession related to the discretion of the civil servant who deals with the matter to make his or her own reference to the tribunal, because in fairness he or she ought so to do As he anticipated, I am disappointed that the Government have gone no further than the position they adopted under the Protection of Children Act 1999. There are many Members of this House who, no doubt through their own fault, failed to latch on to the particular provisions in the Protection of Children Act 1999. We say that two wrongs do not make a right.

When I listened to the response of the Minister I wondered why the criminal law provided the various protections it does. For example, why should someone accused of rape, grievous bodily harm, or even worse crimes, be allowed to remain at large while the wheels of justice grind slowly, as they often do, especially as the prospects of an accused getting off a criminal charge, given the different tests involved and the right to jury trial, are much greater than the prospects of an individual escaping from this blacklist?

I was considerably sobered to hear the Minister say, "Don't worry, old chap, because at the end of he day a person can go to the tribunal and have a hearing". It is all very well to say that when one's career is in ruins because one's name is on the permanent list and the whole world can search it, as it must. It is no answer to say that a person whose reputation is destroyed and who has lost his livelihood can, perhaps following vast expense, have a tribunal decision six to nine months—even 12 months—later that vindicates him. I urge the Minister to go away and consider in particular the provisional listing.

I do not see that what is good and fair for the proprietors of a care home under Clause 18 of this Bill is unfair for an individual who is in greater jeopardy. His jeopardy is greater because the people who run the care home can go away and find other employment, whereas the person placed on the provisional blacklist is a dead man or woman. He or she does not even have a justice of the peace before whom a case can be brought in order for such an order to he made, as is required under Clause 18. It is no good the Minister saying that there is no read-across from Clause 18 to Clause 71. The read-across is basic justice. This is not a trivial matter: one is talking about the reputation and livelihood of potentially many people. Even if there were only 10 people at risk, this House should protect them. It depresses me that the party in government, which has been a stalwart defender of basic rights—it brought in the Human Rights Act and God bless it for that—should be apparently blind on this issue to what most of us would call the simple basics of fair procedure. The Minister made no reference to the opinion of Professor Jowell. I suggest that that is simply because no answer can be given.

Forgive the warmth of my address, but it is a hugely important matter and I believe that other noble Lords who have spoken share that view. The fact that there are few Members present tonight should not mislead the Government into thinking that they can get away with the matter with few noticing. I urge them to rethink the issue even though it will reflect back on to the Protection of Children Act. I beg leave to withdraw the amendment, but hope to return to the issue.

Lord Jenkin of Roding

Before the noble Lord withdraws his amendment, perhaps I may say that I endorse everything he said. I listened with the greatest care to the Minister's reply. He gave five safeguards that the Government believe they have built into the Bill. With the greatest respect to the Minister, if he again examines them, he will see that they do not begin to answer the case made by the noble Lord, Lord Phillips.

The noble Lord referred to a provisional list. There must be some form of suspension pending the necessary full inquiry. That seems to be the way ahead here. I understand the case the Government make: that if someone has a serious accusation made against him, he should not be able to rush off and get another job. There should be the equivalent to a suspension which indicates that there is a question mark; so let us examine this fully. A full examination must include oral hearings and the opportunity to hear witnesses for both sides. One has seen that in many disciplinary hearings in the public sector: the National Health Service, local government and elsewhere. If, at the conclusion of that, it is decided that there has been misconduct (or whatever is the trigger), one puts the individual on the black list, saying, "This person has shown himself completely unsuitable for work in this kind of environment. He may not get another job in this environment". That is such a condign penalty that it must occur only after proper procedures.

If this House has performed no other purpose, it has exposed the dangers that lie in Clause 71. It covers pages of the statute book and yet one can imagine the opportunities almost for blackmail: "We'll get you". One knows of such attitudes in some rather closed communities where there are bad relations, and so on. This kind of weapon could be a form of legal bullying of a very unpleasant kind. Proper protection has to be built in.

I hope that the Minister will be a little more forthcoming and recognise that he seeks to defend the indefensible.

Amendment, by leave, withdrawn.

[Amendments Nos. 143B to 144C not moved.]

Clause 71 agreed to.

Clause 72 [Employment agencies and businesses: duty to refer]:

[Amendment No. 145 not moved.]

Clauses 72 agreed to.

Clause 73 agreed to.

Clause 74 [Applications for removal from list]:

Earl Howe moved Amendment No. 146: Page 45, line 46, after ("70") insert ("or section I of the 1999 Act").

