Lords Sitting of 28 March 2000

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Bradford.

The British Steel Industry
2.36 p.m.
Lord Islwynasked Her Majesty's Government:
What is their most recent assessment of the future of the British steel industry.
Lord McIntosh of Haringey: My Lords, the UK steel industry has undergone substantial restructuring since the 1970s. Productivity and yield rates have increased and emissions have declined. The industry continues to take positive action to maintain its international competitiveness through such measures as greater teamworking, the introduction of new technology and the development of new products. I believe that it has excellent long-term prospects.
Lord Islwyn: My Lords, with BMW in mind and with uncertainties in other sections of the motor industry, will the Minister give an assurance that the Government will keep in the closest possible contact with Corus, formerly British Steel, in order to be fully aware of the company's future policies? Does he appreciate that steel is still the cornerstone of the Welsh economy, so that, whereas we can argue for matching funds for objective one status, nevertheless a major steel closure would make a difficult situation even worse?
Lord McIntosh of Haringey: My Lords, I entirely agree that the health of the motor industry is quite essential to the steel industry. I acknowledge the difficulties with BMW at Longbridge. However, we still have Land Rover at Solihull, the Peugeot 406 at Ryton, the R75 at Cowley and the Jaguar S-type at Castle Bromwich. There is a good deal of the motor industry over which that question does not hang.
Ministers are in almost constant contact with Corus. They had a meeting with its representatives only this morning about the issue raised in the Western Mail regarding Nedcar in the Netherlands. They were reassured to learn that Corus has good relations with both the old and new management at Nedcar. We are also entirely seized of the importance of the steel industry to the Welsh economy.
Lord Ezra: My Lords, is the Minister aware—as I am sure he must be—that 70 per cent of steel exported from this country goes to mainland Europe and that, although, as he mentioned, the steel industry here has substantially improved its productivity, in terms of sales in euros this has been totally overtaken? There has been a 10 per cent improvement in productivity
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over recent years but a 30 per cent increase in the price in euros. Is it not time that the Government seized the problem of the exchange rate and made a firm commitment on what we are going to do about the euro and avoided putting further imposts on the steel industry, such as the rerating which has apparently occurred in South Wales?
Lord McIntosh of Haringey: My Lords, the Government have consistently rejected the view that they should intervene directly in the exchange rate or set exchange rate targets to the Monetary Policy Committee, as opposed to the interest rates and price stability targets which it sets. It is of course true that the majority of British steel exports go to Europe, but it is encouraging that, with the recovery of the soul h-east Asian economies, there is an opportunity for increased exports there as well.
Lord Brookman: My Lords, is my noble friend aware that Corus, formerly British Steel plc, has obtained—I am pleased to say—a substantial order from the Turkish electricity industry for some 70,000 metric tonnes of steel? That is good news against a backdrop of a company which lost a quite considerable amount of money last year. In that respect, does my noble friend share my concern and that of the workers, mainly because of the strength of sterling but probably also because of the multinational nature of the company now, that orders could go abroad as easily as remain in the United Kingdom? Does he agree that there is therefore, as he indicated earlier, a need to keep in close contact with the company in that regard so that there will be tangible support such as is now being obtained with the climate change levy?
Lord McIntosh of Haringey: My Lords, I am happy to join with my noble friend in congratulating Corus on the Turkish order. I believe that I have made clear the importance which the Department of Trade and Industry attaches to close contact with Corus. I hope that I have given evidence that we are maintaining that close contact.
Lord Mackay of Ardbrecknish: My Lords, the Minister will recall that I expressed sympathy for him last Thursday when he had to come along instead of the Minister responsible at the DTI, the noble Lord, Lord Sainsbury. I express the same sympathy for him today. Is the Minister aware that I am delighted to hear his song of praise for a privatised industry? I cannot remember hearing the same song at the time it was privatised by the Conservative Government. However, the problems raised by the previous two speakers are real. I refer to the problem of Longbridge perhaps reducing its demand for steel and to the weak euro. Can the Minister promise that no more burdens, especially along the lines of emissions, will be placed upon the steel industry in this country?
Lord McIntosh of Haringey: My Lords, when the noble Lord finally asked a question as opposed to expressing sympathy, he asked me to promise that no

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more burdens should be placed upon the steel industry. Burdens have not been placed upon the steel industry. Within the limit of our abilities we have done everything we can to support the steel industry in this country.
Lord Stoddart of Swindon: My Lords, does my noble friend deplore those on the Liberal Benches and elsewhere for wanting to talk the pound down? Is it not a fact—I asked this question before and I shall ask it again—that the pound has been extremely reasonable and steady against the major currencies of the world? It is the euro which has declined, not only against the pound but against all other major currencies in the world. Therefore, it is not sterling that needs to be dealt with but the euro. That will be done when the rest of the world has more confidence in Europe than it has in this country and others.
Lord McIntosh of Haringey: My Lords, my noble friend has asked this question before and I have answered it. I agreed with him that the strength of the pound has increased in relation to the euro very much more than it has in relation to the dollar and the yen. However, if he is suggesting that we should do something about the weakness of the euro, he is slightly outside the realms of possibility of government policy.
Baroness Hogg: My Lords, can the Minister confirm that the budget forecasts of the economy are based on a decline in sterling and that, as the Red Book states, if it does not occur there will be further losses in market share?
Lord McIntosh of Haringey: Yes, my Lords. We believe that the position of sterling is over-valued in the long term. Our budget forecasts are based on that assumption.
Lord Shore of Stepney: My Lords, if my noble friend believes that it is over-valued in the long term, why does he not do something in the short term?
Lord McIntosh of Haringey: My Lords, my noble friend and others always seem to think that there is something which the Government can do about exchange rates. We believe that the best we can do for exchange rates and for the economic future of this country is what we have been doing; that is, to ensure economic stability consistent with high levels of growth and employment.

Higher Education: Funding
2.45 p.m.
Baroness Youngasked Her Majesty's Government:
Whether they consider that universities will be able to recruit and retain staff following the estimated 1 per cent fall in the value of government grants for the "unit of resource".
The Minister of State, Department for Education and Employment (Baroness Blackstone): My Lords, the recruitment and retention of staff is a matter for higher education institutions. Our spending plans made substantial extra funds available for higher education: a real terms increase of 11 per cent over four years. We are clear that, unlike the previous government, which dealt harshly with university funding, we are giving universities and colleges the chance to improve the quality of their teaching and research. The 1 per cent efficiency saving reflects a recommendation made by the Dearing Report on the funding of higher education.
Baroness Young: My Lords, I thank the Minister for that reply. However, is she aware that Sir Brian Fender commented that the recent funding is less than satisfactory, particularly in recruiting and rewarding staff? Is she further aware that, unless universities recruit and retain the very best staff, they will cease to be very good universities and that young people will go abroad? There is already evidence that the best are going to the United States. This is a serious issue which I hope the Government will address.
Baroness Blackstone: My Lords, I am aware of the remarks made by Sir Brian Fender. It is always very nice when we can provide more funding. I have no doubt that many people in universities have expectations of more in future. However, as I stated in my initial reply, the Government have put a substantially increased amount of funds into our universities, which compares with substantial cuts under the former government.
Between 1989 and 1997 there was a 36 per cent decline in the unit funding of our universities and a 6.5 per cent projected efficiency saving for the first two years. In comparison, this Government are being immensely generous. I am aware of the importance of recruiting good staff for our universities. I believe that the profession still attracts many able young people. I am aware of the report of the Bett Committee and proposals from that committee for improvements. We are considering the whole question in the next spending review, but I cannot anticipate the outcome.
Baroness Lockwood: My Lords, is my noble friend aware of the sense of relief at the Government's funding of universities in bringing the unit of resource, the efficiency gains, down to 1 per cent as against the very severe decline in the unit of resource over the previous decade under the former administration? Is she further aware that there is now a real sense of concern about uncompetitive salaries within the higher education system? Can she assure us that in the comprehensive spending review due later this year, the problems of universities will be given very real attention?
Baroness Blackstone: Yes, my Lords, I am aware of the relief which greeted the arrival of the new Government and their changed position in relation to funding of universities. I was a head of a university

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institution who, along with other heads of such institutions, was in despair at the end of the former Government's time in office. I am aware of the points raised by my noble friend. As I have said, in the next comprehensive spending review we shall be looking at higher education funding, and many other areas, but I cannot anticipate the outcome.
Baroness Sharp of Guildford: My Lords, is the Minister aware that the bulk of the funding provided for the higher education sector in the last comprehensive spending review was used to make good the backlog on capital expenditure on equipment rather than on salaries? Given the expansion in the numbers of students, as the noble Baroness pointed out, the unit of resource is going down. This problem is particularly acute in science and engineering departments. Is not the Minister worried, given the degree to which some of our industries—the pharmaceutical sector in particular—are dependent on taking on high quality graduates in those disciplines, that the uncompetitiveness of teaching salaries is running down those departments to the detriment of our industries?
Baroness Blackstone: My Lords, I am aware that quite a high proportion of the additional expenditure has been allocated to capital projects. However, I believe that that was what the universities wanted. Their infrastructure was in such an appalling state after the severe cuts that were made under the previous administration that it has been necessary to put this right. Of course am also aware of the fact that salaries in higher education have not risen as much as they have in many other parts of the public sector. However, as I have already said, it is a matter for universities to decide how much of their extra funding they use for academic pay. I can only repeat once more what I have already said about the next spending round.
Lord Forsyth of Drumlean: My Lords, on the very day that the Prime Minister has sought to wrap himself in the skirts of Britannia, can the Minister tell the House that she will end the discrimination against English students attending universities in the United Kingdom who need to pay fees, and against English universities where Scottish students attending English universities need to pay fees? If New Labour truly stands for a United Kingdom and for fairness, is it not high time that the Government responded to the expectations they raised at the time they were elected to office that funding would be made available for higher education?
Baroness Blackstone: My Lords, as regards the issue of discrimination—I believe that was the term used by the noble Lord—I refute that this is a matter of discrimination. We have a devolved system. If Scottish institutions and the Scottish Executive choose to spend their money in a different way, that is a matter for them. I do not accept that English students are discriminated against. They may make decisions on a voluntary basis about where they attend university. They can decide whether to stay in England or move to Scotland.
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In response to the noble Lord's point on investment in higher education, the Government are doing exactly what they said they would do: over the four years from 1998–2002, we are investing an additional £1 billion. That represents an 11 per cent increase in real terms and a 22 per cent increase in cash terms. Furthermore, that sum represents a much greater investment than anything done by the previous government during their period in office.
Lord McCarthy: My Lords, does the Minister accept that the Government have been slow to realise the extent of the damage done to the public services by 14 years under the previous government, during which they squeezed pay in the public sector? This is already beginning to have an impact on this Government's only attempt to make various improvements in various parts of the public sector. For example, we almost had no schoolteachers so that we could not do what we wanted to do in education. We almost had no nurses so that we could not do what we wanted to do in the health service. Unless we do something about rates of pay in higher education, we shall not be able to fulfil our objectives in that area either.
Baroness Blackstone: My Lords, I am afraid that I do not accept what my noble friend has said. We have made very substantial pay increases—far above inflation levels—to both teachers and nurses.
The Lord Privy Seal (Baroness Jay of Paddington): My Lords, while I am obviously in the hands of the House, because we have reached 17 minutes of Question Time, I believe that we should probably move on.

Abnormal Loads: Escorts
2.55 p.m.
Lord Hoyleasked Her Majesty's Government:
Whether they have reached any conclusions on whether it is necessary to use highly trained police officers and their equipment when transporting abnormal loads.
The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton): My Lords, the public consultation on our proposals to transfer some of the responsibility for escorting abnormal loads from the police to private escorts has been completed. Some respondents have questioned the viability of the proposals and there are a large number of technical points which need to be addressed. Further discussion with the police service will be necessary, but we will announce our conclusions as soon as we can.
Lord Hoyle: My Lords, perhaps I may say to my noble friend that nobody could accuse the Home Office of reaching an early conclusion on this matter. It was first mooted in 1994, an interim report was published in 1997 and final comments and views were

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requested in January 1999. In the meantime, of course, we see miles of traffic queuing at a standstill on our motorways because abnormal loads are being moved at peak periods. I ask my noble friend: please can we have some action on this matter?
Lord Bassam of Brighton: My Lords, I think that I had better accept that as a friendly question. I agree with my noble friend, it has taken an inordinately long time even to get close to reaching a conclusion. Furthermore, he is right to remind the House that this matter was the subject of discussions even, I believe, before 1994. Careful consideration was being given to the post-Sheehy proposals and close inspection was made of both the core and ancillary tasks of the police service. I take my noble friend's point to heart and I shall certainly go back to have more talks with officials to find ways to speed up progress in this area. However, I think that it is fair to say to the House that this is a complex issue with many subsidiary issues involved. Several agencies must be consulted so that the final proposals are absolutely right.
Lord Mason of Barnsley: My Lords, can my noble friend indicate to the House what proposals his officials have in mind? Is he aware that around 150,000 escorted movements take place each year? There does not seem to be any kind of national plan and the service differs from county to county. I believe that it is urgent that something is done about this. Is my noble friend further aware that there are only two simple requirements here? First, night travel should be imposed, with none taking place during the day. Secondly, if such night services are to be escorted by the police, let the contractors and not the police pay for it. That might give us an indication of how much the police are presently having to pay for such duties.
Lord Bassam of Brighton: My Lords, as I said in an earlier response, this is a complex area, although my noble friend is right to draw attention to the impact that such load movements have on our roads. I have been told that there are around 1.5 million movements of abnormal loads per year. I am also advised that, when calculations were last made, it was estimated that the cost of escorting abnormal loads lay somewhere in the region of £7 million per annum. The proposals have looked at the idea of introducing private escorts. However, this must be subject to further discussions, which is only right. However, I repeat that this area is complex and we need to take care because there is no easy answer to the problem. Simply to assert that we can transport abnormal loads on the motorway network during the hours of darkness falls short of solving the problem. Other issues must be taken into account, not least because most major repair works and changes to the motorway network, such as the re-alignment of routeways, take place at night. Noble Lords will appreciate that this is a complex issue, but I agree that conclusions must be reached soon.
Baroness O'Cathain: My Lords, if this issue is so complex, could the Minister not answer his noble friend simply on the point of whether contractors should pay for the policing of such loads? The Minister's noble friend has asked a simple question which could receive a simple answer.
Lord Bassam of Brighton: My Lords, under the provisions of Section 25 of the Police Act 1996, it is open to the police to charge for this service. The facility for such charging is already in place. However, some parts of the haulage trade would be quite happy to have charges raised on them, while others believe that it is a service and should be provided free. Some would be happy with private escorts, while others believe that the police should carry out these duties. It is most important that the Government should reach a balanced view. We must listen to the haulage industry, listen to the police service and try to work together to get it right.
Lord Cope of Berkeley: My Lords, does not part of the difficulty lie in the fact that the Home Office is conducting all these discussions and writing letters rather than answering questions?
Lord Bassam of Brighton: My Lords, we carried out a detailed consultation. The noble Lord will know that, because it was his government that began this process. They were determined in 1995 to introduce private escorts for abnormal loads on motorways. They failed to do it in their time; we intend to get it right in ours.

ECHR: Legislative Compatibility
3 p.m.
Lord Campbell of Allowayasked Her Majesty's Government:
Whether they will ensure that, when the rectitude of a statement on a Bill's compatibility with the European Convention on Human Rights is challenged, a reasoned justification will be given in the course of debate on that Bill.
Lord Bassam of Brighton: My Lords, we believe that a Minister in charge of a Bill should address convention-related issues during proceedings on the Bill. It will be for him or her to decide how best to do so in the context of the debate.
Lord Campbell of Alloway: My Lords, I thank the noble Lord for his reply. Does he recall that at all four stages of the Representation of the People Bill the rectitude of the statement which he made as to compatibility was challenged on the basis of decisions of the European Court of Human Rights? Does he recall also that no reasoned justification was given? If the advice on which that statement was made is

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kept on file, why, in accordance with government practice, was the substance not disclosed in the exercise of' his ministerial discretion?
Lord Bassam of Brighton: My Lords, I am grateful to the noble Lord for that reminder. He is right that it was a question that he raised at each stage of the Representation of the People Bill. It is a matter for Ministers to give their opinion as to whether or not the legislation for which they are responsible conforms with convention rights. That is a statement that is made on the face of each Bill. Legal advice to Ministers is kept in confidence, as has been the practice across many years and across many administrations.
Lord Jenkins of Putney: My Lords, does my noble friend agree that one man's reasoned justification is another's smooth excuse?
Lord Bassam of Brighton: My Lords, I rather like the way my noble friend puts that.
Lord Goodhart: My Lords, will the Minister confirm that one of the duties of the human rights committee of your Lordships' House will be to monitor Bills for compatibility with convention rights and to give a reasoned report to your Lordships' House on any apparent incompatibility? Can he therefore tell us, now that a distinguished academic has been appointed as legal adviser, when the committee will be set up and start work?
Lord Bassam of Brighton: My Lords, I can confirm the noble Lord's first statement. It is the Government's intention to introduce the Human Rights Act on 2nd October this year. We have not fixed on a firm date for the creation and establishment of the Joint Committee of both Houses. However, the points raised by the noble Lord are up for its urgent consideration.
Baroness Carnegy of Lour: My Lords, despite the fact that the committee is about to be set up, it is important that the Minister concerned should be capable of expressing his own view of the statement that the Bill is compatible. If the Bill is not compatible, it will be changed under the fast-track procedure because of the Human Rights Act. Should not the Minister therefore be prepared to give his own view and not hide behind the fact that his legal advice is confidential?
Lord Bassam of Brighton: My Lords, I am interested in the point made by the noble Baroness. However, I do not believe it would be right for the Minister to offer a personal view. It must be a view based on sound legal reasoning. Ultimately it is a matter for the courts to determine. We give a legal reason and that is the explanation which should be carefully provided for.
The Earl of Northesk: My Lords, following the question of the noble Lord, Lord Goodhart, is the Minister fully seized of how urgent the setting up of
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the Joint Committee has become in order for Parliament to have proper access to an objective and independent body of opinion in human rights issues as they affect the drafting of statute?
Lord Bassam of Brighton: My Lords, it goes without saying that the Government are seized of that fact. After all, it is our legislation. We are proud of it and want to ensure that it is effective. The points made by the noble Lord are perfectly proper. As soon as the committee is in place—appointments are already being made—it will begin its important work.
Lord Campbell of Alloway: My Lords, I thank the noble Lord for not answering either of my Questions.

Census (Amendment) Bill [H.L.]
3.4 p.m.
Lord Weatherillrose to move, That the proceedings of Tuesday 14th March be vacated.
The noble Lord said: My Lords, the Motion is required to vacate the proceedings on Third Reading of my Bill on 14th March. Those proceedings were entirely formal, as the single line recording them in Hansard attests. Unfortunately, they are now thought to have been defective because I did not at that time invite the House to agree to the privilege amendment. That is because at that stage it was not thought that the Bill would have any financial implications. However, on further inquiry it appears that the Bill may result in some additional costs which will need to be sanctioned by the other place. This means that a privilege amendment is required in order not to offend the financial privilege of the Commons. Accordingly, the Bill has been returned from the Commons for that to happen.
If your Lordships agree to my Motion, I shall invite your Lordships to give the Bill another Third Reading and to agree the privilege amendment before the Bill is finally sent back to the Commons. I beg to move.
Moved, That the proceedings of Tuesday 14th March be vacated.—(Lord Weatherill.)
Lord Strathclyde: My Lords, I cannot allow this moment to pass without some comment. I make it plain that I ascribe no specific blame to the noble Lord, Lord Weatherill. But this is a most unusual procedure. I am sure it is not without some precedent, but it is unusual for a Bill to be vacated.
It is my understanding that this Bill is in fact a government hand-out Bill and it is doubly a reason why the noble Lord, Lord Weatherill, is not to blame. But I wonder when the last occasion was that this happened to a Bill drafted by parliamentary counsel. Also, does the noble Lord, Lord Weatherill, know what Minister was responsible for this? Would it not have been better, rather than having to ask this question in the House, to have put this on the Minute of the House last Thursday and an explanation be given and recorded in Hansard? Would not that have

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been more convenient to Members of your Lordships' House rather than having this small debate this afternoon?
Lord Weatherill: My Lords, I can enlighten the noble Lord, Lord Strathclyde. The last time a privilege amendment was omitted was in 1992, when your Lordships agreed to a Motion to vacate proceedings on the Third Reading of the Civil Rights (Disabled Persons) Bill. There are other examples in 1984 and 1980.
Lord McIntosh of Haringey: My Lords, this is a Private Member's Bill and not a government Bill. But it is only right that I should intervene as the Minister representing the Treasury in this House to say that no blame whatever attaches to the noble Lord, Lord Weatherill. This Bill was introduced by the noble Lord and it was only at a later stage that the Treasury, which is the controlling department for the Office for National Statistics, realised that there may be some financial implications. If this has caused difficulty to the House, I apologise on behalf of the department. But it should be clear that the noble Lord, Lord Weatherill, is entirely without fault.
On Question, Motion agreed to.

Census (Amendment) Bill [H.L.]
Bill read a third time; an amendment (privilege) made; Bill passed, and sent to the Commons.

Care Standards Bill [H.L.]
3.9 p.m.
Report received.
Clause 2 [Independent hospitals etc.]:
Earl Howemoved Amendment No. 1:
Page 2, line 23, at end insert—
("( ) An independent hospital includes a hospital sited on property owned by the health service but which is not managed or controlled by the health service.").
The noble Earl said: My Lords, in moving this amendment, I shall speak also to a further amendment tabled in my name, Amendment No. 3. Amendment No. 1 is a very simple probing amendment, the purpose of which is to clarify the meaning of "independent hospital" in the context of Clause 2. In Committee, the Minister confirmed that pay beds within NHS hospitals are subject to NHS rules. However, there is an element of ambiguity that relates to hospitals that are sited on NHS property but which are not managed or controlled by the health service. There are examples of hospitals that are owned by the NHS but which are leased to a private operator. Common sense and logic would suggest that these are "independent hospitals" and, therefore, subject to regulation by the national care standards commission. But, as we are all aware, the definitions in this Bill are orientated around physical premises. In the case of
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hospitals, we need to be absolutely clear that it is the management and control of a hospital, rather than where it is or who owns it, that determines the regulator.
The Minister will doubtless tell me that the meaning of Clause 2(2) is perfectly clear and that a health service hospital is defined in Clause 97 as having the same meaning as in the 1977 Act. I took the trouble to look up the definition in that Act, which reads as follows:
"'A health service hospital' means a hospital vested in the Secretary of State [for the purposes of his functions] under this Act",
or vested in an NHS trust. I should be grateful for the Minister's confirmation that the potential ambiguity to which I referred—which, I should add, is a concern voiced by the BMA—is easily dealt with.
I turn to Amendment No. 3, which is another probing amendment. Clause 2(4) makes it clear that GP surgeries carrying out NHS work are exempted from the definition of "independent clinic" and will, therefore, fall within the scope of NHS regulation. However, GPs often carry out private practice work from their surgeries; for example, various types of minor surgery, laser treatment and vasectomies. These treatments frequently involve anaesthesia or sedation. There is an issue here about dual registration. On the one hand, primary care premises where private work—and only private work—is carried out will fall within the remit of the new regulatory framework. On the other hand, GP premises where NHS work is carried out are exempt under Clause 2(4). Can the Minister say whether it is correct to assume that GPs providing NHS services from their premises, where some private work is also undertaken, will not need to register with the new national care standards commission?
At present, GPs must register under the nursing homes regulations should they treat patients other than those on their own lists. Some GP practices provide services such as vasectomies to their own patients, as well as to patients of neighbouring GPs. This is a health service contract that can be paid for out of the waiting list initiative money. Can the Minister say whether, under the regime put in place by this Bill, GPs who provide NHS treatment for patients not on their own lists will need to register with the national care standards commission? I beg to move.
Lord Clement-Jones: My Lords, perhaps I may question the Minister as to what procedure he proposes to adopt at this stage. I make that request because he is not only going to reply to the noble Earl, but will also be proposing some amendments tabled in his name. Before the noble Lord replies to the noble Earl, perhaps I may suggest that he, first, proposes his own amendments and then gives us an opportunity to respond to them.
The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): My Lords, I should be happy to follow that proposal for the convenience of the House. The noble Lord, Lord Clement-Jones, brought to our attention in

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Committee reservations about the quality of care provided to private patients by call-out doctors, who were contacted by phoning an advertised number. I said then that I would take the matter away and reconsider it.
I thank the noble Lord for raising these concerns. I agree with him that such doctor call-out services should be regulated. Therefore, we have brought forward Amendment No. 2, which introduces a new category to be regulated—independent medical agencies. This will require call-out doctors to be regulated by the commission. Amendments Nos. 4, 10, 31, 32, 154 and 155 are consequential to the introduction of this new provision.
In proposing Amendment No. 2, perhaps I may also say that I believe it would be wrong to think only about the services that are being provided at present; indeed, as the noble Lord, Lord Clement-Jones, said in Committee, we also need to consider the future, as healthcare provision is developing at such a rapid pace. New technologies, such as telecare and telemedicines, may have a very profound impact on the way that illnesses are diagnosed and services delivered in the future. Those technological developments will, in themselves, have an impact on the role of healthcare practitioners and on decisions about where relevant healthcare services can be delivered most appropriately to patients.
We must ensure that the national care standards commission is in a position to react and keep pace with those changes. We have, therefore, brought forward Amendment N a. 51 to enable the scope of the independent healthcare regulated by the commission to be extended by regulation, if and when necessary in the future. As the noble Lord, Lord Clement-Jones, pointed out in Committee, the provision of healthcare is changing. So Amendment No. 51, which will give the commission this flexibility, is important.
Lord Clement-Jones: My Lords, I should like to thank the Minister briefly for both those amendments, especially for Amendment No. 2. It was most helpful of the Consumers' Association to point out such an important lacuna in the Bill. I am extremely grateful to the Minister not only for responding by way of that amendment but also for taking it a step further and, in a sense, looking beyond that as to what other flexibilities may be required in the Bill.
Lord Peston: My Lords, before my noble friend the Minister replies to the interesting queries raised by the noble Earl, Lord Howe, I have one point to raise. It is possible that I have misread the second paragraph of Amendment No. 2, but it does not seem grammatically correct. I cannot quite make sense of it. It may be because I am no good at reading legislation and, indeed, that any lawyer would make perfectly good sense of it; but there is either an "it" missing, or something similar. In any event, the sentence starts with the word "but", which I believe to be unacceptable.
Lord Hunt of Kings Heath: My Lords, I would never dare to suggest that my noble friend cannot read legislation appropriately. I am not sure about the grammar, but if we are talking about an establishment within which services are provided by medical practitioners in pursuance of the National Health Service Act 1977, it cannot be defined as an "independent clinic". My noble friend's point actually takes us on to the issues raised by the noble Earl, Lord Howe, with which I shall now deal.
The noble Earl is right in both the suggestions that he made. He has proposed that the definition of "independent clinic" in Clause 2 should be amended so that it will exclude establishments in which the majority of services are NHS services. He then posed the probing question in that respect. In response, I can tell the noble Lord that the independent healthcare provisions of the Bill are built on the fundamental principle that it will not be the commission's task to be concerned with NHS services. Providers of NHS services will come under the separate arrangements specifically introduced to provide quality assurance in the NHS. Therefore, clinics that provide any NHS service will come under the NHS arrangements, and not under the national care standards commission.
We believe that it would be unnecessary and, indeed, that it would amount to over-regulation to require doctors who have to comply with NHS arrangements to be regulated also by the commission. Perhaps I may point out that the noble Earl's question relates to the issue of the majority of services. It would be difficult to keep track of doctors' practices in order to monitor the 50/50 split. However, I understand that the noble Earl raised the matter more as a probing amendment than anything else.
On similar lines the noble Earl has tabled an amendment to the definition of "independent hospital" in Clause 2, the effect of which would be to include in the definition a non-NHS hospital situated on land owned by the NHS. We see no need for this amendment. Clause 2, as currently drafted, provides that any non-NHS hospital that satisfies any of the other conditions in Clause 2, regardless as to whether it is situated on land owned by the NHS, comes within the definition of "independent hospital" and will be regulated by the national care standards commission.
Earl Howe: My Lords, first of all I thank the Minister for his clear and full explanation of the government amendments, which I welcome. I take this opportunity to thank him for writing to me so comprehensively and on a number of occasions since the Committee stage to explain the meaning and purport of all the government amendments that we shall consider today. That was helpful and has certainly eased my task considerably.
I turn to the two amendments in the group that I have tabled. As I said earlier, they were intended as probing amendments. However, the replies that the Minister has given are unequivocal. Both I and the BMA will be extremely grateful for that. It is always reassuring to find that there is no ambiguity in

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legislation. It is as well that we should spot such potential ambiguities as they arise. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hunt of Kings Heathmoved Amendment No. 2:
Page 2, line 34, leave out from ("provided") to end of line 35 and insert ("by medical practitioners (whether or not any services are also provided for the purposes of the establishment elsewhere).
But an establishment in which, or for the purposes of which, services are provided by medical practitioners in pursuance of the National Health Service Act 1977 is not an independent clinic.
(4A) "Independent medical agency" means an undertaking (not being an independent clinic) which consists of or includes the provision of services by medical practitioners.
But if any of the services are provided for the purposes of an independent clinic, or by medical practitioners in pursuance of the National Health Service Act 1977, it is not an independent medical agency.").
On Question, amendment agreed to.
[Amendment No. 3 not moved.]
Lord Hunt of Kings Heathmoved Amendment No. 4:
Page 3, line 7, at end insert—
("( ) except any description of undertaking from the definition in subsection (4A);").
On Question, amendment agreed to.
Clause 3 [Care homes]:
Lord Rixmoved Amendment No. 5:
Page 3, line 13, leave out ("suffering from illness") and insert ("ill").
The noble Lord said: My Lords, during Committee stage of this Bill I made the case for removing the word "suffering" from its association with the basic definition of terms such as "disability" on the grounds that it is both negative, and in many cases inaccurate. A number of your Lordships supported my suggestion for the same reason and for reasons of linguistic economy.
In the interests of linguistic economy, I shall keep my comments brief. I am delighted that the Government have already indicated that they are minded to accept my Amendments Nos. 5, 6 and 7 in relation to all three definitions in Clause 3. It demonstrates that the law can be modernised and used in more subtle and accurate ways. I beg to move.
Lord Addington: My Lords, I congratulate the noble Lord on having done away with suffering.
Lord Hunt of Kings Heath: My Lords, I am most grateful to the noble Lord, Lord Rix, for proposing these amendments. As he has indicated, I am pleased to accept them.
On Question, amendment agreed to.
Lord Rixmoved Amendments Nos. 6 and 7:
Page 3, line 14, leave out ("suffering from disability or infirmity") and insert ("who are disabled or infirm").
Page 3, line 15, leave out ("suffering from dependence") and insert ("dependent").
On Question, amendments agreed to.
Clause 4 [Other basic definitions]:
Lord Rixmoved Amendment No. 8:
Page 3, line 41, at end insert—
("( ) "Day Services" means any centres or other facilities for daytime training or occupation, including arrangements for supporting people using facilities generally available to members of the public, funded or provided, directly or indirectly, by a public authority for the use of persons over pension age or persons with a physical or mental disability.").
The noble Lord said: My Lords, I am dazed with expressions of gratitude! I speak to Amendment No. 8, which is grouped with Amendments Nos. 9 and 67. Amendment No. 8 will be familiar to noble Lords who braved the Care Standards Bill in purging the excesses of Christmas! As we are now approaching Easter, I am sure that your Lordships will not mind if I recap briefly.
This amendment seeks to include day services within the range of provisions regulated and inspected by the new commission for care standards. It is, quite frankly, absurd to legislate to protect the interests of vulnerable children and adults and then create exceptions based on where that care is provided. This is no minor exception. A substantial number of people with learning disabilities, young and old, spend a significant proportion of their week in the care of day services, and I suspect that the numbers relating to older people generally are also fairly substantial.
In Committee the Minister advised the Chamber that a power exists in the Bill to bring in day services at a later date. He also said that the omission of day services relates to the practical question of what can sensibly be undertaken by the commission. Today I urge the Minister to accept that practical challenge and clearly direct the commission to take responsibility at the earliest opportunity for care standards in day services for children and adults.
I am aware that from the outset staff working in day centres will be covered by the new general social care council provisions, and that is indeed welcome. However, I should be grateful if the Minister would clarify the extent of the coverage in this field. I look forward to the Minister's explanation of his Amendment No. 67, which is grouped with mine. Day care staff rarely remain in one geographical location while discharging their duties. These days, day care can cover a wide range of activities including sports, training, visiting libraries and other community resources. One would expect staff to be covered in all these settings, not just within the four walls of the day centre.
One final concern is whether staff undertaking a supervisory role in wider day service settings will be understood as providing "personal care" as the Bill requires. I should be grateful if the Minister could assure me on the breadth of the term "personal care"

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as interpreted in the Bill and as mentioned in his amendment. I hope that the Minister will be able to assure the House that he accepts the need to offer greater protection to the users of day services. I believe my amendment to be well within the spirit of this important piece of legislation. I beg to move.
Lord Clement-Jones: My Lords, I wish to second everything that the noble Lord, Lord Rix, has said. These Benches tabled a similar amendment in Committee, but we thought that it was best to join forces on Report, especially as we thought that the Minister might bring forward his own amendment. I am delighted to see that that is the case. It is clearly not only necessary to have a definition of "day services", but also to have the Minister's assurance of when that regulation will come into effect. We very much hope that in addition to putting forward his amendment, which we believe defines in a perfectly satisfactory way what those day services should be, he will also give us the kind of assurance that we sought in Committee; namely, that that regulation will be introduced as soon as practicable.
Lord Renton: My Lords, I apologise if your Lordships cannot hear me but I shall do my best. The Government are to be congratulated on the fact that in this Bill they have set out in the early clauses rather than the late clauses the ways in which it needs to be interpreted. Up to a point they have done that well. However, they have left out one or two things that ought to have been included, including the definition of "day services", for which the noble Lord, Lord Rix, has now put forward a definition and a useful amendment.
In order to save time, perhaps I may say in passing that the starred amendment of the noble Baroness, Lady Masham, seeks to introduce a definition of a "nursing and ca re staff agency". Both definitions will help with the interpretation of the Bill. I hope that the Government will regard the amendment of the noble Lord, Lord Rix, with which we are now dealing, very sympathetically.
3.30 p.m.
Lord Hunt of Kings Heath: My Lords, I am grateful for the contributions that have been made in regard to this very important question. I am particularly grateful to the noble Lord, Lord Rix, for raising this matter both at Second Reading and in Committee.
Let me begin by speaking to my own amendment to Clause 52, Amendment No. 67. Clause 52, which sets out the definition of a social care worker, allows for regulations to provide for staff in day centres to be defined as social care workers. It was pointed out in Committee that the Bill contained no definition of the term "day centre". My amendment provides that. It covers establishments that provide nursing or personal care on a non-residential basis, wholly or mainly for persons who are or have been ill, are disabled or infirm, or who are or have been dependent on alcohol or drugs.
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I have given careful thought to the issue of regulating day care in the light of the concerns expressed in our earlier debate. As noble Lords will remember, I said then that we must be careful not to overload the commission as it takes on its considerable and vital responsibilities, and that it would therefore not be practical to regulate day care from the start. But I said that the power existed in Clause 40 of the Bill to introduce regulation for further services, such as day care, at a later date.
From today's discussions it would appear that noble Lords—although they understand the necessary constraints that there must be when getting new arrangements off the ground—wish for greater certainty about our intentions for regulation in this area. I can confirm today that we will use the powers in Clause 40 to introduce regulation by the national care standards commission of day centres which provide nursing or personal care.
For the reasons that I gave at Committee stage, it will not be possible to do this from the start of the commission's life, but we will carry out a review within one year of the commission being established to decide the details of exactly how and when the regulatory regime will come into force.
Amendments Nos. 8 and 9 define "day services" more widely than those services that are provided in day centres. I have discussed with the noble Lord, Lord Rix, his concerns that a lot of activities for people with learning disabilities are arranged by day centres but take place outside the centre and may therefore not be covered by the provisions of the Bill. Regulation of dispersed day services not attached to a particular facility and not specific to those receiving care would present significant difficulties in terms of definition and boundaries. However, regulation of day centres will include inspection of fitness of staff and the appropriateness of activities arranged in and through the centre. An additional safeguard will be, as I have said, that day centre staff, as social care workers, will come within the remit of the general social care council.
The definition of "personal care", on which I was asked to comment, is to be found in Clause 97(3) of the Bill, which states:
"In this Act, the expression 'personal care' or 'nursing or personal care' extends to advice and encouragement, but does not include any prescribed activity".
In essence, the term "personal care" is mainly intended to cover assistance with bodily functions—such as washing, feeding, dressing, toileting—and the words "includes assistance with bodily functions" are used in the Registered Homes Act.
The commitment I have given today means that for the first time there is a clear guarantee that day centres will be subject to a system of regulation and inspection to ensure proper standards of care and protection. In the light of that commitment, I hope that noble Lords will feel able to withdraw their amendments.
Lord Renton: My Lords, before the Minister, sits down, perhaps I may be allowed to mention that, when it comes to the interpretation of the Bill, the undertaking to put something, if necessary, into regulations is nothing like as useful as including the definition in Clause 4, which the noble Lord, Lord Rix, wishes to do. From that rather important point of view, I hope that the Government will accept the amendment after all.
Lord Rix: My Lords, I was waiting for a response from the Minister to the noble Lord, Lord Renton. I, too, have some queries. In regard to the review the Minister has promised—which we obviously welcome—how long will that take? If the review takes place within a year, will its findings be known perhaps three years later? Will there be a time limit on that? And, following on from the point made by the noble Lord, Lord Renton, I should be very grateful to know whether it is possible to place that firm commitment either in regulations now or on the face of the Bill.
The Minister said that day centre staff will be monitored in their activities. I presume that means their activities outside the building.
Baroness Barker: My Lords, on the assumption that the Minister has not sat down—
Lord Burlison: My Lords, it is out of order for the noble Baroness to speak now.
Lord Hunts of Kings Heath: My Lords, I listened with great interest to the noble Lord, Lord Renton. In relation to the term "day centre", my amendment ensures that the general social care council will regulate establishments that provide nursing or personal care on a non-residential basis, wholly or mainly for persons who are or have been ill, are disabled or infirm, or who are or have been dependent on alcohol or drugs. I hope that is helpful to the House.
So far as concerns the question of when the review will take place and how long afterwards would any necessary action be taken, I am not in a position to respond to the noble Lord, Lord Rix, on that matter. But the fact that we have set a date for the review to be undertaken one year after the establishment of the commission is a sign of our commitment to wanting that to happen. We share the views of noble Lords about the importance of this matter.
Lord Rix: My Lords, in view of the Minister's gesture of goodwill towards the review and the suggestion—if not the promise—that the findings of the review will be promulgated not too long after the one year is up, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Masham of Iltonmoved Amendment No. 8A:
Page 3, line 41, at end insert—
("( ) "Nursing and care staff agency" means any employment bureau supplying nurses in any part of the Register of the United Kingdom Central Council for Nursing, Midwifery and Health Visiting.")
The noble Baroness said: My Lords, in moving Amendment No. 8A and in speaking to Amendments Nos. 10A and 138, I declare an interest as I have to use various nursing agencies to get help for my husband, who has a selection of serious medical conditions. There are not enough nurses available for people needing nursing care in their own homes, in nursing homes and in our hospitals. Because of this it is easy for people who may put patients at risk to get employment. Agencies can be very stretched when such a shortage exists.
A nurse who has been dismissed from a hospital trust for misconduct may be taken on by an agency which may not bother to check the references. Because of being a qualified nurse, such a person might be put in charge of the drugs cupboard and given the keys. By the law of averages, there will be agency nurses who will have serious problems of personality or addiction. Nothing can ever be foolproof. But the registration of nurses' agencies could help to provide safer, better standards for vulnerable patients.
Nurses' agencies supply qualified nurses to many thousands of elderly or disabled people at home, as well as to our National Health Service hospitals, nursing homes and so on. This amendment would give powers for the regulation of nurses' agencies to the national care standards commission which will already be responsible for personal domiciliary care services and for private and voluntary healthcare under this Bill. It will do that by creating a definition of a "nurses' agency" parallel to the definitions of domiciliary agencies and other services to be regulated.
The Care Standards Bill, as currently drafted, repeals the Nurses Agencies Act (NAA) and extends to nurses the Employment Agencies Act (EAA) which would then be the only regulation of the sector. Those proposals are inadequate and betray the policy intention behind the Care Standards Bill to assure minimum standards of care and public protection.
Damage to health for vulnerable people at home or in hospital cannot be set right by reactive enforcement. Not all types of temporary worker present these risks. The difference is that nobody dies from accountancy. This amendment is related to the amendment of the noble Earl, Lord Howe, to Clause 91. I believe that active regulation of nurses' agencies is essential. The existing regulation for nurses' agencies is not ideal, but if this amendment to Clause 4 is not passed, I shall support the amendment of the noble Earl, Lord Howe, to remove Clause 91 and retain the Nurses Agencies Act 1957. However, if this amendment is accepted, Clause 91 could stay.
A key purpose of the national care standards commission is to reassure members of the public that care services are of requisite standard; for example,

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people will be advised to purchase personal care only through a registered domiciliary agency. It is illogical to deny this safeguard and reassurance to people seeking higher dependency care at home. Many people already think that nursing agencies are fully registered. All other major types of care service will be subject to actively enforced minimum standards. The proposed new regime will leave nurses' agencies as the only exception. That would mean a missed opportunity which could have dangerous consequences. Services should be required to register with an appropriate authority so that operators can be traced, controlled and excluded where practice falls below standard.
The Employment Agencies Act operates no register. Services should be routinely inspected so that standards are assured in advance of failure or scandal. The Employment Agencies Act is enforced only in response to complaints to the Department of Trade and Industry. Services should be run only by "fit persons" judged against clear criteria of qualifications and conduct.
As regards nurses' agencies, the recruitment and placement of registered nurses should always be carried out under the supervision of a registered nurse who is professionally accountable for his or her own actions. For people buying home nursing, professional assessment and care planning are essential. Daily judgements must be made based on clinical knowledge. That will include infection control, access to drugs, and medical confidentiality.
Nurses are also entitled to professional support from the agencies supplying them. For the national care standards commission to inspect nurses' agencies would be a low-cost measure because most of the businesses concerned also supply domiciliary care. Therefore, inspections can be carried out at the same time.
This amendment is supported by Age Concern, the British Federation of Care Home Proprietors, Care Forum Wales, the Hampshire Care Association, Help the Aged, the Independent Healthcare Association, Mencap, the National Care Homes Association, the UK Central Council for Nursing, Midwifery and Health Visiting, and the United Kingdom Home Care Association. Nurses are not all angels—many are—but all people needing their care are vulnerable and in need of protection before and not after disaster happens. I hope that that will be avoided. I hope that your Lordships, and especially the Minister, will accept this necessary amendment. I beg to move.
3.45 p.m.
Lord Rix: My Lords, I support my noble friend's amendments. If they are accepted, I believe that there will no longer be any necessity to move Amendment No. 138 to Clause 91 in the name of the noble Earl, Lord Howe.
I have no strong views on the legislation under which the supply of agency nurses should be regulated. I wish the Government well in their endeavours to reduce hospital dependency on agency nurses. However, I seek an assurance that regulation will be
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specific to nursing and at least in line with the regulations for the provision of personal carers by domiciliary agencies.
Given that objective, there seems to be a great deal of sense in placing nurse agency activity under the care standards commission alongside domiciliary care agency activities, not least when it may well be, as the noble Baroness has already said, the same agency carrying out the same functions.
The Employment Agencies Act could then bite in an appropriate way and not on the rather dangerous assumption that one commercial activity is much like another. I could just about put up with an agency gardener doing undesirable things to my rose bushes, but I could not put up with an agency nurse doing undesirable things to a member of my family. We should not wave goodbye to the Nurses Agencies Act without an assurance of specific and effective regulation under the care standards commission being there in its place.
I am aware of professional nursing sensitivities at a time when nurses are becoming more like doctors and domiciliary work carers more like nurses. I trust that my noble friend's amendments will tread gently on all sensitivities, protect patients, and commend themselves to the Minister.
Baroness Park of Monmouth: My Lords, I wish to support the amendment of the noble Baroness, for two practical reasons: first, it can do no harm and nothing but good for the good nurses; secondly, I think it might ensure that anyone who is dismissed or disappears from a previous job for having fallen ill will not escape, as so many people do, because they have been given a reference which does not say how bad they are. For all kinds of reasons—for example, being sued in the courts—people often prefer to give very anodyne, if not misleading, references. If there was an official agency to whom they had to give such a reference, they would think more carefully. Incidentally, they would feel much safer.
For both those reasons, among the other much mere important ones, I hope that the House will look upon this amendment with favour.
Lord Renton: My Lords, the noble Baroness, Lady Masham, the noble Lord, Lord Rix, and the noble Baroness, Lady Park, have put forward such strong reasons in favour of the amendment moved by the noble Baroness that it would, in my opinion, be most unwise and unfortunate if the Government were on this occasion, as on the previous occasion regarding the amendment of the noble Lord, Lord Rix, to say that they would like to hold another inquiry and then have a regulation to deal with the matter. That would be most unsuitable and unfortunate. Therefore, on this occasion I hope that the Government will accept the amendment.
Earl Howe: My Lords, I rise to speak to Amendment No. 138 standing in my name, which I had intended as a vehicle for raising exactly the same issues as those raised by the noble Baroness, Lady Masham. I do not