The noble Earl said: During the passage of the Protection of Children Act last year, I argued that there may well be circumstances in which the imposition of a lifetime's ban on working with children was unjust and inappropriate. The sorts of circumstances that I considered fell into that category were those where an individual had harmed a child or placed a child at risk of harm, not out of any malice but out of gross incompetence arising from, say, youthful inexperience. The initial verdict of misconduct could have been arrived at perfectly properly, but years later, when the individual might have grown up and perhaps brought up a young family of his or her own, it might well be appropriate to review the initial judgment that he or she was for ever unsuitable to work with children.

I thought that I detected at least some sympathy on the part of the Government with the arguments that I advanced, but it was, alas, not enough to convince them that the Bill should be amended in the way that I suggested. It was, therefore, with some pleasure that I noted the inclusion in this Bill of Clause 74, which enables an individual who has been included on the Secretary of State's list for at least 10 years as a result of past misconduct involving vulnerable adults to apply to the tribunal to have his or her name removed from the list and thereby effectively to rehabilitate himself or herself. This provision, for me, provides a considerable counterweight to my political and ethical concerns over granting a right to the state to debar an individual from being employed in a particular field for the rest of his or her life, regardless of circumstances.

We must bear in mind that, as the noble Lord, Lord Phillips, has graphically reminded us, the procedure by which an individual has his or her name confirmed on the list in the first instance is not a judicial one; it is an administrative one. In my view, there really must be a judicial or quasi-judicial means of appeal against the Secretary of State's decision, first, for those who consider that their names have been wrongly included in the list from the outset, and, secondly, for those whose subsequent conduct has demonstrated beyond reasonable doubt that they no longer pose a threat to vulnerable adults. Both such types of appeal are allowed for in the Bill.

However, the Protection of Children Act does not contain any provision parallel to that in this clause. My amendment seeks to rectify that. I cannot see any difference in principle between the rights of individuals blacklisted under this Bill and the rights of those blacklisted under the Protection of Children Act. It appears from the clause that the Government consider there to be good reasons for allowing a means of appeal for those who feel that they should be redeemed or rehabilitated. I shall be glad to hear from the Minister what those reasons are. I hope that he will go on to tell me that the Government are prepared to take a second look at the issue as it relates to the Protection of Children Act. I beg to move.

Lord Phillips of Sudbury

I should like briefly to identify myself with everything that the noble Earl, Lord Howe, said in moving the amendment. I would just add that the circumstances in which teachers can have themselves taken off the barring list under their regulations are a good deal more generous than those included in this clause, even with the amendment we are now discussing. One of the things the Government might like to do before Report is to consider introducing the wider scope of the teachers' regulations into the provisions in this Bill.

Lord Hunt of Kings Heath

I am grateful to the noble Earl, Lord Howe, for raising this matter. He is quite right: we had a very good debate on it at the Report stage of consideration of the Protection of Children Bill. I very much accept the general point of principle that he has made. However, the Government would prefer to use an alternative mechanism to reach the same point.

On 25th January 1999, the report of an interdepartmental working group on preventing unsuitable people working with children and on abuse of trust in relation to children was placed in the Libraries of both Houses. The report set out mechanisms for preventing unsuitable people working with children and its recommendations included a review mechanism under which a person banned from working with children could seek to have the ban lifted. Such an application for renewal would fall to a tribunal set up under the Protection of Children Act and would be available only 10 years after the imposition of the ban or the release from prison, whichever is later; at 10-year intervals thereafter; and should be available only if the banned individual can demonstrate exceptional circumstances why the ban should be removed.

The Government have accepted the broad principles of those recommendations, including a review mechanism for those banned from working with children. They have decided that they would like to implement those proposals through the crime and protection Bill, which was announced in the Queen's Speech and will be introduced in this Session. I hope that that meets the noble Earl's concern and that he will consider withdrawing his amendment.

10.45 p.m.

Earl Howe

I thank the Minister for that answer which is a welcome response to my concerns. It is a pity that during the passage of the Protection of Children Bill the Government were not able to be more accommodating. I am not sure why that was; perhaps they had not completed their deliberations. However, there would have been an opportunity for them to hasten their deliberations in view of the strength of feeling then expressed. Nevertheless, the main point is to reached the desired position, and I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Clause 74 agreed to.

Clause 75 [Effect of inclusion list]:

[Amendment No. 146A not moved.]

Lord Phillips of Sudbury moved Amendment No. 146B: Page 46, line 25, at end insert— ("(4) The Secretary of State may by order add to the category of persons subject to this section.").

The noble Lord said: I must be frank in admitting that when I tried to construe Clause 75 I was not aware that the phrase "person who provides care" is defined in Clause 69(7). That definition is satisfactory in terms of the evil I tried to avoid in Amendment No. 146A. If the Government believe that there is virtue in the extra discretion given in Amendment No. 146B, I am happy to move it. I beg to move.

Lord Hunt of Kings Heath

I am grateful to the noble Lord, Lord Phillips, for raising this matter. It is our intention to bring forward an amendment to create an appropriate power to extend the provisions of the scheme to include other services. I wonder whether on that basis the noble Lord will consider withdrawing his amendment.

Lord Phillips of Sudbury

I should be delighted to do so.

Amendment, by leave, withdrawn.

Clause 75 agreed to.

Clauses 76 to 85 agreed to.

Clause 86 [Boarding schools: national minimum standards]:

[Amendment No. 147 not moved.]

Clause 86 agreed to.

Clauses 87 to 94 agreed to.

Clause 95 [Supplementary and consequential provision etc.]L:

Earl Howe moved Amendment No. 148: Page 57, line 19, at end insert— ("(3) An order under subsection (1) amending or repealing an enactment, instrument or document shall be laid in draft before, and subject to approval by resolution of, each House of Parliament.").

The noble Earl said: I apologise to those Members of the Committee who were hoping to speak to Clause 90. I felt that in view of the hour it was a matter to which we could return at Report stage. I would like to make some remarks myself, but, with the leave of the Committee, I believe that they can wait.

Amendment No. 148 is prompted directly by a suggestion made by the Select Committee on Delegated Powers and Deregulation. The Committee's report on the Bill was published last month. Orders and regulations made under the Bill, other than simple commencement orders, are subject to the negative resolution procedure. Whatever we may think about that—I have not sought to propose exceptions to the provision in the main body of the Bill, despite all temptations—there is an issue to be addressed in Clause 95(2). The clause confers a power on "the appropriate Minister" to amend or repeal, any enactment, instrument or document".

I am not quite sure what significance the word "document" has here. Perhaps the Minister would be kind enough to enlighten us.

But the main bone of contention is whether it is right for orders that revoke or alter anything in the Bill not to be subject to the more rigorous parliamentary scrutiny inherent in the affirmative resolution procedure. I understand from the Government that they have re-examined the issue and they may have concluded that a change of heart is warranted. I hope that the Minister will be able to provide me with a definitive response. I beg to move.

Lord Hunt of Kings Heath

Yes, indeed, the Government are happy to acknowledge that they would support the intent of the amendment. The noble Earl, Lord Howe, will probably be disappointed to know that we are not particularly happy with the wording. I should say that there are dimensions in relation to the Welsh Assembly which will need further consideration, but I should be happy to talk to the noble Earl between now and Report stage and perhaps to provide him with a suitably worded amendment.

Lord Jenkin of Roding

Before my noble friend withdraws his amendment, I wonder whether there could be an explanation of the curious word, "document". Does that have some Welsh significance? I do not recollect ever having seen a clause which provided that one could amend a document; one amends legislation.

Lord Hunt of Kings Heath

I shall have to inquire into that matter and discover whether there is a Welsh element to it. I shall certainly write to the noble Lord.

Earl Howe

I am most grateful to the Minister and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 95 agreed to.

Clause 96[General interpretation etc.]:

Lord Hunt of Kings Heath moved Amendments Nos. 149 and 150: Page 57, line 33, at end insert— (""independent school" has the same meaning as in the Education Act 1996;"). Page 58, line 2, at end insert— (""proprietor", in relation to a school, has the same meaning as in the Education Act I996;").

On Question, amendments agreed to.

Clause 96, as amended, agreed to.

Schedule 1 [The Commission and the Council]:

[Amendment No. 151 not moved.]

Lord Clement-Jones moved Amendment No. 151 A: Page 60, line 21, at end insert ("and to be fulfilling these functions no later than 1st January 2002.").

The noble Lord said: Amendment No. 151A is designed to elicit from the Government a commitment—at least, a statement—about when the commission will start. That is what this "stop end date", so to speak, is designed to do. There is concern among the social care association and other organisations that there is no commitment from the Government as to when the bodies mentioned in the schedule will start to function. It has been suggested that the commission will start in April 2001, but the start dates for the councils appear not to have been mentioned. Of course, the commission must be in place before the national standards are set, otherwise local authorities will have to start to interpret the standards. Both councils and commission must function as soon as possible. I beg to move.

Lord Hunt of Kings Heath

I hope that I can reassure the noble Lord, Lord Clement-Jones. We expect that the national care standards commission will discharge its functions from April 2002. However, the general social care council and the Welsh care council are expected to function by April 2001.

Lord Clement-Jones

I thank the Minister for that reply. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 152 not moved.]