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believe that there is much disagreement in the profession that the Nurses Agencies Act is out of date and merits abolition. The extent to which the Act provides protection is, in practice, extremely limited, but if it is patient protection that we are looking for, as we clearly must, then, as has been said very succinctly already, the Employment Agencies Act, which effectively takes the place of the Nurses Agencies Act under Clause 91, has even less to recommend it. Even with the special requirements proposed for care agencies in the latest draft regulations, the Employment Agencies Act is, in my view, wholly inadequate to ensure the standards of public safety that we should now be insisting upon, and which the Bill seeks to promote.
First, under the Employment Agencies Act, there is no register of agencies, so there is no knowledge of which businesses exist to provide a service. Secondly, as the noble Baroness emphasised, inspection and enforcement under the Act occurs only when the DTI receives complaints. When the health and well-being of sick and vulnerable people are at stake I do question whether a reactive as opposed to a proactive enforcement system is appropriate.
Thirdly, the Employment Agencies Act regulations contain no requirement at all for a nurse to supervise recruitment and placement, which means that agencies can operate with an inadequate understanding of health issues and with no professional accountability in any meaningful sense. There are no rules on fit persons. The answer, I respectfully suggest, is for the national care standards commission to have delegated powers to register and inspect nurses agencies and for the repeal of the Nurses Agencies Act not to occur until adequate replacement measures are in force.
Perhaps I may just emphasise to the Minister that the issues that I and other noble Lords have just highlighted are far from being theoretical; they are very real. There are some nurses agencies that are not operated as well or as scrupulously as they should be. From a practical standpoint, the additional regulatory role that I have suggested for the commission should not involve it in a great deal of additional work because, as I think the noble Baroness said, most nurses agencies are also domiciliary care agencies in any case. Therefore, it would be a cost-effective and efficient way of doing the job.
The point I would stress to the Minister is that it is not enough to argue, as he did earlier, that proper registration and inspection of nurses agencies are unnecessary because nurses are professional people. Nor do I believe that codes of practice can take the place of an inspection regime that is automatic. It really is not appropriate to treat agencies that deal with people's health in the same way as one treats agencies that supply secretaries. The implications for the user are of a wholly different order.
It is interesting that the Government have tabled amendments which seek to regulate doctors agencies under the national care standards commission. I have no inherent objection to those amendments, but it does seem inconsistent for the commission to regulate
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doctors agencies and not nurses agencies. There are very few doctors agencies compared to the number that place nurses. Furthermore, a small number of doctors, I am advised, are placed through agencies, compared to the huge volume of nurses placed each year.
I look forward to hearing what the Minister has to say, and hope that he can provide some reassurance in relation to the very real concerns that have been expressed from all sides of the House.
Perhaps I may conclude with two specific questions. Can the Minister confirm that one effect of the repeal of the Nurses Agencies Act 1957 will be to classify as agencies nursing banks run by NHS trusts? If so, does he think this desirable, bearing in mind that the nurses employed by the bank system are NHS employees? Secondly, can he confirm that the change will result in additional costs for NHS trusts, which will no longer be able to claim back an element of VAT from the agencies which supply them?
Lord Rea: My Lords, having listened to the noble Baroness and other noble Lords who have spoken to this amendment, I feel this is a necessary and important amendment. I was particularly impressed with the long list of extremely reputable national agencies that she read out which support the amendment, including the UKCC. I did not hear the Royal College of Nursing mentioned among that group. I should be interested to know why. My noble friend may not be able to accept the amendment as it stands, but I feel that he will be sympathetic to its spirit, and I should be grateful to hear how the Government intend to deal with this important issue.
Lord Jenkin of Roding: My Lords, I, too, support the amendment. I totally support the arguments advanced by my noble friend Lord Howe from the Opposition Front Bench. I would add only one other point. Looking around the House I think I am the only noble Lord who has held the position both of Secretary of State for Health and Social Services and Secretary of State for Industry. What struck me, as I moved from one department to the other, was how totally different they are: different in tradition; different in culture; different in attitude; and with a very considerable difference in experience and skills.
I shall not weary the House now with some of my experiences. However, in dealing with the pharmaceutical industry when I was at the Department of Industry, it was perfectly clear that it knew nothing about the pharmaceutical industry because it was sponsored in fact by the Department of Health. I find bizarre this proposal that nurses agencies should be handed to the tender care of the DTI. There is nobody in that department who can deal with them. I say that on the basis of past experience. They may have recruited all kinds of experts in nurses agencies in the past few years, but somehow I doubt it. It is such a totally different field from anything that the Department of Trade and Industry will have dealt with hitherto. Presumably, that department will be the one that will need to

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make the regulations and to supervise the administration of the sections of the Act. I find that incredible.
It may well be—and I have no particular expertise in the field—that, as my noble friend has said from the Front Bench, the Nurses Agencies Act 1957 is now substantially in need of modernisation. It needs to be brought up to crate to deal with the profession and its activities and with agency activities as they are today and will be over the next few years.
I cannot believe it is right to put these matters under the control of the same department as controls the supply of secretaries, accountants, consultants and so on to industry a rid commerce. I say to the Minister that he cannot accept that position. The amendment may or may not be right—there are further stages of the Bill—but what the Government propose is not the right answer. The amendment at least raises the issue and would be one way forward. I hope that the Minister will be able to give us some comfort on this issue because I honestly do not believe that the Government's present proposals are viable.
4 p.m.
Baroness Emerton: My Lords, I rise to support the amendment of the noble Baroness, Lady Masham, and to agree with of her noble Lords who have supported the amendment. The Royal College of Nursing supports the amendment. It has 1,000 managers represented on its care agencies forum. They would like the Minister to take account of these proposals. It is recognised that the Nurses Agencies Act 1957 is not very thorough. However, the RCN would be concerned if responsibility transferred to the DTI. The Royal College of Nursing, and certainly I as a nurse, would wish the Minister to take account of what has been said and accept the amendment.
Lord Swinfen: My Lords, I can think of no good reason, except possibly its drafting, why the Government should refuse to accept the amendment. Nurses have a wide range of skills. As my noble friend Lord Howe said, it is essential that they should be properly recruited to a nursing agency by someone who understands nurses and is qualified as a nurse. When sending a nurse to a private house it is essential that that nurse has the skills and experience necessary to deal with the patient that she or he is going to look after.
Nurse training today is not as general in scope as it used to be. Very often, nurses are trained in one specific field rather than as general nurses, as they were in the past. It would be disastrous to send a nurse who had been trained to look after geriatrics to look after a very young person or a child in their own home, as might happen. That would be chaotic. I strongly support the amendment.
Lord Clement-Jones: My Lords, I wish briefly to offer the strong support of these Benches to the amendrnents— particularly Amendments Nos. 8A and 10A. It is common ground between all speakers that the current system is not perfect. I do not think that
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anyone is making that claim. I was extremely interested to hear what the noble Lord, Lord Jenkin, had to say. I can think of few government departments less suitable for this role than the DTI. Perhaps the Treasury would be the best depository. It is extraordinary that the DTI should he suggested as the department to be responsible for governing the nursing agencies in these circumstances.
It is clear that we should bring the provisions of the Nurses Agencies Act into line with those for doctors agencies. After all, the Minister has made concessions in that area only today. We should seize the opportunity of this Bill to bring nurses agencies under the national care standards commission. Noble Lords on these Benches, in line with all other noble Lords who have spoken, strongly urge the Minister to do just that.
Baroness Gardner of Parkes: My Lords, I rise to add my comments on the amendment. I would have added my name to it, but by the time I came off the Woolsack last night and telephoned to do so, it had already gone to print. But I strongly support the amendment.
I have received a briefing from the Royal College of Nursing. Yesterday afternoon it attended a meeting with us and set out the points made by the noble Baroness, Lady Emerton. The RCN is quite aware that something needs to be done about the Nurses Agencies Act 1957 but it is clear that moving responsibility over to the DTI is no answer.
I have no interest to declare, but many years ago I ran an employment agency. When at that time one applied for an employment agency licence, one had to sign an undertaking that one would not attempt to deal with nursing staff of any kind. It was always clearly recognised that nurses required a type of procedure and regulation different from those applicable to other employment agencies. To put the two together now, all these many years later, would be a retrograde step.
At present, local authorities carry out inspection. Where that works well, it works very well. But in some areas it does not work at all well. Inspection is patchy over the whole country. The care standards agency could still use local authorities to carry out much of the day-to-day inspection. That would not throw a great deal of additional work on to the care standards agency, but it would mean that control was with the body that properly understood the situation. This is a very good amendment and I support it.
Lord Hunt of Kings Heath: My Lords, I certainly recognise the strength of feeling on this issue in your Lordships' House. I also recollect that due to the lateness of the hour in Committee we were not able to debate this matter thoroughly.
Noble Lords are agreed that the current system is not operating very effectively. In practice, it offers little protection for those receiving care from nurses supplied by agencies and little protection for the nurses themselves. The evidence seems to be that the Act is inconsistently applied throughout the country and is

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open to wide interpretation. The aim of the Government's proposals was intended to create a level playing field for nurses agencies. Bringing them under the Employment Agencies Act would therefore mean that they would be regulated under the same system as all other employment agencies.
Noble Lords have expressed concern about the repeal of the Nurses Agencies Act. It has been said that we are removing a system of inspection and licensing. Under the proposals before the House, nurses agencies would, like all other employment agencies, come under the remit of the Employment Agencies Standards Inspectorate. The inspectorate responds to concerns and complaints about agencies. That enables it to target its efforts where problems have been identified. The inspectorate also has the powers to carry out spot checks on agencies. It has strong enforcement powers and can prosecute agencies that do not comply with regulations. Prosecution can also result in fines being imposed. The DTI, which has not come in for universal approval in this area, can also seek to prohibit agencies from operating for up to 10 years.
The Employment Agencies Act provides a much tougher framework of protection for agency nurses and those they care for than in practice we have at the moment. Although the noble Earl, Lord Howe, described that framework of protection as being wholly inadequate, I remind him that it was the previous government who introduced that legislation. I believe that the framework is sufficient to provide the safeguards that people rightly require.
I turn to the specific amendment moved by the noble Baroness, Lady Masham.
Lord Jenkin of Roding: My Lords, the noble Lord has certainly succeeded in confusing me. We are all agreed that the Nurses Agencies Act is not working very well. However, if, when he referred to legislation introduced by another government—of which I might well have been member—he intended to refer to the Employment Agencies Act, that was not entirely clear from what he said.
Lord Hunt of Kings Heath: My Lords, I apologise to noble Lords. It was my intention to refer to the Employment Agencies Act.
Baroness Gardner of Parkes: My Lords, can the Minister also make it clear that currently the Employment Agencies Act does not cover nurses agencies?
Lord Hunt of Kings Heath: My Lords, I can. I referred to the inadequacies of the legislation that now applies to nurses agencies. All noble Lords agree that that is unsatisfactory. I refer to the potential of the Employment Agencies Act, if it applied to nurses agencies, compared with the current situation which all noble Lords agree is unsatisfactory.
I turn to the specific amendment moved by the noble Baroness, Lady Masham, and spoken to by the noble Lord, Lord Rix. We have carefully considered the
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option of requiring nurses agencies to be regulated by the commission, but there is a genuine issue as to whether nurses agencies should be treated differently from agencies that supply other healthcare professionals. We must also take into account the very strong regulatory framework within which nurses are regulated through the UKCC, which itself provides the public with a great deal of comfort and safeguards.
Baroness Gardner of Parkes: My Lords, the UKCC attended the meeting yesterday and made clear its understanding that at the moment the whole system was in the melting pot. Can the Minister confirm that? Is the noble Lord aware that the UKCC also supports this amendment?
Lord Hunt of Kings Heath: My Lords, various changes are proposed to the regulation of nurses alongside the regulation of other professional staff within the National Health Service. As to the successor body to the UKCC, I can assure noble Lords that the regulation of that profession will be no less robust than at present.
I make two other points in relation to how the Employment Agencies Act would operate if it embraced agency nurses. First, I assure noble Lords that we would closely monitor and keep under review the new arrangements so that if problems arose we could take further action. For example, under the Employment Agencies Act we would have power to make regulations directed specifically at nurses agencies if the need arose.
None the less, having intimated to noble Lords the reasons why the Government consider that to embrace nurses agencies within the Employment Agencies Act would be a better option than the present situation, we recognise the strength of feeling expressed this afternoon. With the leave of the House, I shall reflect on the matter between now and Third Reading. On that basis I ask the noble Baroness, Lady Masham, to withdraw her amendment. I do not disagree with the concerns expressed today by noble Lords. It is important to ensure that, whatever route is adopted, nurses agencies are regulated effectively. I believe that what we propose is satisfactory, but none the less I should like to consider the matter again.
4.15 p.m.
Earl Howe: My Lords, before the noble Lord sits down, is he able to answer the specific queries that I raised about nurses banks and VAT reclaims for NHS trusts?
Lord Hunt of Kings Heath: My Lords, that is a matter that I should like to consider. My understanding is that VAT would have minimal effect. If NHS nurse banks were to be embraced within the Employment Agencies Act, we would look at ways in which they could be exempted from it.
Baroness Masham of Ilton: My Lords, I thank all those who have supported the amendment. I do not want fragmentation; I am a supporter of joined-up

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government. I believe that to leave the largest group of employees—nurses—out of the Care Standards Bill is wrong. However, I am encouraged by the Minister's response. The noble Lord has assured the House that he will look at rite matter again. The amendment has received a good deal of support, and I hope that the Minister will take note of it. I shall stay on the noble Lord's back. It would be better if the Government tabled their own amendment. We do not want nurses to be left out of the Bill because that would cause fragmentation. If the noble Lord does not table an amendment at Third Reading, I shall do so. On that basis, I beg lease to withdraw Amendment No. 8A.
Amendment, by leave, withdrawn.
[Amendment No. 9 not moved.]
Lord Hunt of Kings Heathmoved Amendment No. 10:
Page 4, line 22, after second ("to") insert ("an independent medical agency,").
On Question, amendment agreed to.
[Amendment No. 10A not moved.]
Clause 6 [National Care Standards Commission]:
Baroness Davidmoved Amendment No. 11:
Page 4, line 40, at end insert—
("( )In the exercise of its functions the Commission shall give due consideration to the views of children affected by the provisions of this Act.").
The noble Baroness said: My Lords, Amendment No. 11 is designed to ensure that the national care standards commission considers the wishes and feelings of children. I moved exactly the same amendment at Committee stage. I table the same amendment today because I am not entirely satisfied with the Minister's response. I hope that I shall receive a better reply today. The Children Act requires both the courts in private family cases and local authorities in regard to looked-after children to give due consideration to the wishes and feelings of children affected by their decision-making. It is, therefore, consistent under domestic law that the national care standards commission should be placed under a similar duty.
The consideration of the views of children is also a requirement of Article 12 of the UN Convention on the Rights of the Child, which was ratified by the UK after the Children Act was enacted. The Government are due to report to the UN-based Committee on the Rights of the Child and would gain some credit if they had made some effort to implement Article 12 since they last reported. By this amendment the commission is not bound to follow the views of children but simply to give them due consideration. The purpose of the amendment is simply to ensure that the commission keeps in touch with the view of those it tries to help. The Government have continually urged local authorities to do that under the Quality Protects programme, and it is very difficult to see how they should not apply the same principles to the national care standards commission.
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At Committee stage the Minister appeared possibly to misunderstand the point of the amendment. I pointed out to the Minister, that in dealing with the convention, he had referred to Article 4 and not Article 12 to which I had referred. He said:
"I assure the Committee that children's views will be at the forefront of the regulatory process, including inspection. Ensuring that children are listened to will be a crucial function of the children's rights director who will be a key senior appointment in the commission".—[Official Report, 10/1/00; col. 460.]
This possibly implies that the children's rights director will check that local authorities have listened to children, as is their statutory duty under the Children Act. However, the point of the amendment is that the work of the commission itself should be informed by the views of children, not just local authorities. So, for example, if the children's rights director were to develop standards relating to foster care or care in private health establishments, he or she would be obliged to ensure that the views of children in those placements were taken into account.
Clearly, the Government should practise what they preach under their Quality Protects programme which stresses the importance of children's participation. If local authorities under law and guidance are required to listen to children, so should inspection and regulatory bodies, in particular a body establishing a post called "children's rights director". Every children's organisation that I know of is keen that the views of children should be heard. I shall be very surprised if the Government cannot give a more favourable response than they did last time. I beg to move.
Lord Clement-Jones: My Lords, the noble Baroness has put the case eloquently for the amendment to which I have added my name. I wish to support strongly what she said. It is a question of consistency. If central government impose on local government duties through the Quality Protects programme then, through the commission, the Government should ensure that they adopt the same standard of consultation, and that they should have direct consultation. I do not think that it is too much to ask that the commission has that explicit duty. I ask the Minister to consider the amendment favourably.
Lord Jenkin of Roding: My Lords, I add my support to the noble Baroness's amendment for one reason. Over the years, it has been borne in on me that in homes and foster families one is dealing with some extremely disturbed and difficult children. One has the utmost admiration for the people who undertake the job of bringing them up and trying to turn them into responsible adults. One of the things one has learned is that if one treats people as responsible beings, listen to them and treat their views with respect, and make clear that that is one's attitude, one is likely to have a better response than if they are treated in what has been in some circles the rather more traditional way, saying, "Yes, we look after them, but the adults will decide what happens".

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Having a specific obligation to give due consideration to the views of children, as the amendment provides, means that the people concerned will have to talk to the children. I have reread the speech that the Minister made in Committee. I recognise entirely the difficulty that the noble Baroness had with it. Of course all the things that we say, and the Minister said, are supposed to happen. But why cannot there be a specific requirement in the Bill—something to which people can point and say, "This is what Parliament has asked you to do. Please will you now do it"? I am sure that for those inspecting and those who have the responsibilities of the care of children it will make the task easier rather than more difficult.
Lord Hunt of Kings Heath: My Lords, there can be no doubt that listening to children helps to protect them from harm and low expectations. If children can speak up and be heard, abuse is less likely to happen. That is the lesson from so many inquiry reports that we have learned over the past few years. Children and young people demand and need to have a voice in all decisions taken about them—not just on the big issues such as education, health and their placement, but on the day-to-day issues for them such as pocket money, bedtimes, meals and so on.
The Government are committed to listening to children and to learning the lessons of past inquiries which have identified many of these concerns. Listening to children was a priority area for expenditure under year one of the Quality Protects children's special grant. We have also been organising a series of regional events at which Ministers, senior members of the Department of Health and other interested parties will be listening directly and talking to looked-after children. We are working with the Department for Culture, Media and Sport, the Association of Directors of Social Services and a small project team of young people to plan these events, both now and in the future.
Perhaps I may say to my noble friend Lady David, that I am, of course, mindful of Article 12 of the UN Convention on the Rights of the Child. I have no disagreement with her that listening to children will be a crucial part of the national care standards commission's role. Ensuring that children's views are heard will be a key function of the children's rights director as a senior appointment within the commission. In the White Paper, Modernising Social Services, where the role of the children's rights director was set out, it was envisaged that the children's rights director would help the commission to give full and effective coverage of children's services and children's rights in its statutory regulatory responsibilities and in the reports it makes on the discharge of those responsibilities, ensuring that the views of children placed in the facilities and services regulated by the national care standards commission are given proper weight in the regulatory task, and report directly to the chief inspector of the Social Services Inspectorate any significant evidence relevant to the rights and safety of
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children gained from the commission's regulation and assessment of services for children which might help local authorities or other providers improve the services and support to children.
Building on that, there is no doubt that the commission will need to give due consideration to the views of all users of regulated services if it is to fulfil its role properly. But I am not convinced that we need the proposed amendment on the face of the Bill to achieve that. However, I assure my noble friend that we shall issue directions to the commission as soon as we can requiring it to give due consideration to the views of all users of regulated services, including children.
I hope that on that basis my noble friend will agree to withdraw her amendment.
Baroness David: My Lords, I thank the noble Lords, Lord Clement-Jones, and Lord Jenkin, for their extremely helpful support. Everything seemed to be going my way at the start of the Minister's speech. He seemed to recognise the need. I was hopeful for a really favourable response. I have received a half-favourable response, I think. He is not willing to put these simple two lines on the face of the Bill, but there will be directions. I am not entirely happy with that, but I shall be willing to read again what he said and see what comfort I can gain from it. I do not guarantee not to come back to this issue at the final stage of the Bill. For now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Clement-Jonesmoved Amendment No. 12:
Page 4, line 41, at end insert—
("(4) Regulations under this section shall correspond to section 23(2) and section 23(3) of the Health Act 1999 with respect to the disclosure of confidential information that relates to and identifies a living individual.").
The noble Lord said: The amendment seeks to ensure that the national care standards commission, while carrying out its functions, provides the same standard of safeguard as regards identification for patients in the independent healthcare sector as those provided by the Commission for Health Improvement which are contained in the Health Act 1999. I make no bones about it. We felt that the Minister's response to a similar amendment tabled in Committee was unsatisfactory.
Health information about patients should not be disclosed without proper justification. Personal health information is collected for the provision of care to individual patients, and generally should not be used for other purposes without patients' permission. Information may be used without consent only in exceptional circumstances; for example, where disclosure is essential to avoid a risk of death or serious harm to people and it is not possible to obtain consent. The grounds for disclosure must be of sufficient severity to justify a breach of the duty of confidentiality.
When this amendment was previously moved and withdrawn in Committee, the Minister suggested that it was unnecessary, given that the national care

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standards commission would be subject to the Data Protection Act. However, the amendment seeks to place the national care standards commission on a par with the Commission for Health Improvement, which is, after all, also subject to the data protection legislation and thereby would provide the public with the same safeguards from identification, regardless of whether they are NHS or independent healthcare patients. I believe that the principle of parity of treatment for confidential information purposes is of great importance.
In closing, I ask the Minister whether the Government consider that the Data Protection Act is sufficient to safeguard from identification patients in the independent healthcare sector, and what additional protection will be provided for patients of NHS and primary care trusts by regulations under Section 23 of the Health Act 1999. What is sauce for the goose must be sauce for the gander. Can the Minister advise whether the remit for the recently established National Confidentiality and Security Advisory Board, which was announced on 15th March this year, will include promoting best practice on the confidentiality of patient information in the independent sector? If not, why will NHS patients receive the benefit of regulations and the advisory hoard, while patients in the independent sector must hope purely and simply that the Data Protection Act is adhered to? I look forward to the Minister's reply. I beg to move.
4.30 p.m.
Earl Howe: My Lords, I believe that the noble Lord, Lord Clement-Jones, has made the case for this amendment most succinctly. I simply do not understand why the national care standards commission should not be subject to exactly the same legal duties with regard to patient confidentiality as apply to the Commission for Health Improvement. I support every thing that he said.
Lord Hunt of Kings Heath: My Lords, of course, I accept the noble Lord's concerns and recognise that we had an interesting debate on this matter in Committee. We believe that the amendment is not necessary. It is our view that the commission's right of access to confidential information is already more restricted than that of the Commission for Health Improvement. I say immediately that I believe that all noble Lords will share concerns about the confidentiality of medical records. I am sorry that I was not able to reassure noble Lords on that point in Committee.
I deal, first, with that part of the amendment which relates to Section 23(2) of the Health Act. As the noble Lord explained today, the purpose of that section is to safeguard the confidentiality of personal health information and to ensure that the Commission for Health Improvement can access such information only in limited circumstances: first, where the information is disclosed to the Commission for Health Improvement in a form in which the identity of the individual concerned cannot be ascertained; secondly, where the individual has given his consent; thirdly,
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where the individual cannot be traced; and, fourthly, where the Commission for Health Improvement is carrying out an investigation and considers that there is a serious risk to the health and safety of patients.
If one compares those with the powers of the national care standards commission, one will see that they are much more limited. Clause 29(4) and (5) of the Bill provide that medical records can be inspected only by a medical practitioner or a registered nurse and, even then, only with the consent of the person concerned.
Perhaps I may clarify one further point: Clause 29(1) allows the commission to require any information relating to the establishment or agency which it considers necessary or expedient for the exercise of its functions. However, I assure noble Lords that the powers in subsection (1) could certainly not be used to override the provisions in subsections (4) and (5) regarding the need to obtain consent in relation to medical records.
I hope that I have managed to reassure noble Lords that in relation to the Commission for Health Improvement access to medical records is more restricted under this Bill than it is under the Health Act. I should add that the amendment would also prevent the Government making regulations which would allow the commission to obtain information where disclosure of that information is prohibited by other legislation. This Bill contains no power which would allow the Government to make such regulations.
Therefore, I believe that the amendment is unnecessary. Clause 6 allows the Secretary of State to issue directions to the commission only in relation to the exercise of its functions. Therefore, I assure the House that the Government could not legitimately use that direction-making power to direct the commission to access information which is protected from disclosure by other legislation.
Lord Clement-Jones: My Lords, I thank the Minister for that reply. It seems to veer between "would not be used" (that is, a matter of practice) versus "could not be used" (that is, a matter of law). I am not entirely clear from the Minister's response whether he is saying that Clause 29(1) would not be used—that is, would be governed by subsections (4) and (5)—or whether he is saying that in law it would be unlawful for the commission to access that confidential information.
Lord Hunt of Kings Heath: My Lords, that is the advice that I have received. It is my understanding that in law it could not be used in that way.
Lord Clement-Jones: My Lords, that clarification is helpful. However, I believe that we should look at the Minister's words in Hansard and consider them. This is an important issue and the legal technicalities involved in Clause 29 clearly are of great importance. If the Minister is advised correctly that that confidential information cannot be used except in circumstances as set out in subsections (4) and (5),