Lord Jenkin of Roding moved Amendment No. 153: Page 60, line 24, at end insert ("and these shall include one member who has experience and expertise in disability and special educational needs as they relate to children").

The noble Lord said: I wish to move this amendment. Amendments at the beginning of the Bill relate to the General Teaching Council to ensure that someone on that council has experience of disability. I remember that the noble Baroness, Lady Hayman, was most receptive to the view that someone on that council should have experience of disability. In the end, the Government produced an amendment which ensured that that was the case. It seems to me that this is much the same case. I believe that some of the amendments and speeches of the noble Lord, Lord Rix, have emphasised that there are special circumstances which affect disabled children and adults. Whenever one talks about training, one talks about other training inspectors, and so on. It seems to me that that would be reinforced if there were someone on the commission who had special experience in that area. I hope that the Government will be able to smile upon this amendment. I beg to move.

Baroness Masham of Ilton

I wish to support the amendment. I hope that most of the people on the commission will have experience with disability because it is a very wide subject. There are many different disabilities and certainly at least one member should have such experience. However, it is hoped that all members will have it.

Earl Howe

I rise briefly to support the amendment and to speak to my Amendment No. 157. With the leave of the Committee, I shall speak also to Amendment No. 168, which was by accident placed in the following group.

I believe that we must all be alert to the need for the wonderful word "balance" in the composition of the commission, whose functions are to be so multifarious. The responsibilities that it will be given for children are so important as to warrant, in my judgment, a member of the commission dedicated to children's interests in all their facets. We must bear in mind the history. Between, I believe, 1948 and 1970 there were separate children's departments in local authorities under the auspices of the Home Office, led by distinguished children's officers such as the late Baroness Faithfull.

Since 1970, when the large social services departments were set up, children's services have formed a rather small element of a giant entity. Although I do not pretend that the commission will be quite such a giant entity, we need to ensure that children's issues receive the attention which they deserve.

There needs to be a channel through which government policy affecting the child can be assimilated by the commission and the implementation of that policy properly monitored. A children's commissioner could also have a role in promoting the rights of children, as an arbiter on complaints, and could act as a watchdog on bad practice. That is particularly pertinent when one thinks of the allegations of child abuse in North Wales.

11 p.m.

Lord Clement-Jones

I support Amendment No. 153 and also Amendment No. 157 in the name of the noble Earl, Lord Howe. We should be grateful to the noble Lord, Lord Jenkin, for picking up this amendment and running with it.

In a sense, we are having a second bite at the cherry since we had some discussion on this matter earlier in our discussions on the Bill. We have heard part of the Minister's reply. Nevertheless, there is still considerable force behind these two amendments. I do not believe that we have yet teased out in full that the department really has an intention to have such expertise on the commission.

We must return at a later stage to the issue of the children's commissioner. We feel very strongly that the children's rights director is not an adequate way of dealing with the rights of children. A children's commissioner would be a much more preferable way of dealing with the matter. Therefore, we continue to support that position.

Lord Hunt of Kings Heath

Again, we return to issues which we discussed last week. I am extremely sympathetic to the intention behind the various amendments which have been dealt with in this group.

Clearly, it is extremely important that the commission and the councils are sensitive to the needs and interests of the many different types of services which are to be covered and service users who will, in one way or another, be in a relationship with the councils and the commission through the services which are provided.

In relation to the councils and the commission, we must take into account in particular the needs of those with disabilities or special educational needs and must recognise the importance of safeguarding the rights of children. One of the important aspects of this Bill is the requirement of the commission to appoint one of its staff as a children's rights director. I am absolutely convinced that the interests of particular groups of adult service users, such as those of disabled people, will be of equal concern to the commission's members.

However, allotting places on the commission's membership for individual interest groups does not seem to me the best or most appropriate way to move forward. That applies also to the councils. We clearly need a balanced membership. We should expect members to be drawn from a mix of backgrounds and perspectives. But I do not believe that the appointments process should be used to make individual board members representative of specific interest groups.

Indeed, seeing the noble Lord, Lord Jenkin, in his place brings to mind the area health authorities established in 1974 which were a classic example of what happens when specific interests are represented on a large body. One then finds it very difficult to reach sensible, corporate decisions because of that.

I have said—and I am sure the Committee will agree—that the appointment of members must be on the overriding principle of merit. The appointments will be made, as for all public appointments, through a process of advertisements and proper consideration of nominations. Clearly, nominations from interest groups or professional groups will be considered. But I resist the attempt to guarantee places for a specific interest on either the commission or the council.