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I believe that that would be a satisfactory situation. However, if there is an element of discretion and it is a case of trusting to practice, I believe that that would not be satisfactory. It may well be that if that is so, we shall want to return to the matter at a later stage. In the mean time, however, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Clement-Jonesmoved Amendment No. 13:
After Clause 6, insert the following new clause—
WELSH CARE STANDARDS COMMISSION
(" . There shall be a body corporate, to be known as the Welsh Care Standards Commission, which shall exercise in relation to Wales functions conferred on it by the Assembly in relation to services provided by persons registered under Part II of this Act.").
The noble Lord said: My Lords, I feel somewhat like someone at the front of a juggernaut. Faced with all the amendments which relate to Wales, Amendment No. 13 is small beer indeed compared with what I know that the Minister is due to put forward.
As a convinced devolutionist, far be it from me to expect the Minister to determine what will happen in Wales. However, I believe that a number of parties involved in this matter are seeking some reassurance from the Minister regarding whether or not a separate standards commission is to be set up in Wales and, if so, what its form will be.
I understand clearly that in his own amendment the Minister is attempting to place the powers of the National Assembly for Wales on the same footing as those for the Department of Health. I believe that in Amendment No. 13 the points at issue are: will there be a care standards commission for Wales and what does the Minister believe the practice will be? I believe that a statement from the Minister about his understanding of this point would give some reassurance, particularly to professional bodies which would be involved in implementing the commission. I beg to move.
Lord Roberts of Conwy: My Lords, I have some sympathy with the case put forward by the noble Lord, Lord Clement-Jones, for this new clause which seeks to establish a Welsh care standards commission. As the Bill stands, the registration authority in Wales is to be the National Assembly, which is, of course, a corporate body. Presumably, the Assembly has considered whether it needs a care standards commission and has decided that it does not. Therefore, the question arises as to how Part II of the Bill will be implemented.
I know from conversations with the Minister, the noble Lord, Lord Hunt, that further provisions are to be added to the Bill at a later stage relating to the establishment of a children's commissioner for Wales. I quite understand why those amendments will not be available to your Lordships; namely, that they are the outcome of, or the follow-up to, the publication of the Waterhouse report.
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I hope that we shall have a proper account of the Assembly's deliberations on this particular issue of the care standards commission and that the Minister does not wash his hands of it, as some of his colleagues have been inclined to do as regards other Bills in so far as they relate to Wales. After all, this Parliament is still the primary legislative power and we have a responsibility to ensure that the Assembly, which is not a year old, has the necessary powers to act in the legislation that we provide.
As I understand it, the Assembly must implement Schedule 1, but apart from a reference in paragraph 1 of that schedule to the Welsh council to be established under Clause 51 to deal with social care workers, I can find no cross-reference to Part I, apart from in Clause 8, which refers specifically to charging and training. Therefore, I believe that the noble Lord, Lord Clement-Jones, has done us a service in proposing this new clause.
I press the Minister to tell us whether all this means that the care council for Wales or the Assembly is to take on the responsibilities associated with registration. It is not at all clear. I should be extremely concerned if the Assembly had not yet decided that particular issue. There is certainly a visible vacuum in the Bill in relation to Wales.
4.45 p.m.
Lord Hunt of Kings Heath: My Lords, it is very interesting to have a debate on the situation in Wales. My understanding from the noble Lord, Lord Clement-Jones, is that his amendment is tabled as a probing amendment rather than seeking to constrain the powers of the Welsh Assembly, which I should find to be somewhat at odds with the Liberal Democrat position.
Primary legislation affecting Wales is, of course, the responsibility of the Westminster Parliament; and so the Bill makes specific provision for Wales as well as for England. Indeed, as my forthcoming amendments on Welsh matters will demonstrate, it is taking all of us a little time to work through all the implications of how that operates. The amendments which I shall move are intended to give Wales the tailored provision necessary to those new devolved circumstances.
First, in specific answer to the questions which have been raised, I should say that as a result of the devolution settlement and under the terms of the Government of Wales Act 1998, it is for the National Assembly for Wales to decide how it should organise and fulfil duties such as those to be conferred on it by this Bill.
The National Assembly made the decision that in relation to regulating Part II services, it wishes to undertake those functions itself rather than through a separate care standards commission. It made that decision following a wide-ranging consultation exercise carried out last summer in which two main options were canvassed. The first option was that proposed in the amendment moved by the noble Lord, Lord Clement-Jones; namely, that there should be an independent statutory body to take on the regulatory

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task, similar to the proposal adopted already for England. The second option was for the Assembly to take on those functions itself.
The responses to that consultation gave a two to one majority in favour of the proposal that the Assembly itself should take on the regulatory functions. The National Assembly's all-party Health and Social Services Committee strongly recommended a single all-Wales regulatory body to be set up as part of the Assembly rather than as an independent body.
Following the consultation process and the committee's recommendation, the proposal was agreed by the then First Secretary and it was as a result of that decision that the provisions in the Bill were drafted as they were.
The approach that the Assembly wishes to take provides a different approach for Wales in terms of structures and operational matters but it is entirely consistent with England in terms of the principle, scope and robustness of the regulation. It will be for the National Assembly to make regulations under the terms of the Government of Wales Act to define the detailed arrangements for fulfilling the new regulatory duties. That may involve establishing an executive agency of the Assembly; or the Assembly may prefer to have the regulatory responsibilities carried out within the existing departmental structure. Those decisions are for the Assembly to take.
The current Position is that the National Assembly has taken a decision on its preferred approach in that area. The Bill sets out the overall framework for the new regulatory system and the approach in Wales, therefore, is wholly consistent with that of England. But it must be left to the Welsh Assembly to make the decisions in relation to detailed matters and how the functions are to be delivered.
Lord Roberts of Conwy: My Lords, is the Minister in a position to give us an assurance that the provisions in Clauses 5 and 8 are adequate for the Assembly to perform and carry out its functions as the Minister has stated?
Lord Hunt of Kings Heath: My Lords, it is certainly my understanding that the construction of the Bill, subject to further amendments which I am shortly to move, will allow the Welsh Assembly to carry out its responsibilities but in the way it so decides.
I refer also to the noble Lord's remarks in relation to the discussions within the Welsh Assembly about the establishment of a children's commissioner. My understanding is that the Assembly's Health and Social Services Committee will be exploring the details of these proposals. They are to be discussed further on 5th April. Following those discussions, an amendment may be tabled to the Bill in another place.
I turn now to the other amendments in the group which all relate to changes to provide for the National Assembly for Wales to have parallel powers to those provided in the Bill for England.
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Perhaps I may make one further comment about the reasons for amendments being made at this time. It is worth reflecting that the Assembly was established only in July and that, clearly, a great deal of consideration has had to be given to how it would wish to operate the arrangements set out in the Bill. That has delayed the drafting of amendments. I regret that they are being brought before the House at this fairly late stage.
I deal first with the amendments to Clause 9. These are to give the National Assembly the same powers in relation to inquiries as the clause gives to the Secretary of State for England.
Amendment No. 58 in Clause 51 confers both an English and Welsh name on the care council for Wales, an approach taken also in the Government of Wales Act.
Lord Jenkin of Roding: My Lords, perhaps the noble Lord the Minister might be able to pronounce that for us: Amendment No. 58.
Lord Hunt of Kings Heath: Yes, my Lords: I should have known that was coming! I will try: Cyngor Gofal Cymru. I do not think my pronunciation is very good, but that is the best I can do and I stand to be corrected.
Lord Roberts of Conwy: My Lords, the Minister is quite right in saying that it is Cyngor Gofal Cymru.
Lord Hunt of Kings Heath: My Lords, the noble Lord is very kind to me there. Turning to Amendment No. 107, Clause 69 concerns inspection powers for the Assembly for daycare and childminding services. They will ensure that the Assembly has equivalent inspection powers to those of Ofsted in England, but necessarily modified to the circumstances of direct administration by the Assembly. In relation to the protection of vulnerable adults list, it has already been agreed between the Department of Health and the National Assembly for Wales that the list should operate as a single scheme covering both England and Wales. Part VI therefore confers powers on the Secretary of State on an England and Wales basis.
Amendment No. 110 in Clause 70 provides that regulations under Clauses 70 and 78 shall he made by the Secretary of State but that the National Assembly shall be consulted before any regulations are made. There are a number of amendments to Clause 97. As a result of the devolution settlement, the Government of Wales Act provides for receipts to the Assembly to be paid into its own budgets rather than into the Treasury's Consolidated Fund, where this has been specified by primary legislation.
Amendment No. 152 puts these procedures into effect in respect of fees collected under the provisions of the Bill. Amendment No. 153 is needed to deal with pre-devolution legislation being amended after devolution, and ensures that the references to the statute are always up to date. Amendment No. 156 splits Clause 97 into two clauses to create a separate clause to deal specifically with these Welsh details.

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Finally, I turn to amendments to the schedules. Most are very minor and simply ensure that the provisions apply equally to Wales and to England. However, one or two are worthy of specific comment. Amendments Nos. 159 and 210 make changes to reflect the position following devolution in respect of Welsh public records and the Welsh Administration Ombudsman. Amendment No. 205 to Schedule 3 concerns the tribunal established under the Protection of Children Act 1999. As your Lordships will be aware, this is a tribunal which will hear all appeals against decisions made under this Bill. It will be established on an England and Wales basis. The Secretary alone will have regulation-making powers in respect of the tribunal. Very importantly, the amendment ensures that the Assembly should be consulted before such amendments are made. I hope that those explanations have been helpful to the House.
Lord Clement-Jones: My Lords, I should like to thank the Minister not only for his explanation of government amendments but also for his reply to Amendment No. 13. I put it forward in a spirit of inquiry, rather than seeking to impose on the Welsh Assembly what might be considered to be an English imposition. I am grateful for his explanation of where the Assembly has got to in its deliberations and how he envisages the Assembly governing care standards in Wales. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 [General duties of the Commission]:
Lord Clement-Jonesmoved Amendment No. 14:
Page 5, line 3, at end insert ("including standards of clinical care provided in those services").
The noble Lord said: My Lords, this amendment provides for account to be taken of the clinical care provided in care homes as well as the nursing and personal care. It must be recognised that clinical care is being delivered increasingly in care homes. The commission's remit appears through the course of the Bill to address the structure of personal care provision rather than standards and health care. Surely one of the main objectives of the care standards legislation must be to establish the standards of clinical care in all settings. Certainly a number of professional bodies are unsure about whether the Bill's provisions, in their current state, will actually achieve this. It is essential that this duty of quality extends to clinical as well as nursing and personal care.
There is an increasing trend for nursing homes to be used to treat NHS patients. For example, when a hip is replaced in an NHS hospital as part of the treatment episode, the patient may well be discharged from an NHS hospital to a private nursing home for rehabilitation. Certainly "winter pressure moneys" around the country are being used to purchase space in care facilities in order to release beds in the acute sector.
Certainly one of the recommendations from the national beds enquiry is that at least two out of every 10 days spent by people aged over 65 in acute hospitals
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could be better provided for in alternative facilities such as intermediate care beds. A number of issues arise from the debate about the balance between acute and intermediate beds. For example, will those intermediate beds be sited in nursing homes? Will they be covered by the Care Standards Bill's regulatory procedures and how will the provision of clinical care in those homes be inspected?
It may be that when the Minister speaks on Amendment No. 28, which provides for regulations on the "promotion and protection of the health of persons" in various establishments he will be able to satisfy the points that I have raised on this amendment. There are concerns that there should be an emphasis on healthcare provision in care homes and other settings. Perhaps the Minister could explain whether his Amendment No. 28, for instance, means that regulations will be introduced to ensure that standards of clinical care will be inspected where appropriate. Perhaps he will also explain at the same time what procedures will be in place to assess the clinical care delivered to individuals transferred to care homes from hospitals as part of their treatment episode. There are a number of issues regarding clinical care in those social care settings, and I look forward to the Minister's reply. I beg to move.
Earl Howe: My Lords, I support the noble Lord, Lord Clement-Jones, in all that he has said. It may be that the Minister will tell us that standards of clinical care are to be understood as falling within the general definitions contained in Clause 7. I hope that he does. At the very least, though, there must be ambiguity on this issue in the light of the exclusions to Part II services set out in Clause 7(2).
As the noble Lord said, increasingly both residential homes and nursing homes find themselves looking after high-dependency patients, many of whom require clinical treatment. It cannot make sense to draw a distinction between clinical treatment on the one hand and personal and nursing care on the other. Both aspects of care have equal importance. Indeed, if clinical care were somehow left out of the assessment it would be very difficult to see how the promotion and protection of health of people in care homes—which I am delighted to see included in the Government's Amendment No. 28—could be judged in a meaningful way by the inspecting body. If standards of clinical care are to form part of the assessment, then I think we need to seek an assurance from the Minister that the inspection teams will be as multi-disciplinary as clearly they need to be to ensure that all relevant standards are being met.
Lord Hunt of Kings Heath: My Lords, this is a very important debate. We believe that the regulation-making powers in Clause 21 are sufficiently wide to enable the quality of clinical care to be regulated in relation to those homes where it is appropriate for that to be done.
I think we need to reflect that the definition of a care home embraces residential homes and nursing homes. We also need to consider each of those separately in

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relation to this amendment, because although clinical care may be delivered in residential homes this would be carried out by general practitioners and the local NHS community nut sing services. In those circumstances it would not be appropriate to make the residential home responsible for the quality of this care.
It is different with regard to nursing homes, because they themselves deliver clinical care. I entirely agree with the noble Lord, Lord Clement-Jones, that arrangements must be in place to supervise and monitor clinical practice in nursing homes in order to ensure that the clinical care provided is of an appropriate quality. I have no doubt whatever that arrangements for overseeing the quality of clinical care should apply in nursing homes as well as in private hospitals. I take the point raised by the noble Earl, Lord Howe, regarding the need for multi-disciplinary teams. That is extremely important.
As I said, we believe that the powers in Clause 21 are already sufficiently wide to ensure that such procedures are put in place in nursing homes. However, I assure noble Lords that I shall take away the issue and consider it further to ascertain whether there is any doubt about our powers being strong enough to cover concerns in that regard. If so, we should look to table an amendment in another place.
5 p.m.
Lord Jenkin of Roding: My Lords, will the Minister include consideration of the position of community psychiatric nurses and psychiatrists, whose work increasingly takes place in community settings; perhaps in nursing homes as well as in people's own domiciliary accommodation? Will he see whether the line about which he has just told the House can be drawn to cover such work and not leave a gap or have an untidy overlap? That area is changing extremely quickly.
Lord Hunt of Kings Heath: My Lords, I shall of course consider that matter. I do not see any reason why there should be any difference in terms of the line that I tried to draw.
Lord Clement-Jones: My Lords, I thank the Minister for his reply. It is not simply a question of the powers in the Bill; it is clearly a matter of the practice intended by the commission. The Minister's reply has been extremely helpful. I take the distinction—which the noble Lord. Lord Jenkin, teased out somewhat further—between nursing homes and residential homes. We simply want to ensure that there is a seamless inspection of quality and regulation of quality as between acute and intermediate care. Intermediate care is coming increasingly under the spotlight as a result of the long-awaited, and now delivered, national beds inquiry. I shall consider the Minister's reply carefully. We look forward to his deliberations. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Clement-Jonesmoved Amendment No. 15:
Page 5, line 25, at end insert—
("(8) "Excepted services" means the provision of services referred to in subsections (7)(a) and (b).
(9) The Commission shall have the general duty of securing improvements in the quality of excepted services in independent hospitals (as defined in section 2) and shall carry out this duty through the contracting of inspections with the Commission for Health Improvement ("CHI") established by the Health Act 1999.
(10) For the purposes of subsection (9) above the Commission shall ensure that the relevant independent hospital pays the full economic costs of any inspection.
(11) The standards applied by CHI on any such inspection shall be those which it applies in any comparable inspection of a health service hospital.").
The noble Lord said: My Lords, the question of standards of regulation and of inspection in the independent healthcare sector is a long-running issue. We debated the issue not only in Committee but also on the Health Bill last year. It is rather like the Peninsular War: we fight a regular spring campaign after being behind the lines for winter. I hope that it will not take quite as long as that to achieve victory in this case.
The history of the issue is quite simple. After the Health Bill went through, the Government consulted on the regulation of the independent acute healthcare sector. The outcome of that consultation, however unsatisfactory, is now reflected in the Care Standards Bill. The Bill itself gives no assurance that a duty of quality identical to or even similar to that required for the NHS is required for the independent healthcare sector; nor is there any provision for regulation by the same body—the Commission for Health Improvement—responsible for healthcare inspections in the NHS.
The pattern of provision of private or independent healthcare is complex. It is provided in three main ways: first, healthcare is provided in NHS private beds and paid for privately; secondly, healthcare is provided in independent acute hospitals and paid for by the NHS; thirdly, healthcare is provided in independent acute hospitals and paid for privately.
In Committee, the Minister confirmed—as does the document Developing the Way Forward recently published by the Government—that inspections in the first two cases will be the responsibility of CHI: the Commission for Health Improvement. Yet in the last case it seems that a wholly different set of standards and methods of inspection will apply. Certainly, the Commission for Health Improvement will not be directly involved. It is as important for patients to know how well doctors are performing in their private practice as anywhere else and to know that the highest possible standards are being followed in private hospitals. If one asked ordinary people in the street whether they believed that there should be separate and different standards in private healthcare and in the NHS, they would be horrified. I am sure that most people believe that it is the Government's duty to ensure that standards are common across the board.

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At Committee stage, a similar amendment commanded widespread support both in and outside the House. On the Health Bill, the House convincingly passed a similar amendment. Regrettably, both the present Secretary of State and his predecessor set their faces against it. After our debates last year, the Secretary of State decided, despite the consultation process, to set up a completely separate method of registration and inspection to regulate the independent sector. There may well indeed have been some differences between Ministers. On 17th June last year, when we debated the then Health Bill, the noble Baroness, Lady Hayman, said in relation to the consultation document entitled Regulating Private and Voluntary Health Care, that,
"the consultation document does, however, acknowledge that a regulator might wish to contract with another body, such as the commission for health improvement … in order to help carry out local inspections. That is an issue on which we explicitly invite views".—[Official Report, 17/6/99; col. 459.]
Yet it now appears that the Government have firmly made up their minds against any form of contracting to CHI on purely ideological grounds.
As I emphasised in our debates last year, on these Benches we have no particular axe to grind for private health. However, we believe that every patient should have the right to common minimum standards of quality care and safety, irrespective of the sector in which they are treated. My noble friend Lady Nicholson has particular reason to believe strongly in the absolute need for that. In Committee, the Minister recited as a mantra the difference between the regulation of the independent sector and the management of the NHS. The amendment does not cut across that. Registration remains with the care standards commission. It is inspection which will be carried out by the Commission for Health Improvement. The purpose of the amendment is to ensure that the care standards commission contracts the carrying out of inspections in independent hospitals to the Commission for Health Improvement.
In Committee, the Minister made some helpful comments on the issue. He recognised that in the inspection of the independent sector there were skills and expertise possessed by the Commission for Health Improvement which would be of importance to the commission in running its own inspection system. Yet he did not go so far as to acknowledge the benefits of a single inspection system. Developing the Way Forward similarly nods in the direction of CHI but fails to go the last mile. The amendment would enable CHI to monitor and ensure the quality of the services provided in both healthcare sectors and to identify and promote best practice wherever it may be found. Common standards between the NHS and the independent healthcare sector could then be ensured. CHI would be in a position to use the expertise gained from inspecting NHS services and facilities and the same limited pool of expertise could be used in the independent healthcare sector.
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The amendment makes it quite clear that the relevant independent hospital will pay the full economic cost of any such inspection. No one is suggesting that the taxpayer should pay for CHI to inspect private healthcare. We have made no bones that the Bill as a whole is extremely welcome. It will provide common consistent regulation across the social care sector, irrespective of whether it is publicly or privately provided. But no such provision is being made for the healthcare sector. Ministers proclaim the virtues of a mixed economy in social care but somehow they will not admit the fact that we have also, albeit on a limited scale, a mixed economy in healthcare. After all, it was only recently that the Prime Minister acknowledged the contribution made by the independent sector.
There are over 200 hospitals in the private sector, comprising approximately 10,000 beds. It makes no sense at all to exclude some 800,000 treatments per year carried out in private hospitals and work carried out by more than 17,000 doctors, most of whom work also in the NHS. Very few consultants practise only in the private sector. The NHS itself spent some £450 million in the independent sector last year, mainly on elective surgery. Independent healthcare sectors should be regulated overall by the national institution best suited to do the job and to do it well. That institution is the Commission for Health Improvement and that is what the amendment is designed to achieve. I beg to move.
Lord Jenkin of Roding: My Lords, I left the debate in Committee in a state of bewilderment. I simply could not understand why the Government had set their face against what the noble Lord, Lord Clement-Jones, has so clearly described. I hope that two recent events may convince Ministers that the amendment should be accepted and that the independent sector of hospitals should be subject to the inspection regime of CHI.
The two events to which I refer seem to have happened more or less together, but are unconnected. The first was a conversion on the road to Damascus over the river. The Prime Minister was confronted by a group of consultants who said that they would be able to do much more to get their waiting times down if they were free to treat more of their patients in beds in independent hospitals. I gather the Prime Minister said, "Whoever told you that you can't?", to which the reply was, "Your Secretary of State, Prime Minister". Indeed, successive Secretaries of State have tried to make it clear that for obviously ideological reasons that was not acceptable. The Prime Minister, to his credit, said, "That's barmy"; I paraphrase. As the noble Lord, Lord Clement-Jones, pointed out, many NHS patients are treated in private hospitals and a great many more could be, particularly at a time when NHS beds are under acute pressure, as they were in January and February.
The second event to which I refer is that in the Budget the Chancellor gave us these wonderful figures of the proportion of the national product to be devoted to healthcare, matched by considerable