Lord Clement-Jones

My Lords, I do not wish to prolong this unduly, but the Minister used the term "interest groups", which in the circumstances is the most pejorative term he could use. Would not "expertise" be just as good?

Lord Hunt of Kings Heath

My Lords, for somebody who made a living for a long time representing an interest group, I do not regard the word as pejorative. However, the point made by the noble Lord is the same relevant argument. There can be no question that in the membership we wish to have people with a broad range of expertise. I would find it difficult to accept if different backgrounds were named in the Bill which would have prior claim to places. Those who come to make the appointments need to have as much freedom as possible to ensure that they obtain the right calibre and balance of membership.

I turn to the amendment proposed by the noble Earl, Lord Howe, seeking the appointment of a children's commissioner. I have said previously that we are concerned to ensure that the issues regarding children are given a great deal of prominence by the commission. However, we believe that the appointment of a children's rights director will best serve the interests of children covered by the Bill. That appointment will be a senior position within the commission. The specific role will require a great deal of consideration and, indeed, consultation. We would expect that many members of the commission will have significant experience of children's services and related issues. However, I believe that the specific point raised by the noble Earl is best met by the appointment of a children's rights director rather than by having a specific member of the commission so identified.

I turn now to Amendment No. 173. I have a great deal of sympathy with the intention behind the amendment. All the councils and the commission will be concerned with raising standards of care. That will involve a variety of ways of producing information so that as many people as possible can have access to it. It will mean including people for whom English is not their main language and others with particular needs, such as disabled people and those with a learning disability. We shall direct the councils and the commission to investigate ways in which they will need to make their reports available so that they can be accessed by as many people as possible, including people with disabilities.

I believe that the noble Earl, Lord Howe, transferred Amendment No. 158—

Earl Howe

My Lords, perhaps it will assist the Minister if I say that, although I intended to speak more fully to that amendment, I did not do so. If he would care to pass it over, I should understand perfectly. Perhaps we can revert to it at a later stage.

Lord Hunt of Kings Heath

My Lords, I apologise to the noble Earl. I thought he had referred to Amendment No. 158 which relates to the question of a medical practitioner.

Lord Jenkin of Roding

My Lords, perhaps I may say in response to the Minister's remarks that I have a different recollection of the National Health Service and Community Care Bill. I remember moving, as an exception to the rule that people should be appointed on merit, that where trusts have a teaching hospital, they should have a representative of the university. I recollect all the way through those debates the then government resisting firmly the idea of people being appointed to represent particular interests.

But the noble Lord, Lord Clement-Jones, had it right. We are looking for a balance of expertise. It would be strange if there was nobody on the commission with experience of the field of disability. That is all we are asking for. However, the Minister has said what he has. We should not pursue the matter further tonight. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Clement-Jones moved Amendment No. 154: Page 60, line 24, at end insert ("and a majority of the Commission members shall be lay people").

The noble Lord said: I shall move Amendment No. 154 and my noble friend Lady Barker will speak to Amendment No. 159.

This is not the right time of day to enter into a debate, but this is a continuation of the discussions in relation to the composition of the commission. There is a strong view that a majority of the members of the commission should be lay people. The Minister will no doubt recall that we spent many happy hours discussing similar matters in the health Bill last year.

There is a good case for the commission to have a lay majority. It should be in touch with the needs of service users. This is the same situation as when we argued for a lay majority on NICE—a special health authority—during the course of the debates on the health Bill. There may also be a case for a lay majority on the English and Welsh councils which are to be set up. We do not agree in any event that the councils should have a professional majority and the noble Earl, Lord Howe, will be proposing an amendment to that effect.

However, it is not the time to debate that issue now. Perhaps we can return to a more comprehensive debate about the composition of the commission in due course. I beg to move.

Earl Howe

At this juncture I propose to take my cue from the noble Lord, Lord Clement-Jones. I shall not be moving the amendments in my name in this group tonight.

Baroness Barker

I want briefly to discuss Amendment No. 159. In so doing, even at this late hour, I want to note the appointment of Evelyn Rank Petruzzietto, the first person with learning disabilities to be appointed to the Disability Rights Commission.

First, I want to congratulate the Government on making that appointment. Secondly, I want to congratulate her; thirdly, I want to pay tribute to the noble Lord, Lord Rix, and all those who have worked for so long for the rights of people with learning disabilities to take part in our society. That is worth celebrating, even just for a moment. Like other noble Lords, I do not propose to talk at length about the amendments in this group.

Baroness Masham of Ilton

I agree with the Minister in that there should be flexibility. I do not agree with Amendment No. 155, which proposes that the majority should be qualified social workers. The country still has a lot of fear of social services. I should like to leave the choice flexible and based on merit.

Lord Hunt of Kings Heath

I need only respond to Amendment No. 154. The Government believe that it makes sense that lay members should form the majority of the membership of the commission. It is our intention that both the commission and the council will have a majority of lay members.

Perhaps I may say to the noble Lord, Lord Jenkin, that I was complimenting him on the changes he made to the composition of area health authorities and district health authorities because they made those institutions more corporate and less representative.

Lord Clement-Jones

I thank the Minister for that extremely positive reply. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 155 to 159 not moved.]

11.15 p.m.

Earl Howe: moved Amendment No. 160. Page 60, line 39, at end insert— ("(6A.—(1 ) The Secretary of State shall by regulations make provision as to—

1. (a) the appointment of and constitution of a committee of an authority to exercise its functions under this Act in relation to independent hospitals and independent clinics;
2. (b) the appointment of a chairman and other members of that committee (which may include persons who are not members of the authority) save that the committee shall comprise not less than 5 persons including the chairman appointed pursuant to this paragraph and the chief officer of the committee appointed pursuant to paragraph 8;
3. (c) the tenure of office of the chairman and other members of that committee (including the circumstances in which they cease to hold office or may be removed or suspended from office);
4. (d) the appointment of, constitution of and exercise of functions by sub-committees of that committee (including sub-committees which consist of or include persons who are not members of the authority);
5. (e) the procedure of the committee and of any sub-committees of it (including the validation of proceedings in the event of vacancies or defects in appointment).

(2) The chairman and chief officer of the committee constituted under this preceding paragraph—

1. (a) shall be members of the authority;
2. (b) shall be persons other than the chairman and chief officer of the authority.")

The noble Earl said: We come now to Amendments Nos. 160 to 166 which constitute for me perhaps one of the most important groups of this Committee stage. I shall try to be as brief as I can.

When I first read the Bill and saw how the Government proposed to regulate the private healthcare sector, I cannot pretend that I was particularly enthused. In a Bill devoted principally to the regulation of personal care, social care and care workers, the addition of independent healthcare to the responsibilities of the national care standards commission seemed a serious anomaly; indeed, it almost has the look of a last-minute "bolt-on" extra. I do not believe that I was by any means alone in that reaction. The Government had led us to believe that private healthcare would be regulated by a body completely separate from the regulator or social care. That original proposal at least had the merit of logic to it, as well as the merit of treating the private healthcare sector as a wholly different animal from social care, which indeed it is.

However, when the announcement came, we learnt that there was to be no separate regulator. Further, we now understand from the Minister that one of the key assurances given to the House by the noble Baroness, Lady Hayman, during the passage of the Health Act is not to be honoured either. I refer to the undertaking that she gave that the Government were open minded to the possibility that the regulator of private healthcare might wish to contract with another body, such as the Commission for Health Improvement, in order to help carry out local inspections. We now learn that that possibility, which for many of us held considerable appeal, is no longer on the agenda. The Minister's assurance was undoubtedly one of the factors that influenced me in my decision not to divide the House a second time on the issue of the remit of CHI. Therefore, to put it at its mildest, what we have now been told is extraordinarily disappointing.

While it would have been possible to propose a raft of amendments setting up a separate private healthcare regulator, I have chosen instead to deal with the Bill as we find it. I have done so because I believe that there is a way of making the Government's proposals into something that is meaningful and that will work. The amendments that we are now considering attempt to give substance to the idea that the Government have indicated is their intention; namely, to give responsibility for the regulation of private healthcare to a separate division within the national care standards commission.

What form should that division take? I am proposing that it should be a separate and distinct committee of the authority which would be granted clear delegated functions with a clear framework of accountability. It would be responsible to the authority for all that it did but would essentially comprise an administrative structure, complete with a chairman, chief officer and dedicated staff whose sole remit would be the supervision and inspection of independent hospitals and clinics.

I would envisage, too, that this division of the commission would be required to produce its own annual report and accounts to ensure full transparency of its operations and the cost of such operations. The amendments that I propose set out de minimis requirements beyond which government and the commission would retain considerable scope for manoeuvre. I think it would be fair to say that the independent healthcare industry's support for the proposed commission is largely contingent on a clear and transparent divisional structure for healthcare regulation. That focus is undoubtedly required because of the technical complexity and diversity of the issues that the division will have to address. Therefore, this set of amendments is designed to ensure that the regulation of healthcare is given sufficient weight within the commission and that it is both competent and transparent.