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additional finance. What he did not say, but which subsequently transpired, is that the figures he gave include what is spent in the private sector. One now recognises what has long been apparent to a great many people. We have a variety of healthcare systems. The suggestion that somehow the National Health Service lives in an isolated cocoon and that somewhere there is a completely different system treating different people bears no relation to the truth.
There is bound to be more interaction and a higher and higher proportion of healthcare which will be paid for and delivered under the independent sector. One will find more and more people comparing standards and making their choices on the basis of looking and seeing what they can obtain in the different sectors. For the sectors to be subject to an entirely different inspection procedure seems in these circumstances—I use the word which I used in Committee—bizarre. I cannot help feeling that the Government have got themselves hooked in an ideological time warp of saying, "It has to be different because it's the NHS".
Before the last election, when I was chairman of a trust, we made no bones about it; we regularly had patients treated in private hospitals. That was the most effective way to deploy our resources, particularly at times of peak demand. That is now happening more and more. Now that the Prime Minister has discovered that many people thought they were not able to do that, it will happen more.
We need to recognise that we have moved on, even from the date of Committee stage, and are now in a new world. It is now accepted that the figures of total spending on health cover both the private and public sectors. There will be more and more movement between the sectors and we really must have a common inspection system.
I understand the point made by the Minister about inspecting an independent hospital and the management of a health service. However, when talking about standards of care, clinical standards and standards of management, and so forth, there is everything to be said for having a common standard enforced by a single regulatory agency.
Baroness Pitkeathley: My Lords, there will be no argument in your Lordships' House that what is needed is a tough and effective system for regulating private hospitals The setting up by the Government of a national care standards commission will, for the first time, ensure that that is what we shall have.
I cannot see how the aim of a tough, simple and effective system would be met by the proposal to contract out inspections to CHI. It seems to me that confusion would result, when what is needed, as everybody agrees, is a simple and effective system; leave alone the question of whether CHI—there are a variety of pronunciations for the Commission for Health Improvement in your Lordships' House—has the requisite skills and powers. It seems to me that patients and their families who use the private healthcare system are united in wanting regulation of private hospitals. However, they are also united in wanting the simplest possible system.
5.15 p.m.
Earl Howe: My Lords, there is little for me to say on the amendment which has not already been said most persuasively by the noble Lord, Lord Clement-Jones, and my noble friend Lord Jenkin. This may have been a mantra rehearsed many times in your Lordships' House over the past year or more but it bears repeating. What we want to see, and what patients nowadays expect, is consistency in clinical standards across the public and private healthcare sectors and consistency in enforcement.
The distinction which the Government seek to draw between the NHS and the private sector is that the NHS is a managed service and the private sector a regulated service, and the two must therefore be subject to different regimes. In one sense I understand the point made by the Minister. The Government do not manage the private sector in the way that the NT-IS is managed. However, inspection and enforcement are regulatory activities. The Commission for Health Improvement is a regulator. For evidence of that we need look no further than the advertisement for senior staff posts in CHI which appeared in the Health Service Journal on 20th January. The heading states:
"We will be a developmental, facilitative and regulatory independent body".
Why should it not be CHI that spreads good practice across both healthcare sectors? It is perfectly placed as a regulator so to do.
The practicalities of any other course need to be borne in mind. We know that CHI will, in any event, have responsibility for regulating the care of NHS patients in private hospitals. Are we to suppose that CHI inspectors will be told, when they arrive in a certain ward, "You are responsible for beds 1, 3, 5 and 7 but not beds 2, 4, 6 and 8"? The idea is laughable. In those circumstances, CHI will assess the clinical and care standards in the ward as a whole and, indeed, in the entire hospital. This is a matter in which the Government's position to date has defied reason and common sense; the implied subtext being that if it is not done within the NHS, it is not proper healthcare. I hope that we shall hear something from the Minister today to indicate that a change of heart is possible.
Baroness Gardner of Parkes: My Lords, I rise briefly to support the amendment and ask for clarification. I did not understand the argument put forward by the noble Baroness, Lady Pitkeathley. She stated that she did not believe CHI to be the appropriate body to carry out inspections in the independent sector. Is she saying that inspections should be carried out by one body in both the private and national health sectors; or is she saying that neither sector should be regulated, or both? The argument put forward by my noble friends and in the amendment is based not so much on who carries out the inspection, although that is the wording of the amendment, as on the uniformity of using one regulatory body for both private and NHS hospitals. That is the essence of what we want. The detail of

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which body that would be is of secondary importance. It is the principle of a single regulator that is important.
Baroness Nicholson of Winterbourne: My Lords, I rise to speak to Amendment No. 15, to which I have added my name. I also support all that has been said by my noble friend Lord Clement-Jones and the noble Earl, Lord Howe. Furthermore, I concur fully with the words of the noble Lord, Lord Jenkin of Roding.
This amendment is very important. If passed, it will ensure that the standards of private clinical care match up to those of the National Health Service. Furthermore, it will provide that acceptable levels of professional training and practice will be tested and proved by the same mechanism as that put in place by the Government for the National Health Service. This would enable patients at last to see, assess, monitor and report back, so that actual improvements can be achieved and published against known and agreed standards. The standards would be the same as those established for the National Health Service. In that way, the National Health Service would effectively provide the benchmark—the hallmark—and quality stamp, and the private sector would need to follow suit.
That will be very different from the situation as it is now. Private hospitals today are seriously outclassed by the NHS. Only in waiting times does private healthcare win. In virtually every other health activity measurable by known indicators, the private sector rarely does better than the NHS and frequently offers lower value service at far higher costs—sometimes at rip-off costs, imposed under the name of "charity".
When one looks at the private sector, the problems are obvious: the lack of anaesthetists; insufficient trained staff at all levels; the lack of basic drugs required to be made available for classic procedures and the size of IT units. Often those are far too small and the anaesthetists may be elsewhere. Has the Minister asked why private hospitals are built close to NHS hospitals? That is done so that National Health Service IT units can be used when private IT units fail. Further, NHS units are used and are not reimbursed, so that private patients bump NHS patients off the critical list.
Of course, surgeons working in the private sector are NHS surgeons operating after hours, or retired surgeons, who may rapidly become out of date with the advances in medical care. Furthermore, there is a lack of aftercare. Private rooms can mean that blood pressure checks are not made sufficiently often, with fatal consequences. I have a folder full of reports about miserable incidents of this kind. However, perhaps the extremely high turnover of theatre nurses and IT staff in many private hospitals says it all.
As regards complaints, it is very difficult to complain. Private hospitals may themselves have set up their own complaints procedures, but they do not need to be initiated unless private hospitals wish that to happen. I have been told of instances where patients have been treated with fatal consequences, whose
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relatives have sought to instigate known complaints procedures within private hospitals, but the private hospitals have refused. It is an unhappy situation.
Not all private hospitals are like this. There is, for example, an outstanding hospital in Scotland with perhaps the best facilities of all; BUPA hospitals are not-for-profit institutions and have an enviable track record. However, the standards are so erratic that patients and families simply cannot tell, when they enter a private hospital, what kind of treatment they will receive. On websites one can find promotions for private hospitals offering trained staff throughout their wards and in all their facilities. But when one arrives, that proves not to be so. Alas, in healthcare, when one finds out, it is frequently too late.
Patients are vulnerable. When we are sick, we are dependent on good professionals. In good faith, we buy or receive a certain standard and quality of service from others. In the private sector, we cannot be sure that we will receive it.
Nevertheless, the National Health Service needs the private sector. On 1st March the Prime Minister declared that he was going to use the private sector extensively. He declared that over the past three years, some 20,000 operations had been carried out on NHS patients in private institutions. It is possible that another 200,000 operations could be carried out in this way. That would represent one operation in every 30.
The Bill before us offers only a fragile reliance on hard-pressed NHS staff to check out standards in the private health sector. The Government's paper states that NHS patients will be protected because the National Health Service will check out the private sector. However, unless the same regulatory body—a body that is well accustomed to checking on the NHS—is used for the private sector, who is going to undertake that chore? It does not even happen now when NHS patients go into the private sector. Of course, contracts are drawn up with the private hospitals, but the NHS simply does not have the time to monitor them. So staff in the private sector, whether good, bad or indifferent, are not quality checked in the same way as those working in the NHS. I believe that that checking task rightly belongs to the Commission for Health Improvement.
Why does the Minister choose not to go down this path? This amendment offers the Government another chance to do so. The original Green Paper at least proposed a separate private health commissioner. Alas, the Bill has discarded that excellent opportunity in favour of regulations—still to be discussed, and to be discussed within the private sector. All that is left is a promise to consult. Although the Government promise further consultation "with the private and voluntary healthcare sector" over the next 12 months, it is clear that the resultant regulations will be for the Government to impose, and not for Parliament.
Nor is the Government offering to consult with patient groups, community health councils, Action for Victims of Medical Accidents, the Consumers' Association, APROP and the Patients Association. All of those should be included in such consultation because the regulations will be of critical importance.

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Perhaps the final straw for me and for others is that the Government's paper also acknowledges that it will,
"not be feasible for NSSC inspectors to be involved in all aspects of clinical detail of all the services that need to be regulated".
Surely these are the very areas that cry out for regulation so that private hospitals can offer the same quality as is ensured by the NHS clinical audit. That is fundamental to the success of any regulatory system.
"The present Government have a laissez faire attitude towards the private sector".
I have quoted from a statement made by a King's Fund Fellow in an article headed,
"Private Healthcare: Modernisation Stops Here".
This sits ill with the Prime Minister's inclusion of funds spent in the private sector when making Budget health forecast claims. It does not match up the promise made by the Prime Minister to use the private sector to fulfil his intention to shorten waiting lists for NHS treatment. Of what use to a patient is a bed in luxury surroundings if early death is the result?
This amendment will offer greater patient safety by ensuring that the same standards of protection apply in the private sector as in the National Health Service. I beg the Minister to think again.
5.30 p.m.
Lord Hunt of kings Heath: My Lords, perhaps I may say at the beginning of my response that I have reflected carefully on the comments made both today and in Committee. I should like to assure all noble Lords that I take neither an ideological nor a bizarre approach to this matter. There are genuine reasons why it is sensible to provide that the regulation of the private healthcare sector should be undertaken using different arrangements from those that provide the effective management of the National Health Service which faces enormous challenges in the modernisation of its services—something that we all want to see. I believe that it is wrong to insist that the national care standards commission must use the Commission for Health Improvement to undertake work on its behalf in the regulation of the private health sector.
However, I equally accept the need for close collaboration between those two bodies. We want to see them working in a sensible and collaborative way and I very much take the point that has been made on the need for consistency of approach by both organisations.
I start by responding to the noble Baroness, Lady Nicholson, who raised a number of important issues concerning the current regulation of the private healthcare sector. There is no doubt that, while arrangements are in place for the regulation of that sector in the Registered Homes Act, there has been an inconsistency of approach and in some parts of the country a lack of sufficient expertise.
I want to assure the noble Baroness and the House that we take the regulation of private and voluntary healthcare seriously. We estimate that over 1,500 providers of independent healthcare will be regulated by the national care standards commission across a wide area of services and providers. They will include
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private acute hospitals, private doctors, abortion clinics, hospices, and clinics where powerful lasers are being used. Of course our fundamental concern is to see that appropriate safeguards and quality assurance systems are in place for the patients who receive services from those kinds of healthcare provider.
In ensuring those safeguards and that quality of care, we do not intend to reinvent the wheel; we aim to have regard to existing good practice. We will take account of the standards that the NHS currently applies. We will have regard to quality assurance programmes that already exist and to which many private and voluntary healthcare providers already subscribe.
The regulations and standards will be developed through consultation, including with the independent healthcare sector, but also with the kind of organisations that the noble Baroness mentioned. We want to see the widest possible consultation in developing the standards and regulations necessary. It will be a thorough process which we envisage will take place from this spring for a 12-month period. Subject to the outcome of that consultation process, we envisage that there will be a number of general standards across the broad range of private and voluntary healthcare and then specific standards for specific areas of service to be regulated. In doing that, we intend to produce regulations and standards that are appropriate, clear and the implementation of which can be effectively monitored.
The relationship between the Commission for Health Improvement and the national care standards commission has been debated in this House on a number of occasions. As I have already intimated, the proposal in the amendment is that CHI should be involved in the regulation of independent healthcare and those are familiar arguments. But the Government remain of the view that CHI's principal role has to be about helping to modernise and improve the quality of NHS services. It was brought into existence solely with that important task in mind. It does not have responsibility for the regulation of private healthcare.
Having said that, we recognise that there is a need for CHI and the national care standards commission to liaise and co-ordinate on common areas of interest; for example, as noble Lords have already mentioned, where NHS patients are receiving treatment in private hospitals. The scoping paper that we produced recently on the voluntary and private healthcare aspects of the Care Standards Bill made that point. However, it may be helpful for me to say a little more about our thinking in this area.
CHI is a key part of our agenda for modernising the NHS. It is independent of the NHS. It was established to strengthen external oversight of NHS activity, to improve quality and to provide reassurance to the public that the NHS is fulfilling its responsibilities for quality. It has a key role in providing robust external scrutiny of clinical governance arrangements put in place by NHS bodies to assure and develop high quality services.

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CHI will look at services provided to NHS patients. Where an NHS organisation has subcontracted with the independent sector to provide care, the NHS organisation will retain responsibility for the quality of care provided to those patients. It therefore follows that CHI will assess how arrangements to assure quality in the NHS organisation are carried through where care is provided in the independent sector. That will usually be through the contract between the two organisations concerned—the NHS organisation and the private sector organisation.
CHI also has powers to require persons to provide information it needs in conducting its reviews and investigations, subject, of course, to the restrictions under the Act to protect personal, confidential information which we have already discussed. Where an NHS trust has pay-bed facilities, it will retain the overall responsibility to put in place robust systems to assure the quality of care.
CHI's interest is in clinical governance systems in NHS bodies; in the impact and implementation of guidance from the National Institute for Clinical Excellence; and in the NHS national strategic frameworks. I am sure that your Lordships can see that, although in some respects it will have common interests with the care standards commission, there are many more differences than similarities in the roles and responsibilities of the two organisations.
In contrast with CHI, the national care standards commission will be purpose built to include in its responsibilities the regulation and inspection of non-NHS healthcare providers. It will regulate those services by reference to regulations and standards which will be drawn up in consultation with the independent healthcare sector and other organisations. It will undertake inspections of each regulated body at least once a year. It may apply sanctions if the regulations and standards are not complied with. It will not be concerned with the NHS. It will have a completely different role and focus from the Commission for Health Improvement.
It is fair to say, therefore, that CHI and the national care standards commission have separate and distinct roles designed to fulfil their separate and distinct responsibilities. But—here I come to the reassurances I should like to give to the House tonight—they should not and will not operate in isolation from each other. For example, I would expect them to liase on their respective activities which involve private and voluntary healthcare when CHI is planning a review of clinical governance arrangements in an NHS trust that has a significant contract with an independent healthcare provider; for example, a mental health hospital. In those circumstances, the national care standards commission should be informed of that review because of its responsibilities as a regulator of the mental health hospital. Such liaison will be necessary not least to ensure that the timetable of CHI reviews and the national care standards commission are co-ordinated in so far as they concern independent healthcare—a point raised by the noble Earl, Lord Howe.
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The second important way in which CHI and the national care standards commission will collaborate is of particular relevance to the amendments. There will be a sharing of expertise between CHI and the national care standards commission. CHI will draw on a pool of around 500 experts to assist in its reviews, many of whom will be seconded from the NHS for short periods. The national care standards commission will be able to have access to that same expertise in order to obtain specialist advice as and when appropriate in its inspections. As noble Lords may recall from Committee stage, the Bill provides for staff to be seconded from CHI to the commission and vice versa.
To complete the picture of collaboration between the two bodies, a third key area concerns information sharing. It is important that information about the independent healthcare aspects of CHI reviews and the care standards commission inspections are exchanged and, subject to the duty of confidence and/or statutory disclosure, we expect the two commissions to share as much relevant information as possible.
I hope that that demonstrates that the Government are keen for the commission and CHI to co-operate effectively. To help facilitate that further, and in answer to the specific point made tonight in relation to the contracting of services, we shall introduce in the Commons an amendment which enables the two bodies to sub-contract work to one another in respect of their interest in independent healthcare. I hope that that will go some considerable way to reassuring noble Lords that, while we consider that it is absolutely right that there are separate functions for both CHI and the national care standards commission, we will expect them to collaborate; to be informed by their respective work; and to enable there to be a consistency of approach. On that basis I invite the noble Lord to withdraw his amendment.
Lord Clement-Jones: My Lords, I thank the Minister for that reply. However, with the greatest respect to the noble Lord, the more he spoke, the more I felt the virtue of the amendment. It seems to me that there is a great deal of circular thinking in what the Government have to say. I do not deny that the Minister went to great pains and took a good deal of trouble over his response to the amendment. But the more he spoke about secondment, collaboration and information sharing—indeed, he even offered to bring forward an amendment about enabling subcontracting—the more I thought, "Let's make it simple; let the Commission for Health Improvement inspect both sectors".
Moreover, with the greatest respect to the noble Baroness, Lady Pitkeathley, the entire purpose of the amendment is to simplify the system. The noble Earl, Lord Howe, put it extremely well when he asked, "What happens in beds 2, 4 and 8, while beds 1, 3, 5, 7 and 9 get a different regime?" That seems to me to highlight the absurdity of the current situation, whether you play it with secondment, collaboration or joint training. Quite honestly, the word of the day, "bizarre", which was uttered by the noble Lord, Lord Jenkin, sums up the position that the Government

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have reached. They have given further and further ground in terms of being willing to accept some of the arguments, but the argument that they are not accepting is that the Commission for Health Improvement is the body to regulate both sectors.
Last night, I looked at the website for the Commission for Health Improvement. It is full of the very great and the very good. Indeed, looking at its objectives on that website, it seems to me that CHI would be entirely able to carry out—and, indeed, would do so extremely competently— the duties that we seek to impose on it. I have every confidence in that respect—and that seems to be a great deal more than the Government are expressing. I could go on at greater length, but I shall not do so. We believe this to be a most important matter. It is one that affects the lives and the health of those in independent healthcare. It is an extraordinary element of illogicality that the Government propose to take forward. Therefore, in those circumstances, I propose to seek the opinion of the House.
5.41 p.m.
On Question, Whether the said amendment (No. 15) shall be agreed to?
Their Lordships divided: Contents, 162; Not-Contents, 132.

Division No. 1

CONTENTS

Addington, L.

Denham, L.

Alton of Liverpool, L.

Dholakia, L.

Anelay of St. Johns, B.

Dixon-Smith, L.

Arran, E.

Dundee, E.

Astor, V.

Eccles of Moulton, B.

Astor of Hever, L.

Eden of Winton, L.

Avebury, L.

Elliott of Morpeth, L.

Barker, B.

Elton, L.

Beaumont of Whitley, L.

Emerton, B.

Bellwin, L.

Ezra, L.

Belstead, L.

Falkland, V.

Bledisloe, V.

Feldman, L.

Boardman, L.

Ferrers, E.

Brabazon of Tara, L.

Flather, B.

Bradshaw, L.

Fookes, B.

Brougham and Vaux, L.

Forsyth of Drumlean, L.

Burnham, L.

Gardner of Parkes, B.

Butterworth, L.

Geddes, L.

Byford, B.

Geraint, L.

Campbell of Alloway, L.

Glentoran, L.

Campbell of Croy, L.

Goodhart, L.

Carlile of Berriew, L.

Gray of Contin, L.

Carnarvon, E.

Greenway, L.

Carnegy of Lour, B.

Hamwee, B.

Cavendish of Furness, L.

Hanham, B

Chalker of Wallasey, B.

Harris of Greenwich, L.

Clark of Kempston, L.

Harris of Richmond, B.

Clement-Jones, L. [Teller]

Hayhoe, L.

Cope of Berkeley, L.

Henley, L. [Teller]

Courtown, E.

Higgins, L.

Cox, B.

Hogg, B.

Crathorne, L.

Holderness, L.

Dacre of Glanton, L.

Holme of Cheltenham, L.

Dahrendorf, L.

Hooper, B.

Darcy de Knayth, B.

Howe, E.

Dean of Harptree, L.

Howe of Aberavon, L.

Deedes, L.

Hunt of Wirral, L.

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Jenkin of Roding, L.

Razzall, L.

Jenkins of Hillhead, L.

Reay, L.

Jopling, L.

Rees-Mogg, L.

Kimball, L.

Rennard, L

Knight of Collingtree, B.

Renton, L.

Lane of Horsell, L.

Roberts of Conwy, L.

Lang of Monkton, L.

Rodgers of Quarry Bank, L

Lester of Herne Hill, L.

Rotherwick, L.

Linklater of Butterstone, B.

Russell, E.

Ludford, B.

Ryder of Wensum, L.

Luke, L.

St. John of Fawsley, L.

McColl of Dulwich, L.

Saltoun of Abernethy, Ly.

McConnell, L.

Sandberg, L.

Mackay of Ardbrecknish, L.

Seccombe, B.

Mackie of Benshie, L.

Sharman, L.

McNally, L.

Sharp of Guildford, B.

Maddock, B.

Sharples, B.

Marlesford, L.

Shaw of Northstead, L.

Masham of Ilton, B.

Simon of Glaisdale, L.

Mayhew of Twysden, L.

Skelmersdalc, L.

Methuen, L.

Smith of Clifton, L.

Miller of Chilthorne Domer, B.

Stewartby, L.

Miller of Hendon, B.

Strathclyde, L

Monro of Langholm, L.

Swinfen, L.

Montrose, D.

Taylor of Warwick, L.

Mowbray and Stourton, L.

Tebbit, L.

Murton of Lindisfarne, L.

Thomas of Gwydir, L.

Newby, L.

Thomas of Swynnerton, L.

Nicholson of Winterbourne, B.

Thomas of Walliswood, B.

Northbrook, L.

Tope, L.

Northesk, E.

Tordoff, L.

Norton of Louth, L.

Trefgarne, L.

O'Cathain, B.

Trumpington, B.

Onslow, E.

Tugendhat, L.

Oppenheim-Barnes, B.

Vinson, L.

Park of Monmouth, B.

Vivian, L.

Patten, L.

Walker of Worcester, L.

Pearson of Rannoch, L.

Walpole, L.

Perry of Walton, L.

Watson of Richmond, L.

Peyton of Yeovil, L.

Weatherill, L.

Phillips of Sudbury, L.

Wigoder, L.

Prior, L.

Williams of Crosby, B.

Quinton, L.

Wright of Richmond, L.

Rawlinson of Ewell, L.

Young, B.

NOT-CONTENTS

Ahmed, L.

Dormand of Easington, L.

Amos, B.

Dubs, L.

Archer of Sandwell, L.

Eatwell, L.

Ashley of Stoke, L.

Elder, L.

Ashton of Upholland, B.

Evans of Parkside, L.