Unless the otherwise rather nebulous concept of a "division" is given real substance and unless the cultural divide between private healthcare and social care is recognised in a tangible way, we are in danger of creating a regulator of private hospitals that is less than credible. That should be avoided at all costs. I very much hope that the Government can see their way to support this set of amendments, at least in principle. I believe that such support would give considerable comfort to a wide array of people and organisations with diverse interests in this Bill. I beg to move.

Lord Clement-Jones

I rise briefly to express my support for the noble Earl, Lord Howe, in this amendment. Indeed, our only quarrel with it is that it does not go far enough. We debated the issue of the remit of the Commission for Health Improvement and we certainly believe that that would ultimately be the best solution. However, pending that, or if that is not possible, clearly clarification is needed from the Government regarding their intentions on this separate division. As the noble Earl, Lord Howe, said, it is certainly unclear at this stage how that will operate in relation to the commission's regulatory role. There are important cultural differences between health and social services. They have different accountability mechanisms, different management systems, training requirements and budgetary arrangements. Therefore clarification is certainly needed as to exactly how that division will operate.

Will the national care standards commission have a separate board to oversee its functions? If so, how will that be composed? Will there be medical representation on that hoard, for instance? How will its members be constituted? How will this separate division be accountable to the chairman and board members of the commission? The cost of setting up the commission will, of course, be met by the Department of Health and the Welsh Assembly. However, once the commission is up and running it is unclear how the funding streams for the social care and the independent healthcare sectors will operate. How will that relate to the separate division which the department intends to set up in this respect?

Lord Hunt of Kings Heath

I think that we ought not to go over the ground as to why private and voluntary healthcare is to be regulated within one national commission. As the Committee will know, the original intention was to have a separate regulator for the private healthcare sector but that was to run alongside the proposed eight regional care commissions. We decided that that was not the right way forward because we believe that consistency of approach throughout the country in relation to regulation is important. In bringing the proposed eight regional care commissions into one care commission it was then much more appropriate to include within those arrangements the private and voluntary healthcare sectors, which is what is contained in the Bill.

I have no disagreement with the contention that within the national care standards commission there has to be a high focus of expertise in relation to healthcare regulation. For that reason we intend that there should be a separate division of the commission to take forward that work. But where I part company with Members of the Committee opposite is as regards the suggestion in the amendment that there should be established a statutory committee within the national care standards commission to oversee the regulation of private and voluntary healthcare. The intention appears to be to establish a separate regulatory body for healthcare within the main commission with a status equal to that of the commission itself, with members appointed by the Secretary of State and with the right to establish its own independent committees and sub-committees. Obviously the details of this are probably not at all clear but I question whether that kind of structure is really workable within one corporate organisation.

I do not believe that it is necessary to go that far and to establish those kind of arrangements because, as I have said, we shall have a clearly identified division of the commission to handle regulation of private and voluntary healthcare. I believe that such a division will enable the commission as a whole to ensure that it has a proper focus on private healthcare matters, and that it will be able to have high calibre staff to advise on and operate the regulation of the private healthcare sector. I believe that that is the best approach. I also point out that the commission already has the power in the Bill to establish committees and sub-committees to help it carry out its work. There would be nothing to prevent the commission setting up a committee to look at, and be responsible for, issues in relation to private healthcare regulation. The commission being able to set up a committee is a very different matter from the proposal in the amendment to establish a statutory committee. That would make the relationship between the commission and the committee very difficult to manage.

Lord Jenkin of Roding

If it has done nothing else, the Committee stage of the Bill has exposed—I say this in all charitableness to the Minister—the hollowness of the Government's arguments for their change of heart and for deciding not to have a separate regulator for private and independent healthcare. I have no doubt that between now and the Report stage, we on this side of the House—I hope I can include the Liberal Democrats in this—must come up with an amendment or a new clause which will fulfil what has clearly been the view expressed from almost all parts of the House: that the private and independent hospital service requires a completely different approach.

It seems quite absurd that all the subjects we have been discussing about vulnerable adults, children, homes, child-minders and so on, should also take into account hospitals such as the King Edward VII, the Sister Agnes and the St John of God in Yorkshire, a wonderful voluntary hospital. I cannot believe that a sensible way of proceeding is for the high quality medicine which is practised in such hospitals to come under the same regime.

When we come to the later stages of the Bill, this House will want to send it on to the other place with a more sensible structure, perhaps with the CHI having extended terms of reference, or perhaps even with a separate regulator. With the greatest respect to the Government, that cannot be right.