Bach, L.

Evans of Watford, L.

Barnett, L.

Falconer of Thoroton, L.

Bassam of Brighton, L.

Farrington of Ribbleton, B.

Blackstone, B.

Faulkner of Worcester, L.

Borrie, L.

Gale, B.

Bragg, L.

Gavron, L.

Brooke of Alverthorpe, L.

Gilbert, L.

Brookman, L.

Gladwin of Clee, L.

Brooks of Tremorfa, L.

Gordon of Strathblane, L.

Burlison, L.

Goudie, B.

Carter, L. [Teller]

Gould of Potternewton, B.

Castle of Blackburn, B.

Graham of Edmonton, L.

Christopher, L.

Gregson, L.

Clarke of Hampstead, L.

Hardy of Wath, L.

Cocks of Hartcliffe, L.

Harris of Haringey, L.

Crawley, B.

Harrison, L.

Currie of Marylebone, L.

Haskel, L.

David, B.

Hayman, B.

Davies of Coity, L.

Hilton of Eggardon, B.

Davies of Oldham, L.

Hogg of Cumbernauld, L.

Dean of Thornton-le-Fylde, B.

Hollis of Heigham, B.

Desai, L.

Howie of Troon, L.

Dixon, L.

Hoyle, L.

Donoughue, L.

Hughes of Woodside, L.

687

Hunt of Kings Heath, L.

Peston, L.

Irvine of Lairg, L. (Lord Chancellor)

Pitkeathley, B.

Plant of Highfield, L.

Islwyn, L.

Prys-Davies, L.

Janner of Braunstone, L.

Puttnam, L.

Jay of Paddington, B. (Lord Privy Seal)

Ramsay of Cartvale, B.

Rea,L.

Jeger, B.

Rendell of Babergh, B.

Jenkins of Putney, L

Richard, L.

Judd, L.

Rogers of Riverside, L.

Kennedy of The Shaws, B.

Sainsbury of Turville, L.

King of West Bromwich, L.

Sawyer, L.

Kirkhill, L.

Scotland of Asthal, B.

Lea of Crondall, L.

Serota, B.

Levy, L.

Sewel, L.

Lipsey, L.

Shepherd, L.

Lockwood, B.

Shore of Stepney, L.

Lofthouse of Pontefract, L.

Simon, V.

Longford, E.

Smith of Leigh, L.

Lovell-Davis, L.

Stoddart of Swindon, L.

McCarthy, L.

Stone of Blackheath, L.

McIntosh of Haringey, L. [Teller]

Strabolgi, L.

Symons of Vemham Dean, B

McIntosh of Hudnall, B.

Thornton, B.

MacKenzie of Culkein, L.

Tomlinson, L.

Mackenzie of Framwellgate, L.

Turner of Camden, B.

Mallalieu, B.

Uddin, B.

Mason of Barnsley, L.

Varley, L.

Massey of Darwen, B.

Walker of Doncaster, L.

Merlyn-Rees, L.

Warner, L.

Milner of Leeds, L.

Warwick of Undercliffe, B.

Molyneaux of Killead, L.

Wedderburn of Charlton, L.

Morris of Castle Morris, L.

Morris of Manchester, L.

Whitaker, B.

Murray of Epping Forest, L.

Whitty, L.

Nicol, B.

Wilkins, B.

Orme, L.

Williams of Elvel, L.

Patel of Blackburn, L.

Woolmer of Leeds, L.

Paul, L.

Young of Old Scone, B.

Resolved in the affirmative, and amendment agreed to accordingly.
5.52 p.m.
Baroness Davidmoved Amendment No. 16:
After Clause 7, insert the following new clause—
MONITORING AND PROMOTION OF FOSTERING ARRANGEMENTS
(" . The Commission shall have the general duty of monitoring and promoting local authorities' duties under Part IX of the Children Act 1989 (private arrangements for fostering children).").
The noble Baroness said: My Lords, in moving Amendment No. 16 I wish to speak also to Amendment No. 22, with which it is grouped. Amendment No. 22 is the more important amendment and I shall speak to it first. It concerns regulating private foster care.
I moved this amendment in Committee and I received support from all sides of the Chamber. I believe that the noble Earl, Lord Howe, and the noble Lord, Lord Clement-Jones, supported it on the previous occasion. The noble Lord, Lord Clement-Jones, has attached his name to Amendment No. 22. I am sorry that the noble Lord, Lord Laming, is not present. As an ex-inspector of social services his support was extremely valuable. However, owing to his other commitments, he cannot be present.
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Children who are privately fostered deserve the same kinds of protection as other children who live away from home. They are just as vulnerable, and their numbers significantly exceed the number of children living in community homes. A large proportion of privately fostered children are from minority ethnic communities: a failure to safeguard these children could be construed as "institutional racism".
The Children Act 1989 requires persons who intend to foster a child privately under the age of 16 for more than 28 days to notify their local authority. Local authorities are required to safeguard the welfare of privately fostered children but they do not have to approve or register private foster carers. That is what the amendment seeks to address. This is an anomaly. Local authorities have a duty to approve and register childminders and other day care providers, yet these children return to their families each day.
The current system is not working. Local authorities have not consistently advertised the duty of private foster carers to notify them. A 1993 Social Services Inspectorate report concluded,
"potentially vulnerable children were being placed in the care of strangers, without any checks being undertaken as to their suitability to care for children".
Even if local authorities were being notified of all private fostering arrangements, their current responsibilities towards such children would still be lacking.
Sir William Utting, in his comprehensive review of safeguards for children living away from home, concluded that current legislation is not protecting children. His report stated:
"Private fostering is clearly an area where children are not being safeguarded properly, indeed an unknown number are likely to be seriously at risk … all children living away from home should be safeguarded and those who are privately fostered should be no exception".
We all have great respect for Sir William Utting; his words should be noted by the Government.
This amendment would require prospective private foster carers to register with the national care commission. They would undergo an assessment of their suitability to look after children, and the care they offer would be periodically monitored. The national commission would liaise with local authorities, notifying them of all children in their area who are privately fostered and sending them copies of their assessment reports. These reports would highlight whether additional safeguards needed to be put in place for individual children.
These children would not be "looked after"; that is, in care, and this provision would still allow parents to make their own arrangements. However, if passed, these amendments will ensure that all private foster carers are assessed in relation to their suitability to care for children, and it will set in place a system for local authorities to receive formal notifications of any concerns in relation to individual children.

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In Committee the Minister said in reply to this amendment,
"we consider that the current regulations concerning private fostering are adeguate to as long as they are enforced. I believe that concentration and focus should be placed on the terms of enforcement … Therefore, we are planning a publicity campaign … targeted to affect the most vulnerable groups of children".—[Official Report, 10/1/2000; col. 516.]
I said that I was extremely disappointed with that response and that at I would probably return to the matter on Report, as I am doing. However, as a result of what the Minister said about enforcement, I have tabled Amendment No. 16, which I hope will strengthen the enforcement. Amendment No. 16 states:
"The Commission shall have the general duty of monitoring and promoting local authorities' duties under Part IX of the Children Act 1989 (private arrangements for fostering children)".
It seems to me that if the Government are concerned about enforcement, it makes sense to place the national commission under a duty to encourage this; otherwise, private fostering is left entirely outside the remit of the commission, with the likely consequence that it will become an even lower priority for local authorities.
This is an important amendment. After all the child abuse and other such scandals that have occurred, it seems to me that we are leaving a great gap in the provision for looking after children if we do not include the amendment on the face of the Bill. I hope that the Minister has had second thoughts about the matter since the Committee stage. I beg to move.
Lord Clement-Jones: My Lords, I continue where the noble Baroness, Lady David, left off. I certainly hope that the Minister will have second thoughts about the matter. The noble Baroness made an extremely persuasive case. One does not have to pray in aid just the 1993 Social Services Inspectorate report, or indeed that of Sir William Utting, which were utterly clear, but simply the practice as it exists at the moment. Even the Minister in a sense admitted that the current situation was not satisfactory. Therefore I urge him to take on board the wise words of the noble Baroness and have second thoughts about the matter.
Earl Howe: My Lords, I, too, support everything that the noble Baroness has said. I believe that her approach to priliate fostering is absolutely sound. We have a curious situation with a Bill that includes childminding where a child returns to his own home each day, but omits placements of children made privately by parents or guardians.
As the noble Baroness said, many of the children placed privately may be from the ethnic minorities. Their parents may have come to this country to study and they may net visit them frequently. The situation of those children is less safeguarded than that of children in the care of local authorities or being looked after by local authorities. Indeed, their placement may not have been as carefully planned as that of children in care. The noble Baroness has an extremely powerful case and I support her.
6 p.m.
Lord Hunt of Kings Heath: My Lords, I have taken the opportunity to look again at this matter. I remain convinced that the current legislative framework is rigorous enough to ensure that the position of children privately fostered under the circumstances contained in the Children Act would be adequately safeguarded if local authorities carried out their duties effectively. The issue before us is how to ensure that local authorities carry out their responsibilities.
Turning first to Amendment No. 22, I can confirm that we do not intend that the national care standards commission should be responsible for registering private foster carers. That would suggest that they were in the same category as care homes or other services regulated by the commission. It is worth reflecting that private fostering is very much a domestic, family-based activity. It would not be appropriate for it to be regulated by a national commission, whose main concern lies with larger organisations and businesses.
I understand my noble friend's reference to the scant oversight of private fostering and the need for much closer scrutiny of it. I agree with her. I agree that greater action is needed to safeguard children who are in private foster families.
As I intimated, Part IX of the Children Act sets out stringent requirements for local authorities to satisfy themselves of the safety and adequacy of individual private foster care arrangements. The law requires private foster carers to notify local authorities when they foster a child privately. The local authorities are then under a duty to visit the child in the private foster home and to check on his or her welfare. These visits should then take place every six weeks. That is a great deal more frequently than, for instance, an inspection of a children's home. It is not the law that is the weakness but the question of making sure that happens.
This brings me to my noble friend's other amendment, the spirit of which I sympathise with rather more. Amendment No. 16 would require the national care standards commission to monitor the performance of local authorities and to check on how well they comply with their duties under the Children Act with regard to private fostering. This is the rig ht approach. However, I believe that the task of overseeing local authorities and ensuring that they carry out their statutory duties is one for the Social Services Inspectorate rather than the national care standards commission. The Social Services Inspectorate is the Government's inspectorate dedicated to assessing how well local authorities are delivering their social services responsibilities, including how well they are carrying out their responsibilities for safeguarding children, wherever they are.
In the light of the concerns raised by my noble friend, I can confirm that we intend to carry out a range of actions. First, as I have said, we are concerned

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that the regulation of private fostering is little known; it is a much neglected and little understood issue. I make no apology for saying that we plan a national publicity campaign to promote awareness of the regulations and, particularly, to make private foster carers aware that they are obliged by law to notify all private fostering arrangements to local authorities. Secondly, we will build on that by issuing revised guidance to local authorities to remind them of their responsibilities for regulating private fostering and to ensure that they all adequately enforce the regulatory regime to which I have referred.
We will follow up that by ensuring that the Social Services Inspectorate checks that action is being taken. There will be a Social Services Inspectorate inspection of local authorities' enforcement of the private fostering regulations to make sure that we know what is happening. Depending on the outcome, we will take further action as necessary. I do not need to remind the House that the Government have extensive powers over local authorities, particularly following last year's Local Government Act which introduced the best value regime. Where Ministers are advised by the Social Services Inspectorate that any particular authority is failing in its duties, they have a range of levers and sanctions at their disposal. In extreme cases, that could include removing responsibility from the authority in question and asking another authority to carry out that particular function instead.
I hope that I have reassured my noble friend that we take the point of the need to ensure that private fostering arrangements are appropriately regulated. We believe that the current legislation allows that. The challenge is to ensure that local authorities carry out their responsibilities effectively. Through the mechanisms I have suggested—including publicity, including guidance and including the follow-up inspections by the Social Services Inspectorate—we will be able to do that.
Baroness David: My Lords, do I understand that the Minister will not put anything on the face of the Bill to ensure that local authorities do their duty?
Lord Hunt of Kings Heath: Yes, my Lords. I believe that the Children Act 1989 contains sufficient powers for local authorities to undertake the task. I want to ensure that local authorities carry out their responsibilities.
Baroness David: My Lords, I confess I am disappointed by the Minister's response. It seems to me to be slightly complacent. However, he obviously intends to do a bit more about getting local authorities to do their duty. So, rather reluctantly, I will read again what he said and consider whether I can accept it, but for the moment I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Clement-Jonesmoved Amendment No. 17:
After Clause 7, insert the following new clause—
COMPLAINTS IN RESPECT OF INDEPENDENT HOSPITALS
(" .—(1) The Commission shall institute procedures by which dissatisfaction with the dealing of complaints by independent hospitals may be expressed.
(2) In the event that the Commission is satisfied that a complaint is upheld it shall be entitled to take account of such complaint in exercising any of its duties under this Act.
(3) In the event that the Commission is satisfied that a complaint has not been properly dealt with by an agency or establishment it shall refer the matter to the Health Ombudsman.").
The noble Lord said: My Lords, it is with some disappointment that I speak to this group of amendments. As the Minister will have noticed, they are identical to the amendments tabled at Committee stage. They are a mixed bag of various ways in which an independent complaints system could be assured for patients in independent healthcare.
There is considerable concern among both management bodies, such as the NHS Confederation, and professional bodies, such as the BMA, that there is no proposal currently before the House for the setting-up of an independent body to hear complaints, or to compel independent healthcare establishments to arrange for an independent system of hearing complaints. Discussions are going forward with a wide range of interested parties to secure that there should be such a body agreed between all the players in private healthcare.
I had anticipated that at this stage the Minister would bring forward an amendment designed to provide such an independent element. Indeed, his colleague, the Minister responsible for this area, Gisela Stuart, said:
"Under the new arrangements, all private hospitals must have proper complaints procedures in place. They must make it clear to patients what to do if something goes wrong. And we will introduce arrangements for independent investigations where patients are not satisfied with how their complaint was handled".
So I look forward to what the Minister has to say on this subject, while holding any fire that we may wish to pour on him, so to speak. I beg to move.
Lord Hunt of Kings Heath: My Lords, I am sorry that the noble Lord is disappointed. I hope to reassure him that we take complaints very seriously and that within the framework of the Bill we can deal with them to his satisfaction.
I begin by confirming that it is definitely the Government's intention to make regulations under Clause 21(3)(j) requiring all registered providers to put in place an internal procedure for dealing with complaints about their services. The regulations will include key elements of how that procedure should operate; for example, that all complaints must be logged, investigated within a certain timescale, and that the outcome of the complaint should be recorded. The commission will ensure, through inspection, that these procedures are operating effectively and to the satisfaction of complainants. Service users will be

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asked whether they are aware of the procedure; whether they have made use of it and, if so, whether they were satisfied with the outcome. We hope the majority of complaints will be satisfactorily dealt with in that way.
In answer to the noble Lord, Lord Clement-Jones, I recognise that there will be cases where the complainant remains dissatisfied. Indeed, there may be occasions where the service user does not want to use the internal complaints procedure, perhaps because there is no member of staff whom it is felt could be entrusted to report the circumstances of the complaint. In those cases we intend that the complainant be able to take their complaint to the commission itself.
The commission will have power to investigate complaints as an integral part of its regulatory functions and we will ensure that it is properly resourced to do so. In investigating complaints, the commission will be able to use its powers of entry and inspection as set out in Clauses 29 and 30. If it finds the complaint is justified it will be able to use its enforcement powers to ensure that remedial action is taken by the providers. As noble Lords will know, ultimately that could lead to prosecution or to the initiation of cancellation procedures against the provider. Where it has concerns about the professional competence of an individual, the commission can refer that person to the appropriate professional body; for example, the UKCC or the General Medical Council.
We envisage that these procedures will also be available to patients who receive independent healthcare regulated by the commission. It will have powers to investigate any matter relating to a breach of the regulatior or standard applying to the service. That means that the commission will be able to deal with all complaints including looking at whether there has been a failure in the clinical assurance systems that independent hostels have in place under Clause 21(3)(k). Where the issue is of an individual's clinical competence, as I have said, the commission will be able to refer such cases, as appropriate, to the relevant professional regulatory body. In our view that will provide complainants about independent healthcare with the assurance that remedial action will be taken to resolve matters with which they are concerned.
Amendments Nos. 17 and 40 propose that the health service commissioner should be involved in this procedure. As I believe I explained at Committee, we believe that the commission is the appropriate body to investigate complaints where a person is unhappy with how a registered establishment handled their complaint. I do not see a role there for the health service commissioner. The national care standards commission itself is independent of the providers and the commissioners of service. It has the enforcement powers to make sure that matters are put right where it finds that the complaint is justified. On that basis I hope that I have satisfied noble Lords in that respect.
Baroness Masham of Ilton: My Lords, before the Minister sits down, and with the leave of the House, perhaps I may ask him a question. Recently a Question
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was asked in your Lordships' House as regards the problem of female circumcision. Can the Minister say how the complaints procedure will take place should the matter occur in a private hospital? It might concern a member of staff who is the only person, apart from the interested parties, who knew that the procedure was taking place. Would they go to the police or through the procedure which the Minister has just explained?
Lord Hunt of Kings Heath: I would strongly recommend that the member of staff goes to the police.
Lord Clement-Jones: My Lords, I remain slightly confused by the Minister's response. I find it very helpful that he described the width of the powers that the national care standards commission will have. Indeed, he has developed quite helpfully some of the points set out in paragraph 24 of the paper Developing the Way Forward. Clearly, in a sense he has given an assurance that the commission will have overarching power and will not be limited in a sense by any doctrine of the exhaustion of remedies or whatever it may be. An individual can go straight to the commission which will have quite strong powers except as regards individual clinical competence. It is entirely appropriate that that matter should be dealt with by the professional bodies.
However, I am unclear as regards the situation where homes applying for registration have a particular form of internal complaints system, but no element of independence associated with it. I wonder whether a home will be registered in those circumstances and whether there will be any criteria by which the commission will judge the complaints system. I am particularly concerned because of the efforts being made by professional management bodies and others to construct a genuinely independent complaints system that will be available for the benefit of those care homes. It seems to me that we need some pushing from the Minister in order to secure a common system.
Lord Hunt of Kings Heath: My Lords, as I believe I have said already, the point here is that we shall make regulations under Clause 21(3)(j) requiring providers to put in place an internal procedure for dealing with complaints. Clearly, the regulations that we lay will be subject to consultation. As regards the terms of the procedures that we expect an establishment to operate, they will be very clearly set out. When the commission visits and undertakes its regulation, it will then be able to monitor whether individual establishments are operating the procedures effectively. What I cannot do at this stage is to go into the detail of what may be contained in the regulations.
Lord Clement-Jones: My Lords, I fully understand what the Minister is saying in this respect. However, he did not utter the magic word "independent". He talked about an internal system of investigation. The nub of the point is that there is being constructed a very helpful system for independent complaints by doctors,

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managers, patients groups and insurers which could be rolled out across the whole independent sector if the regulations required that they did so. But if they require that there should simply be an internal complaints system and not an independent one, there will be a different situation. I believe that consultation should take place over what kind of independent system is being adopted and not simply what kind of internal system. If the Minister does not wish to say anything further at this stage, I shall withdraw the amendment. Clearly, further discussion should take place between now and Third Reading because further assurances are required.
Lord Hunt of Kings Heath: My Lords, I am very happy to take part in further discussion. I am at one with the noble Lord in wanting a rigorous complaints procedure which can be monitored effectively by the national care standards commission. There is no disagreement there at all. My reluctance is to go into the actual details of what may be contained in such a regulation.
Lord Clement-Jones: My Lords, I thank the Minister for that reply. Some lowering of the veil is required before Third Reading in order to prevent any further amendments being brought forward. Clearly, this is a matter of considerable importance. I suspect that there is a difference in concept lurking behind the consultation intention. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.15 p.m.
Earl Howemoved Amendment No. 18:
After Clause 7, insert the following new clause—
STANDARD ASSESSMENT PROCEDURES FOR CARE HOMES
("—(1) The Commission shall have the duty to define a standard assessment procedure and a standard set of criteria to be employed by local authorities in assessing the care needs of any person being considered for admission to a care home.
(2) The Secretary of State may by regulations require local authorities to implement the procedure and criteria referred to in subsection (1).").
The noble Earl said: My Lords, we come now to an issue that I raised with the Minister in Committee but which, as the weeks go by, is becoming ever more significant for the care homes sector as a whole. It is important for noble Lords to understand what is going on at the moment. Very large parts of the care homes sector are in crisis for broadly two reasons. The first is that unless one has a business with no borrowing or a very low ratio of debt to equity, one's business is likely to be unviable at current local authority fee rates.
The second reason is the Bill and all that ensues from it, including Fit for the Future. The prospect of minimum standards is casting a pall of uncertainty across the industry. The net result of both these phenomena is that the flow of capital into the market has, for all practical purposes, dried up. That means that any attempt by a care home to borrow money to
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carry out necessary improvements, perhaps to meet some of the anticipated minimum standards, is likely to be doomed to failure. The banks are simply not lending. In fact, they are trying to withdraw from the sector altogether. That in turn means that many care home owners are trapped. They cannot borrow against their main asset, the home; nor can they sell the home because it is no longer possible to value it as a going concern when there is uncertainty over whether it will meet the forthcoming minimum standards. Therefore, many care home owners find themselves with negative equity, which creates the trap to which I have referred. The only alternative to carrying on is bankruptcy.
Once the minimum standards have been set, we shall at least be able to say that an important element of the uncertainty has been lifted. But we shall still be left with the seemingly intractable problem of inadequate remuneration from local authorities. For those noble Lords who may imagine that this is simply the usual gripe from people who feel vaguely hard done by, let me make it clear what we are talking about. Many local authorities in the face of a very tight financial climate consciously attempt to restrict the flow into care homes of patients for whose costs they will be held responsible. The policy of keeping people in their own homes for as long as possible—a worthy aim in itself—is being stretched far beyond reasonable bounds, with the result that when individuals eventually reach a care home, their degree of need—or "acuity" as it is known—is such as to make them, all too often, high dependency cases.
Many of those entering care homes today would, a few years ago, have been sent straight to a nursing home. If we seek evidence of this, beyond that which we hear anecdotally from care home owners, we need only look as far as the statistics which show the average length of stay in residential homes. The average residential stay is no longer measured in years, it is down to about nine months.
Care homes are being asked to look after people with a high level of need for personal care and often nursing care, but are not being remunerated by local authorities for the cost of that care. They are not being paid for it because the assessment process—the process by which social services assesses an individual's level of need—is being fudged. A fee is set which bears no relation to the cost of providing the care. Whereas in normal circumstances a care home would be able to absorb some of the overhead by averaging out staff costs over all its residents, some of whom might need less care than others, they cannot do this if the only clients they are getting from local authorities are the high dependency ones, and not a mix of clients.
At the moment, the system lacks a transparent way of linking fee rates with the inputs needed to serve the needs of residents and of defining those inputs, preferably in advance, in a manner that is fair to all. I am sorry to say that many local authorities out there are abusing their dominant position by threatening care home owners with sanctions unless they agree to accept clients at the rates they are told will be paid.

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That is, of course, tantamount to blackmail. The care home owner knows that unless he goes along with it, referrals to the home will cease overnight. That is the climate of fear in which many home owners around the country find themselves living. It is not acceptable and something has to be done to stop it.
What can be done? Broadly, there are two avenues that the Government should pursue. First, they should increase substantially the funding streams available from NHS trusts to recognise the cost of nursing care for high dependency residents in care homes. I am not going to draw the Minister on this point today, important though the issue is, because I know that he will not be able to anticipate the response of the Government to the Sutherland report and the Coughlan case, which we understand may be forthcoming this summer.
There is something else that can be done now. A standardised assessment procedure should be put in place which local authorities are obliged to follow, together with a standard set of criteria, so that throughout the country there is a means of ensuring that persons in equal need will be assessed similarly, regardless of the local authority that is doing the assessing. The degree of care need will be transparently defined, preferably not just by a committee of social workers, but by doctors as well. That in turn should ensure that there can be no fudge over the cost of care required for care home residents.
I am sorry to have spoken at some length. But I hope that the Minister will recognise the critical importance of the issues I have raised, and that my amendment reflects a genuine wish to see a level playing field operating throughout the country for the good of elderly people. I beg to move.
Baroness Masham of Ilton: My Lords, perhaps I may ask a question. It is probably a stupid question. If the needs are assessed as nursing needs, should the people go to a nursing home? Should not the care homes refuse to take them?
Earl Howe: My Lords, under the rules of the House I do not believe that I am able to respond, so I shall not test the patience of the House. I think that my remarks covered that point.
Lord Hunt of Kings Heath: My Lords, clearly it depends on the actual wording of the certification in relation to the specific home which has been registered. That will specify whether it has been registered for nursing care.
Perhaps I may say that I recognise the issues raised by the noble Earl, Lord Howe. As someone who used to speak at conferences of the Registered Nursing Homes Association, I understand some of the pressures which that sector has been under. Equally, I do not entirely recognise the gloomy picture which the noble Earl put forward. Department of Health statistics show that there is a steady rate of turnover in homes of around 4 to 5 per cent per annum, which suggests that people are able in circumstances to sell those homes. While some homes are closing, I understand that new ones are
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opening, and that there is some evidence that banks are lending for new developments. I do not seek to underestimate the challenges that some homes will undoubtedly face in relation to the new regulatory requirements where improvements will have to be made. But in the medium to long term we shall see a sector in which quality and standards will rise and members of the public will ultimately receive a better service. Just as we must be concerned about the health of the sector as it is at the moment, we also have to bear in mind that the ultimate outcome will be a better service for the public.
I accept the point raised by the noble Earl that people who enter either residential care or nursing homes do so only when it is essential, and that there needs to be an assessment of needs. Those needs may be complex, as he has described in terms of high dependency, or more straight forward. Assessment is very important in terms of ensuring that members of the public who enter such homes receive the appropriate care, as the noble Baroness, Lady Masham, has pointed out.
Current guidance on assessment, issued by the Department of Health as practice guidance in 1991, has clearly not led to as much consistency in assessment and service provision as is desirable. Indeed, people with similar needs living in different parts of the country, or sometimes even in the same authority, may get a very different assessment or service response. To a degree, variation in service is acceptable as local authorities should, within reason, determine their own priorities with due reference to local needs, traditions, service patterns and resources, but I have no hesitation in agreeing with the noble Earl that current levels of variation between authorities go beyond what we might reasonably expect.
In response to this problem, the Government announced their fair access to care services initiative in the White Paper Modernising Social Services. That will provide a detailed framework for assessment, including an appreciation of the risks associated with identified need. The fair access guidance will be issued for consultation in the spring and a final version for implementation is planned for the autumn. Unlike the 1991 practice guidance, it is intended to issue the fair access to care services guidance as policy guidance, which means that local authorities should, by and large, follow what it says.
The implementation of fair access to care will lead to greater consistency in the way in which needs are assessed and services determined. The Department of Health, through its performance assessment framework and the work of the Social Services Inspectorate regional offices, will monitor the implementation and impact of the fair access guidance to ensure that it has the desired effect.
While the national care standards commission might play a part in helping to monitor and comment on the impact of the guidance, it would not be for the commission to develop that guidance. It is set up for regulation and it is not appropriate to require it to take on additional tasks such as this. However, through the

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fair access to care services and the regulation and minimum standards to be set, I believe that we will achieve a much greater uniformity of approach. I hope that that will reassure the noble Earl as to how this will operate in the future.
6.30 p.m.
Earl Howe: My Lords, I am grateful to the Minister for that reply. I look forward greatly to having sight of the guidance to which he referred. This is extremely good news. I am glad that the Government share my perception that at the moment people with equal levels of need are being assessed differently and are being subject to different staffing ratios in care homes depending on the local authority they are in. That cannot be satisfactory.
If I am not misrepresenting them, the Government's view of the care homes sector is that there is currently an oversupply of places and, in particular, an oversupply of sub-standard places. Although the noble Lord did not say this in terms, I believe that their view is also that market forces will take care of this matter within a reasonable period of time. Market forces are fine provided that the market is allowed to operate. At the moment, the market cannot operate because fee rates are rigged, as I explained, eligibility criteria are fudged and local authorities ignore best value principles by favouring their own homes even though those are more expensive than private homes. On the other side of the equation, unviable care homes remain open for business as a consequence of the owners being trapped by negative equity. It is not as simple as saying that the market will contract in the face of oversupply, leaving only the sound operators at the end. Even those better operators, who have upgraded and spent a great deal of money on doing so, are under severe pressure at the moment.
I do not intend to go on. I believe that the Minister's reply was a helpful one. I look forward to seeing more of his department's thinking over the next few months. In thanking the Minister again, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 9 [Inquiries]:
Lord Hunt of Kings Heathmoved Amendment No. 19:
Page 5, line 37, leave out from ("begun,") to ("may") in line 38 and insert ("the person causing the inquiry to be held").
On Question, amendment agreed to.
Lord Hunt of Kings Heathmoved Amendment No. 20:
Page 6, line 2, at end insert—
("( ) Subsections (3) and (4) apply in relation to an inquiry under section 35 of the Government of Wales Act 1998 into any matter relevant to the exercise of the Assembly's registration functions as they apply in relation to an inquiry under this section.
( ) In this section "registration functions" means functions under this Act in connection with the registration of persons in respect of establishments and agencies.").
On Question, amendment agreed to.
Lord Hunt of Kings Heathmoved Amendment No. 21:
Page 6, line 2, at end insert—
("( ) The report of the person who held the inquiry shall, unless the Minister who caused the inquiry to be held considers that it would be inappropriate to publish it, be published in a manner which that Minister considers appropriate.").
The noble Lord said: My Lords, during Committee stage, the noble Lord, Lord Laming, put down an amendment that would require the Secretary of State to publish the reports of inquiries held under Clause 9 of the Bill. He said that the findings of inquiries should be public documents as a matter of good practice. I have considered these arguments carefully and I believe that there is merit in them.
The Government are committed to the principles of public accountability and freedom of information. We accept that it is good practice for reports commissioned by Ministers to be published. We believe that the public have a right to be kept informed about the services that are provided or purchased through public funds. I am therefore pleased to bring this amendment before your Lordships today. It will require the Government to publish the reports of inquiries held into any of the regulated services, or into the way the commission has carried out its functions, unless there is a good reason not do so. In other words, the onus will be on the Government to publish inquiry reports and the clear expectation is that they would normally publish those reports except in exceptional circumstances. The kind of exceptional circumstances that we envisage are, for example, where the publication of the report might prejudice ongoing criminal investigations or proceedings. I beg to move.
On Question, amendment agreed to.
Clause 10 [Requirement to register]:
[Amendment No. 22 not moved.]
Clause 12 [Grant or refusal of registration]:
Lord Rixmoved Amendment No. 23:
Page 6, line 42, leave out ("12)") and insert ("(1A)").
The noble Lord said: My Lords, my recollection of Latin unseens in long-distant school days is that the second attempt was sometimes further from acceptability than the first. Certainly, it was with me. However, nil desperandum. My amendment is a variant on the one I tried a little half-heartedly at Committee stage, and owes something to a conversation with the Minister—although I have no promise of acceptance.
It seems to me natural logic that the body charged with granting or withholding registration should equip itself with all the accessible information before making up its mind. That information includes what interested parties have to say; and they will of course say nothing unless they are offered the opportunity to comment. Sometimes that information will encourage the registration authority to make further inquiries, or to refuse a registration. Sometimes it will prompt more careful monitoring after registration has been granted. Whatever the outcome, consultation on a selective basis offers better protection for vulnerable service users; and that is what I seek with my Amendments Nos. 23 and 24, which I believe avoid the NIMBY-type

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reactions feared by the Minister or, again recalling my Latin, if your Lordships prefer a classical substitute for NIMBY, and remembering my rusty Ovid of long ago: Procul Omen Abesto!—"far from us the omen"—does sound a little more dignified than "not in my back yard". I beg to move.
Lord Jenkin of Roding: My Lords, I wonder whether the noble Lord might prefer another line of Ovid: Odi profanum vulgus et arceo—I hate the vulgar crowd and I keep them at a distance!
Earl Howe: My Lords, with the leave of the House, that was Horace and not Ovid.
Lord Addington: My Lords, the amendment moved by the noble Lord, Lord Rix, appears to adopt the very reasonable concept that those who are concerned with these services should be consulted. I shall not follow the classical quotations—I have zero knowledge of them—which is perhaps just as well seeing how easy it is to fall into a trap. The basic concept of the noble Lord, Lord Rix, appears to be sound, and I shall listen with interest to the response of the Minister.
Lord Hunt of Kings Heath: My Lords, I was made to give up Latin after one year. Like the noble Lord, Lord Addington, I was rather lost by the previous exchange.
Essentially, these amendments would require the commission to consult relevant local bodies before granting an application for registration. I have difficulty in accepting the amendments. First, there is a practical problem. It may be easy enough to find out about local branches of well-known national bodies, such as Mencap, Age Concern or Scope, but there are plenty of small local self-help groups and action groups which would not be affiliated to a national body. The commission could not be expected to know about all of them. If we accepted the amendment, a local group might well seek to mount a challenge against a decision by the commission on the basis that it had not been consulted; nor is it clear what "local" means in these circumstances.
I understand that one of the main concerns of the noble Lord in moving the amendment is the requirement that the applicant must be a fit person, which is very important. However, in arriving at that decision the commission will be able to take account only of hard evidence, such as a criminal record or a listing under the Protection of Children Act. A local body may have concerns about a person; for example, it may be aware of rumours and unsubstantiated allegations. However, I do not believe that in those circumstances it would be appropriate for the commission to refuse registration on the strength of such unsubstantiated allegations. The commission would have to proceed on the basis of proper evidence. Although I am sympathetic to the amendments, I do not believe that it is right to accept them.
Lord Rix: My Lords, obviously I am disappointed, but the response is not unexpected. I am aware that the Minister has doubts about the practicality of the amendment. On the other hand, perhaps he will take the matter away and think about it between now and next Tuesday when the Bill receives its Third Reading. It may be possible to find wording which at least allows further filtering for the purposes of a person's suitability before registration is granted. I recognise that rumour, bad-mouthing and all manner of unpleasant things may be said about people in local communities. However, often there is no smoke without fire. I have in mind a number of people whom I would not consider to be suitable persons although I cannot pin anything on them, whether it be a criminal record or whatever. One just knows that they are not suitable persons to receive registration. If the Minister is prepared to give further consideration to the amendment and to deal with the matter either on the face of the Bill or in regulations, I shall be happy to withdraw the amendment.
Lord Hunt of Kings Heath: My Lords, I accept the invitation to look at it again. However, I cannot hold out much hope. While we shall make regulations in relation to determining the fitness of a person to work at an establishment, or for the purposes of carrying on or managing such an establishment, there are real difficulties in dealing with matters such as criminal records, listings under the Protection of Children Act, and the protection of vulnerable adults.
Lord Rix: My Lords, knowing that the Minister will look at this again, and no doubt write to me with his conclusions, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 24 not moved.]
Clause 19 [Urgent procedure for cancellation etc.]:
Lord Hunt of Kings Heathmoved Amendment No. 25:
Page 10, line 27, leave Out ("if the registration authority thinks appropriate,").
The noble Lord said: My Lords, Amendment No. 25 was tabled at Committee stage. I confess that when I was asked to justify the qualification,
"if the registration authority thinks appropriate",
in relation to a health authority, I was hard put to find any. Therefore, I am happy to table this amendment today. I beg to move.
Lord Clement-Jones: My Lords, I simply register my thanks to the Minister for tabling this amendment which clearly meets the point made in Committee. I am sure that the NHS Confederation and others will be duly grateful to the Minister.
Earl Howe: My Lords, I too thank the Minister for the obvious thought that he has devoted to this matter.
On Question, amendment agreed to.
6.45 p.m.
Clause 21 [Regulation of establishments and agencies]:
Lord Hunt of Kings Heathmoved Amendment No. 26:
Page 11, line 9, at beginning insert—
("(A1) Regulations may impose in relation to establishments and agencies any requirements which the appropriate Minister thinks fit for the purposes of this Part and may in particular make any provision such as is mentioned in subsection (1), (3) or (4).").
The noble Lord said: My Lords, in Committee there was a lengthy debate about the regulation-making powers under Clause 20 (now Clause 21) of the Bill. Noble Lords then raised a number of valuable points, and I am pleased to table this group of amendments today in response to them. The noble Lord, Lord Clement-Jones, welcomed the power to make regulations to secure the welfare of persons cared for, but he urged the Government to define more clearly what they meant by "welfare". He was concerned that the clause might not extend to the promotion of health and the protection of health. We have taken that on board and included a specific reference to those aspects of welfare in Amendment No. 28.
The noble Lord, Lord Rix, argued that there was a need for clearer prescription by way of regulations regarding acceptable behaviour management for adults as well as children,
"so that assault is no longer legitimised in the name of restraint".—[Official Report, 13/1/00; col. 791.]
I believe that that is absolutely right. There is a need for such regulations, and Amendment No. 28 will allow us to make them. I hope that in due course the noble Lord, Lord Rix, will be willing to work with us on the detail of the regulations.
Having been prompted by your Lordships to consider these issues further, we believe that it is important to ensure that the powers to make regulations to secure welfare should extend to persons cared for by all the various establishments and agencies regulated under Part II, not just care homes, children's homes and residential family centres, as at present. Accordingly, we have amended Clause 21(1)(e) and hope that it commends itself to noble Lords.
We believe that these amendments demonstrate the necessity to ensure that the regulation-making powers are sufficiently comprehensive. The effect of Amendment No. 26 is, therefore, to broaden the scope of the powers in Clause 21(1) to make it clear that the list of possible regulations is not intended to be exhaustive. Similar introductory words are already included at the beginning of subsection (3). Amendments Nos. 56 and 57 make similar provision in relation to Clause 45, which provides the power to make regulations about the way in which local authorities carry out their fostering functions. Finally, Amendments Nos. 30 and 35 to 39 are all consequential amendments. I beg to move.
Baroness David: My Lords, my name is added to Amendment No. 28 which is in this group. I do not believe that the noble Lord, Lord Rix, has spoken to
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it. I apologise for arriving a little late. I thought that Amendment No. 25 was being debated. I feel very strongly about Amendment No. 28. I am glad that the noble Lords, Lord Clement-Jones and Lord Rix, have also added their names to the amendment. I tabled the amendment as a result of a letter that I received from a Mrs Wright who lives in Cambridge. I hope that the Minister is listening; he is now.
Lord Hunt of Kings Heath: My Lords, I was confused. My noble friend refers to Amendment No. 28, but I believe that she is speaking to Amendment No. 29.
Baroness David: My Lords, I apologise to the Minister: I speak to Amendment No. 29. I received a moving letter from a Mrs Wright who lives in Cambridge. She had a child who suffered from meningitis at the age of 18 months. As a result the child was disabled and doubly incontinent and required total care, which her mother gave her for 10 years or more. She was then put into a home which proved totally unsuitable. The mother writes:
"It was clear that there was a fundamental problem from the outset. The senior social worker who selected the four children for the newly opened facility, had placed together an incompatible group. Two young people were wheelchair bound and unable to communicate, one other was ambulant and a little unpredictable, while the fourth had autistic-type problems, was hyperactive and prone to sudden violent and destructive behaviour. Both I and the parents of the other wheelchair bound child tried by every means available to have the situation sorted out. We failed, Eventually my daughter was bitten by the autistic child twice, even though staff were present in the room at the time. Neither they, nor the child himself should, in my view be held liable.
"There appears to be no clear reference to this problem in the Bill. I have discovered that client to client abuse is endemic in all systems where the most vulnerable are cared for unless they are in one to one (or more) care. I was a parent governor of a local special school where it also occurred. It affects all age groups. It affects day centres, sadly again, not covered by this Bill".
I understand that from today day centres will be covered eventually.
I want an amendment to the Bill which shows that there is some concern about peer to peer abuse, not only for children but also elderly people who can be very nasty to each other. The lady who wrote the letter suggests an amendment which I have altered slightly. It would help and give comfort to all those people who have suffered, as she did, from feeling so frustrated and in despair. I hope that the Minister can do something about the situation.
Lord Rix: My Lords, I should like to support the amendment in the name of the noble Baroness. Lady David, having also received correspondence from Mrs Wright outlining her direct family experience of poor care standards. It was, indeed, a horrifying and saddening letter.
One cannot fairly implicate people with emotional and behavioural difficulties for their attitudes and actions towards their peers, and one cannot guard against every eventuality. But one can expect establishments to put in place clear strategies to minimise client to client abuse, and one can expect

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establishments to follow clear and professional procedures should abusive situations arise. I hope that the Minister will be able to address this matter through regulations and guidance.
Perhaps I may take the opportunity to thank the Minister for Amendment No. 28 and for tidying up the regulation-making powers in relation to the control and restraint of adults, and the control, restraint and discipline of children. We have what we asked for, and that is always —nearly always—a pleasant experience. But I am old-fashioned enough to acknowledge the word "discipline" in relation to children, and experienced enough of the horrors which result when adults are treated like children to welcome the fact that discipline is not mentioned in relation to adults.
Mencap and I will be delighted to co-operate with the Minister in the drafting of the regulations.
Lord Clement-Jones: My Lords, I support Amendment No. 29 in the name of the noble Baroness, Lady David. With their great experience in these matters, the noble Baroness, Lady David, and the noble Lord, Lori Rix, have made an important case for an addition to the powers under this section. At the same time, I wish also to thank the Minister for the extensions he has made in terms of the definition of welfare and other aspects, in particular meeting the aims of the amendments tabled by the noble Lord, Lord Rix, in Committee. That is helpful.
I realise that it is easy to keep extending the provisions of the subsection. However, practical experience as demonstrated by the noble Baroness, Lady David, and the noble Lord, Lord Rix, indicates that we should consider seriously some measure such as that provided in the amendment.
Baroness Masham of Ilton: My Lords, having listened to the story told by the noble Baroness, Lady David, perhaps I may ask a question. Should not the wishes of parents be taken into consideration; and should social workers play God? It is a serious situation. The wishes of the parents should be considered. I should be grateful if the Minister will respond. Social workers have made so many mistakes lately, as reported in the press this week.
Earl Howe: My Lords, I express support from these Benches for Amendment No. 29. It highlights an issue of deep concern. I am sure that the situation of the lady, Mrs Wright, to whom the noble Baroness referred is one of many. I hope that something can be done to address these issues and that the Minister will be sympathetic.
Lord Hunt of Kings Heath: My Lords, first, perhaps I may answer the noble Baroness, Lady Masham. Yes, where appropriate the views of parents must be listened to. On her general point about social workers, yes, social workers do make mistakes, but before we rush to condemn the whole social work profession we should also acknowledge that many do a very good job under very difficult, trying circumstances. It is important to acknowledge that. Of course we want to
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drive up quality in the profession. That is why the Bill is so important. The general social care council will be crucial in ensuring a more rigorous professional approach to the profession, and will improve public confidence in the profession.
I am glad to acknowledge all the points made by noble Lords about a less publicised aspect of abuse but none the less a disturbing one. The phenomenon which I understand is called peer abuse is, I am afraid, not uncommon. Nor is it confined to establishments where people with a history of violent behaviour are cared for, although the risks may be greater in such settings. Both my noble friend and the noble Lord, Lord Rix, have drawn attention to specific cases raised with them.
All of us would have to sympathise very much with the concerns of that mother as to how her child could have been mistreated by another child in the home without something being done to prevent it or deal with it. I assure my noble friend that we are very much aware of the issue and are committed to ensuring that the regulatory system recognises and is able to tackle this aspect of abuse. We intend to address the issue through regulations. We shall require care homes, children's homes and residential family centres to have proper procedures in place to guard against peer abuse. It will be necessary for them to ensure that all staff are made aware of individuals with physically or verbally abusive behaviour. It will be important that staff take all appropriate steps to prevent harm to other service users, ensuring that service users are not put at risk of harm for whatever reason. That will be a central tenet of the commission's regulatory activity.
We have not yet started work on the content of the regulations. We shall want to draw on good practice where it already exists. For example, I am aware that some schools have already produced excellent protocols for dealing with bullying and that in the education field enormous advances in containing bullying have taken place in the past few years. We may well be able to draw on that progress. But, of course, as with all our regulations we shall consult widely with service users and we should welcome contributions to the debate from noble Lords.
On my noble friend's proposed amendment, the Bill as drafted already allows for such regulations to be made. Clause 21(1)(d) provides powers to make regulations to secure the welfare of service users. It is the Government's intention that this power will be used to safeguard service users from abuse, whether it is perpetrated by staff or by other service users.
I am most grateful to my noble friend for raising this issue. I hope that the assurance that I have given will allow her to withdraw the amendment.
Baroness David: My Lords, before the Minister sits down, perhaps I may ask whether any kind of complaints procedure will be available for parents if they cannot get their complaints acknowledged or anything done about them.
Lord Hunt of Kings Heath: Yes, my Lords. I believe that that is covered by wider work within the whole social care field. We are strongly committed to having a robust complaints procedure.
On Question, amendment agreed to.
7 p.m.
Lord Hunt of Kings Heathmoved Amendments Nos. 27 and 28:
Page 11, line 16, leave out from ("in") to end of line 17 and insert ("an establishment or provided with services by an establishment, an independent medical agency or a domiciliary care agency;").
Page 11, line 34, at end insert—
("( ) Regulations under paragraph (d) of subsection (1) may, in particular, make provision—

(a) as to the promotion and protection of the health of persons such as are mentioned in that paragraph;

(b) as to the control and restraint of adults accommodated in, or provided with services by, an establishment;

(c) as to the control, restraint and discipline of children accommodated in, or provided with services by, an establishment.

( ) Regulations under paragraph (e) of subsection (1) may, in particular, make provision—

(a) as to the promotion and protection of the health of children such as are mentioned in that paragraph;

(b) as to the control, restraint and discipline of such children.").