Lord Clement-Jones

I agree with the noble Lord, Lord Jenkin. I am extremely disappointed by the Minister's reply. The noble Lord, Lord Jenkin, used the word "hollowness". I found the Minister's response extremely vague when set against the concrete nature of the amendment. II was difficult to discern precisely what kind of mechanism is intended for the running of the division. I do not think I received any particular answer to any of the questions that I posed about accountability, mechanisms, management systems and so on. I am sorry that the debate is taking place so late at night.

It all goes to show that the regulation of independent healthcare in the Bill is just an add-on; it has been bolted on. It is not coherent and should not be a part of the Bill.

Baroness Masham of Ilton

We should protect all patients. I am sure that many on the Cross-Benches will support the noble Earl, Lord Howe, at Report stage. There should be minimum clinical standards in whatever hospital.

Lord Howe

Like my noble friend Lord Jenkin and other noble Lords, I am disappointed with the Minister's response. He said that the proposal outlined in the amendment was not workable. I am not sure that he gave many reasons for that. It seems to me that there is every reason to think that a delegated structure would work. I see no reason why it should not.

The Minister failed to put any flesh on the bones as far as concerns the proposed separate division. He did not make clear what form the division will take; what the division will amount to; what the structure will be; who will run it, and so on.

I share the verdict of the noble Lord, Lord Clement-Jones, on the Minister's response. We must come back to this issue at a later stage because it is too important to let drop. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 161 to 170A not moved.]

1.30 p.m.

Lord Hunt of Kings Heath moved Amendment No. 171: Page 62. line 15, at end insert—

("Training

13A. The Commission may provide training for the purpose of assisting persons to attain standards set out in any statements published by the Secretary of State under section 21.").

On Question, amendment agreed to.

Lord Hunt of Kings Heath moved Amendment No. 172: Page 62, line 19, at end insert—

("Fees

14A.—(1) Subject to the provisions of this Act, the Commission may not, except with the consent of the Secretary of State, charge a fee in connection with the exercise of any power conferred on it by or under this Act.

(2) The Commission may charge a reasonable fee determined by it—

1. (a) for any advice, forms or documents provided for the assistance of a person who proposes to apply, or is considering whether to apply, for registration under Part II; and
2. (b) for any training provided by it under paragraph 13.A.

(3) The consent of the Secretary of State for the purposes of sub-paragraph (1) may be given in relation to the exercise of a power either generally or in a particular case.").

On Question, amendment agreed to.

[Amendment No. 173 not moved.]

Schedule 1, as amended, agreed to.

Schedule 2 [Child Minding and Day Care for Young Children]:

[Amendments Nos. 173A and 173B not moved.]

Schedule 2 agreed to.

Schedule 3 [Minor and consequential amendments]:

Lord Hunt of Kings Heath moved Amendment No. 174: Page 69, line 28, leave out ("registration") and insert ("appropriate").

The noble Lord said: In moving Amendment No. 174, I should like to speak also to Amendments Nos. 175 to 177. These four amendments are simply to change the shorthand term used in the Children Act, as amended by the Bill, to refer to the national care standards commission and the National Assembly for Wales. The term "registration authority" is potentially confusing as it could conflict with the new Part XA of the Children Act, as inserted by Part V of this Bill, which also uses the term "registration authority". There is no change of any meaning or substance as a result of these amendments. I beg to move.

On Question, amendment agreed to.

Lord Hunt of Kings Heath moved Amendments Nos. 175 to 177: Page 69, line 30, leave out ("registration") and insert ("appropriate"). Page 69, line 36, leave out (""registration") and insert ("appropriate"). Page 70, line 12, leave out ("""registration") and insert ("""appropriate").

On Question, amendments agreed to.

Schedule 3, as amended, agreed to.

Schedule 4 agreed to.

Schedule 5 [Repeals]:

Lord Hunt of Kings Heath moved Amendment No. 178: Page 74, line 16, column 3, leave out ("and (2) to") and insert (", (2)(a) to (k), (3) and").

The noble Lord said: This is a minor correction to the repeals schedule. We are making a number of repeals of existing provisions made under the Children Act. This amendment is intended to ensure that we do not repeal by mistake the power to make regulations under that Act which would require private children's homes to have a complaints procedure similar to that of local authorities under Section 26 of that Act. That power has been exercised in respect of private children's homes in the Representations Procedure (Children) Regulations 1991 and this amendment is necessary to ensure that those provisions remain in force as respects these homes.

The Bill will require all children's homes to have adequate complaints procedures within the home itself. But aside from that we want also to ensure that the statutory Children Act complaints procedure applies to private children's homes. This amendment will ensure that that remains so. I beg to move.

On Question, amendment agreed to.

Schedule 5, as amended, agreed to.

House resumed: Bill reported with amendments.

House adjourned at twenty-five minutes before midnight.