On Question, amendments agreed to.
[Amendment No. 29 not moved.]
Lord Hunt of Kings Heathmoved Amendments Nos. 30 to 32:
Page 11, line 35, leave out ("also").
Page 12, line 21, leave out ("or independent clinic") and insert (", independent clinic or independent medical agency").
Page 12, line 23, leave out ("the establishment") and insert ("or for the purposes of the establishment or (as the case may be) for the purposes of the agency").
On Question, amendments agreed to.
Baroness Barkermoved Amendment No. 33:
Page 12, line 24, at end insert—
("(1) make provision requiring the person who carries on, or manages, an independent hospital or independent clinic to ensure procedures, agreed with the medical practitioners working in that establishment, are in place to implement clinical governance in respect of that establishment").
The noble Baroness said: My Lords, the purpose behind this amendment is to return to the question that we raised in relation to Amendment No. 14; that is, to establish that clinical governance is observed in the independent healthcare sector. We talked earlier about the fact that the lines between residential and social care are becoming increasingly blurred. We have spoken previously on these Benches about the growing incidence of clinical care that occurs in non-clinical settings. We return to that matter here.
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There is one particular reason why I rise to move the amendment at this stage. Increasing numbers of elderly people who are mentally frail are living either at home or in residential homes. Increasingly, they require clinical care which is not given in a clinical setting. The purpose of this amendment, which is promoted by the BMA, is to ensure that a responsibility exists for maintaining standards of clinical governance in those settings.
One effect of Modernising Social Services is that a great many more independent care providers supply services to people who are highly dependent and who need clinical services to be delivered to them in those settings rather than in hospitals. Therefore, we are making yet another attempt to ensure that equality of clinical governance exists in the different settings in which people receive care. Having given a favourable response to Amendment No. 14, I hope that the Minister will be able to do so on this occasion. I bee to move.
Lord Hunt of Kings Heath: My Lords, there is no doubt that this is an important matter. I believe that if one evaluated the current regulatory system, one would come to the conclusion that one of its main weaknesses is that the Registered Homes Act 1984 concentrated too much on facilities and equipment and never really got to grips with issues relating to healthcare quality. I believe that officers who attempted to inspect and operate the regulatory system did their best to ensure that they covered clinical areas. However, it was never satisfactory because of the way that that Act was written.
I believe that Clause 21(3)(k) is very important in that respect. It provides for regulations to be made requiring independent healthcare providers to have arrangements in place to ensure that the services they provide are of appropriate quality and meet appropriate standards. In developing those regulations and standards, regard will be had to various quality assurance programmes and initiatives which are in place or are planned. Those include the implementation of clinical governance in the NHS, the Supporting Doctors, Protecting Patients White Paper, the GMC's work on revalidation of doctors, and the work of NICE and of CHI.
Much of that work is to be developed over the next 12 months through consultation. However, we envisage that the type of clinical accountability system that healthcare providers must have in place will need to comply with quality assurance requirements, which include arrangements for the audit and review of clinical practice, the identification and management of clinical risk, and the keeping of clinical records. It is our intention that those measures will help to ensure that appropriate safeguards and quality of care are provided for patients.
I turn to Amendment No. 33, which proposes that regulations are made to put in place clinical governance through the regulatory system. I have no arguments at all with the sentiment of that. Indeed, as I have said before, and as one sees if one looks at the

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recent scoping paper, the most serious criticism of the current regulatory system is its lack of scrutiny of clinical quality. This Bill will change that.
The regulations and standards that I have mentioned will yet out clear requirements for private and voluntary healthcare providers to have in place systems for ensuring full accountability for clinical services and qualities. That is very important. We shall require the registered persons to have satisfactory procedures in place for auditing the quality of healthcare delivered in their hospital or clinic and for spotting potential problems and dealing with them appropriately. I believe that a past problem has been that a person who runs a private hospital has, in effect, been able to say, "You can't talk to me about the quality of care. Your contract was with the consultant. All I do is rent out the facilities". Clearly, that is unacceptable. I can assure noble Lords that we shall require full and proper accountability for the services provided.
My own thought regarding the noble Baroness's amendment is that it is unnecessary because essentially it is a reworking of the current Clause 21(3)(k). The reason why we have not used the term "clinical governance", as the noble Baroness has done, is simply that we did not want to create unhelpful confusion regarding the clinical governance system in the NHS. However, I hope that the noble Baroness will be assured that we want to ensure, as much as she does, that clinical standards are of the highest order.
Lord Jenkin of Boding: My Lords, before the Minister sits down, perhaps I may ask him a question. He said something that I found very strange: that one of the weaknesses of the Registered Homes Act was that it concentrated on physical facilities and not on the quality of care. Does he recognise that precisely the same criticism can be addressed at the consultation paper Fit for the Future? under the heading "Modernising social services", and does he recollect that I pointed out in Committee that exactly the same fault existed there? That was drawn to my attention by the Registered Nursing Home Association, which rather liked what I said.
Lord Hunt of Kings Heath: Yes, my Lords, I certainly recollect that. I believe that at the time I said that we had taken very careful note of the comments that came back to us in relation to the consultation. As we come to prepare further drafts of the regulations and the national minimum standards, we shall be very careful to take on board those points. I believe that it is important that, while some of the debate about Fit for the Future? concerned room sizes—room sizes are one factor in all this—it is clearly important that the overall outcome relates to the quality of care.
Lord Jenkin of Boding: My Lords, the Registered Nursing Home Association wrote:
"Our Vice President, Derek Whittaker, was a member of the Steering Group set up by the CPA. With some 20 years involvement as an owner of a nursing home he had a lot of
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experience to offer as a practitioner, but repeatedly found himself frustrated by the failure of the group to he prepared to listen to any alternative view".
He had been constantly trying to say that it was the quality of care that mattered, not the number of plugs in the wall, and he was not listened to.
Lord Hunt of Kings Heath: My Lords, I know Mr Whittaker and I have great respect for his views. All I was saying was that the Government have taken very careful note of the comments that have come back as a result of the Fit for the Future? consultation. While physical standards are important—and it is worth making the point that previous governments have also required standards in relation to room sizes —I very much accept the point that, at the end of the day, it is quality which counts. Our endeavour, through the regulations and the national minimum standards, will be to ensure that that comes through in the regulatory process.
Baroness Barker: My Lords, I take a great deal of heart from the Minister's response. I believe that he shares our concern about the emphasis being on quality of care rather than physical standards.
However, I return to a point made by the noble Earl, Lord Howe, in relation to one of his earlier amendments. People who are now being cared for in residential and nursing homes are of a greater degree of frailty than ever before. Care providers realise that for many older people, particularly those who are mentally frail, moving them from the establishment in which they live is seriously disadvantageous to their health. Therefore, increasingly, clinical treatment will be given in those establishments.
However, I take heart from what the Minister said. I shall not press the amendment at this stage. However, I suggest to the Minister that as clinical governance becomes, perhaps, the guiding force in the provision of local services, we may well find that work on the ground is ahead of the Government and that clinical governance will be applied more widely. However, I take on board the points that the Minister made and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 34 not moved.]
Lord Hunt of Kings Heathmoved Amendments Nos. 35 to 39:
Page 12, line 25, leave out ("also").
Page 12, line 26, leave out paragraph (a).
Page 12, line 30, leave out ("such") and insert ("children's").
Page 12, line 38, leave out ("such") and insert ("children's").
Page 12, line 39, leave out ("subsections (1) and (3)") and insert ("this section").
On Question, amendments agreed to.
[Amendment No. 40 not moved.]
7.15 p.m.
Clause 22 [National minimum standards]:
Earl Howemoved Amendment No. 41:
Page 12, line 47, at end insert—
("( ) In preparing or amending the standards set out in the statements, the appropriate minister shall consult any person whom he considers it appropriate to consult.").
The noble Earl said: My Lords, we move to a pair of issues which I raised in Committee and about which I feel increasingly exercised relating to the setting of minimum standards; namely, the case for consultation and for parliamentary scrutiny.
In moving Amendment No. 41, I shall speak also to Amendment No. 42. Since our debates in Committee, a lot of water has flowed under the bridge in the sense that the consultation exercise on Fit for the Future?has now been concluded and the Government have had a considerable further period in which to reflect on their approach to minimum standards for care homes.
I do not wish to confine my remarks purely to care homes because the ramifications of the amendments run much wider. But care homes are a good place to start.
When speaking to an earlier amendment, I mentioned the huge pall of uncertainty that has descended on the care homes sector in the wake of Fit for the Future?. In a sense, some of that uncertainty was an inevitable price to pay for any honest attempt—and I accept that this is an honest attempt by the Government—to raise standards in care homes. What has been unfortunate with this particular exercise, with the greatest respect to those responsible for the CPA proposals, is that what emerged from it, taken as a whole, was neither practicable nor balanced. As I said previously, the suggested CPA standards were too numerous and, in some cases, were over-prescriptive. Others, such as the staffing ratios, were ill thought through.
The signals emanating from the Department of Health in recent weeks have suggested that those concerns have been fully taken on board and that what will emerge—it is hoped, quite soon—will be something a good deal more manageable and considered. Perhaps the Minister will enlighten us on that if he is in a position to do so.
But, at the end of the day, there are lessons to be learnt. One is that the whole process of setting minimum standards may have a profoundly destabilising effect on an industry. The Government's view appears to be that given a transition period of a few years, most care homes willing to upgrade will be able to do so. A transition period of five years has been talked about, albeit unofficially.
But it is no good talking of a five-year period of grace when the reality is that lending institutions and providers of capital will not contemplate lending further money to the bulk of the sector, at least until existing debt—typically long-term money of 10 to 20 years' duration—has been repaid.
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Furthermore, lending institutions need good security. While some flexibility in enforcing minimum standards may be good in certain circumstances, there is another side to that coin. How is a bank supposed to know whether a care home represents good security if there is continuing uncertainty over whether or not it meets the standards? The way Clause 22 is framed means that such uncertainty is bound to occur. What kind of a standard is it that is neither a regulation nor mandatory but which, in some as yet undefined way, must be taken into account? Will the Minister comment on that?
All the minimum standards which issue from this Bill, not only those that relate to care homes but those for boarding schools, independent hospitals, agencies and so on, will be of the most profound significance for those sectors of the care and healthcare industries. The biggest single question that arises from them will be the question of who pays. So far, we have not had much reassurance on that question from the Government.
I am concerned about the ethics of a Bill which imposes new requirements on individuals and businesses, requirements which have the potential to put those people out of business, a Bill which contains no provision to contribute to the costs of meeting those requirements and which allows for the requirements to be imposed by a Minister at the stroke of a pen without any reference to Parliament.
To a layman, there would seem to be human rights implications here but we are assured by the Government that that is not the case. However, at the very least, Parliament should be afforded the opportunity, if it so chooses, to debate each set of minimum standards. It is simply not adequate for the Minister to say, as he did in Committee, that parliamentary scrutiny of the minimum standards is unnecessary when the regulations on which they are based will already have been laid before Parliament.
In my respectful submission, that is no substitute for Parliament being able to sanction the detail and to ratify measures which, as I have explained, will be of the deepest significance for the registered services in question.
The Bill makes no provision for consultation. I do not regard that as acceptable. If the Government intend to consult anyway, as any reasonable government would, why do they not put that on the face of the Bill? The amendment is framed in such a way as to give the Secretary of State discretion to consult only a limited circle of organisations in the event of changes of a very minor nature being proposed. I hope that the Minister will take on board the concerns that I have expressed. I beg to move.
Lord Clement-Jones: My Lords, I want to indicate agreement with the spirit of these amendments particularly since, unlike similar amendments in Committee, they go to the process rather than to the content of the regulations. The process is the key here.
In relation to the Fit for the Future? draft standards, which I support, I do not believe that it is at all subversive to believe that the process by which they are

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put into practice should be absolutely clear and put forward in the way that the noble Earl, Lord Howe, suggested.
There are major implications, and certainly I have had a degree of correspondence since Committee stage. They concern access to care homes, availability, costs incurred by such homes, and indeed the local employment which is provided by such care homes. All these matters are raised by the nature of the standards themselves. It is therefore absolutely key that there should be a proper consultation process. It seems to me that a process such as that described by the noble Earl is certainly one way forward. I hope that the Minister, even if he cannot accept this particular modus operandi, will consider something rather stronger than the provisions in the Bill at present.
Lord Jenkin of Roding: My Lords, perhaps I may put a question to the Minister. In an earlier amendment, my noble friend on the Front Bench spelt out what is clearly a very serious situation facing the owners of many of these care homes. I shall not weary the House by repeating what he said, because he has referred to the subject again on this amendment.
On the earlier amendment, the Minister said that he did not think that the picture was as black as it had been painted. I think that he owes it to the House to give us some evidence of that. The question I want to ask is: is he satisfied that those who are making this complaint—I am sure that complaints are being addressed to his department and not only to the Conservative and Liberal Democrat Front Benches— are giving accurate figures of the financial position which they face? I ask that question because some years ago, as a constituency MP, I found myself caught up in a dispute over the amounts that the local authorities were paying for residents in private care homes and what the care home owners were saying that it cost them to provide those services.
The complaint rather fell to the ground when, one after another, the home owners said, "We are not disclosing our figures" and I said to them, "Well, it is no good coming to weep on my shoulder. Unless I have the figures I carrot pursue the claim either with the local authority or with the Secretary of State". I came away with the impression that I was not being told the whole story and that in fact they were doing rather better than they were prepared to admit. They may have found that their margins were under pressure, and that was why they were complaining.
So the question I ask is: given the seriousness of today's situation, which seems to me to be of a completely different order of magnitude, is the Minister now satisfied that the correct figures are being disclosed and, if they are not, should not the department be actively pursuing the matter so that the Government can be satisfied that their rather more optimistic noises—more optimistic than have come from this side of the House—may well be justified?
When the Minister responded earlier, he quoted figures of the number of homes that are being bought and sold. 'With the greatest respect, I am not sure that
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that meets the case. If people are having to sell in substantial numbers, they may find somebody, some new person, who says, "I can make a go of this and I will take it on" whereas the truth of the matter may be that at the end of the transaction he may be in exactly the same position as his predecessor. The Minister did not laugh this off, but one can underestimate the seriousness of what appears to be affecting this sector at the moment. The real worry is that if the number of beds decline at a time when the population is ageing and its needs are growing, that has very serious implications indeed.
Lord Hunt of Kings Heath: My Lords, I certainly did not intend to underestimate the challenges and problems, financial or otherwise, that are faced by a number of care homes; indeed not. I know the problems that they face and I accept that, in addition, they will have to prepare to meet new requirements under this Bill. Clearly that presents some major problems, but I was trying to give a balanced picture of the market in care homes.
We might argue about whether turnover is a sign of people being forced to sell up or a sign of some buoyancy in some parts of the market. However, I understand that banks have been lending to companies to develop new homes. Part of what we are seeing at the moment is a restructuring of the care home market, with some of the smaller individually-owned homes finding themselves in great difficulties, whereas some of the companies which are developing chains of homes, so to speak, seem to be able to survive, prosper and cope with the regulatory conditions. However, I will dig further into this situation to see whether I can provide the noble Lord with some more information as to our own understanding of how the market stands at the moment.
It is relevant to that issue that the noble Earl, Lord Howe, has raised this afternoon the issue of the impact of the regulatory system (in terms of cost) to the care homes. I repeat the assurance that I gave in Committee: that, as the noble Earl suggested, the implications of those increased costs would be taken into account during the Comprehensive Spending Review.
Perhaps at this stage I might also respond to the points made about Fit for the Future? My honourable friend Mr John Hutton has already indicated that the staffing ratios set out in Fit for the Future? will not be adopted. He has also given reassurances that reasonable time-scales will be set for homes to meet the final standards that will be required through the new regulatory pattern. I hope that this indicates that we understand the challenges that care homes will face under this new regulatory regime, but again I have to emphasise that we are engaged in driving up quality for many thousands of people in such homes. We need to take a balanced approach.
I turn now to the specific intent of the amendments. A set of national minimum standards will be needed for every type of service to be regulated or inspected by the national care standards commission. Work is already proceeding on developing those standards, as

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your Lordships will be well aware. I said in Committee that the Government are committed to consulting on all these sets of standards, and consultation will take place at ordered stages during the development of those standards. There will be consultations with key stakeholders, including the service users themselves, on the formulation of the standards. Once the draft is completed, we shall publish it and carry out a comprehensive consultation exercise, as we have done in relation to Fit for the Future? It is inconceivable that we would publish a set of national minimum standards without consulting about them first. I do not believe that the amendment is necessary, but I appreciate that it might be important for a visible indication to be made in this area. I am prepared to look again at this matter with the aim of tabling an amendment at Third Reading.
The noble Earl has also tabled an amendment that would require the national minimum standards to be laid before Parliament before they are published and to be subject to the negative resolution procedure. I have again listened carefully to the noble Earl's arguments, but I cannot agree that they are necessary, as I explained in Committee. The standards are based on the regulations made under Clause 21. They illustrate and amplify those regulations, but it is the regulations themselves which set the framework and which will be subject to parliamentary scrutiny. I hope that the noble Earl will be prepared to withdraw this amendment.
7.30 p.m.
Earl Howe: My Lords, I am grateful to all the noble Lords who have spoken in this debate and I should like to thank the Minister for what he has said on my amendment relating to consultation. I fully accept that it is inconceivable for this Government and, indeed, any future government that I can imagine, not to consult on such a matter. On the other hand, as the Minister will know, the undertaking of any one government is not binding on future governments and it does no harm to put such a provision on the face of the Bill. I am grateful to the Minister for offering to consider the matter.
I am afraid that I have more difficulty with his comments on my other amendment relating to parliamentary scrutiny. As I understand it, the regulations that will receive parliamentary scrutiny will be extremely broad brush. They will not contain anything like the kind of detail proposed in Fit for the Future? When those regulations are laid, no one will object to the concept of minimum standards. The principle of minimum standards is one on which all of us here are keen. It is what lies within; it is the devil in the detail. I am not convinced by the Minister's remarks. I should like to consider the matter further between now and Third Reading. Perhaps the Minister would be kind enough to see me privately on the matter. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 42 not moved.]
Lord Burlison: My Lords, I beg to move that further consideration on Report be now adjourned. In doing so, I suggest that the Report stage begin again not before 8.32 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Bank of England: Intervention in Foreign Exchange Markets
7.31 p.m.
Lord Blackwellrose to ask Her Majesty's Government what policy criteria they would apply before directing the Bank of England to intervene in foreign exchange markets, and what are the criteria and the budget provision under which the Bank of England may use its discretionary power to intervene in foreign exchange markets.
The noble Lord said: My Lords, I thank the Minister for taking time to respond to the debate at a time when I know that he is busy on other matters going through the House. I thank other noble Lords for joining me in the debate.
The Government's foreign exchange policy is a critical area of economic management; one which does not always receive as much attention as other areas of economic policy which come more frequently before both Houses. However, a number of matters have led to the exchange rate policy being brought to the forefront of attention recently, which makes it appropriate to debate the policy in this way. The first is the pressure on the Government which has arisen from what is referred to as the "strong pound" or the "strength of the pound". I believe that it might more properly be referred to as the "weakness of the euro". The pressure from the strong pound has led to a number of questions in this House where noble Lords have called on the Government to intervene in the foreign exchange markets to try to adjust the pound's exchange rate.
The Bank of England's Monetary Policy Committee during February had a discussion on the exchange rate objectives and on the possibility of intervention. We are approaching a period when the Government, having declared their intention of moving Britain into the euro, may well be faced with pressures to try to intervene to manage the exchange rate in the period up to the pound's proposed entry.
My objective in raising the Question is to invite the Government to make an on the record statement of how they now view their powers to intervene in foreign exchange markets and, if possible, to receive some reassurance from the Minister of the circumstances in which they would not intervene; the limits to intervention.

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The Government's powers to intervene in foreign exchange markets are extremely wide. They are set out in a letter from the Chancellor to the Governor of the Bank of England in May 1997. They fall into two parts. First, the Government themselves may intervene. The letter states,
"If the Government so instructs, the Bank, acting as its agent, will intervene in foreign exchange markets by buying or selling the Government's foreign exchange reserves. All such intervention will be automatically sterilised".
Not only can the Government direct the Bank of England to intervene thus, but the Bank of England in the same letter is given discretion to intervene on its own account:
"The Bank will have its own separate pool of foreign exchange reserves which it may use at its discretion to intervene in support of its monetary policy objective".
There is no definition in that letter or in other material that I have been able to find which clarifies the objectives by which the Government, or indeed, the Bank of England, may decide whether or not to intervene. For example, the Bank of England's website states of the foreign exchange reserves,
"These may be used, subject to policy objectives, to attempt to influence the exchange rate in case of need".
The terms, "subject to policy objectives" and "in case of need" present a fairly broad canvas. I am not happy in a situation where the open powers to intervene in foreign exchange markets of both the Government and the Bank of England are set without clarity of the objectives and some limit to set the accountability with which they are used.
My own view, which I hope would find wide agreement in the House, is that history shows that intervention by governments to try to determine the exchange rate as a policy objective is not only doomed to failure, but is likely to be hugely damaging as well as expensive. That is true whether or not the intervention is sterilised. There are two reasons why I believe that intervention is not at all a viable policy and why the Government should, if possible, repudiate intervention as a policy which they might adopt. One reason is theoretical, the other practical.
The theoretical reason is simply that within any economic system there are only a limited number of variables which the Government can try to determine independently. If the Government have a policy of controlling interest rates and monetary policy domestically and a policy of controlling fiscal policy, I do not believe that they can independently attempt to control the exchange rate as well. The exchange rate becomes a dependent variable. Any attempt to try to control the exchange rate will simply result in pressures building up which will burst out in some other direction in due course, whether it be in inflation or unemployment.
The practical reason for disavowing intervention is the size of our foreign exchange reserves relative to the floods of money going through the foreign exchange markets every day. In practical terms it is simply not possible for the Government to spend enough to make a major adjustment to the exchange rate which is sustainable. Experience suggests that whenever
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governments intervene, they tend to increase the amount of money normally flowing betting against them.
Despite those reasons for being cautious about intervention, governments have not been prevented from intervening on quite a large scale in recent history. Many noble Lords will remember the period during the 1980s, for example, when a policy of trying to set the exchange rate between the pound and the Deutschmark at around three Deutschmarks was followed. A number of people would suggest that that policy was partly responsible for some of the inflation which followed.
Similarly, in the period after the government joined the Exchange Rate Mechanism, the attempt to sustain the pound in the Exchange Rate Mechanism led to a period of intervention in the early 1990s which again was expensive and costly without any sustained benefit. In those and other situations, it is possible for governments to spend vast amounts of the nation's wealth for little effect. One of my concerns nowadays is that it may well be possible for governments to intervene in foreign exchange markets without it being readily apparent how much intervention is taking place in the accounts published simply by using forward contracts and intervention. Therefore, it is difficult to control the accountability of getting into situations where vast amounts of money are put at risk.
As we approach a period when the stated intention of the Government is to take the pound into the euro—a new fixed rate exchange regime by another name —I should like to ensure that the same temptations to intervene do not reappear. It would be attractive to think of the equivalent of a balanced budget amendment; for example, a Bill which stated that the Government and the Bank of England are simply not empowered to intervene beyond a certain limit over a period of time. However, we have no such law on the statute book at present. As I have said, the powers to intervene are open-ended and clear.
Given that the Government have those powers at present, I should like to ask the Minister to set out as clearly as he can the circumstances in which the Government believe it would be proper to consider intervention, and, directly or by inference, those in which he is prepared to declare that the Government would not consider intervention appropriate or proper.
I invite the Minister specifically to confirm that the Government would rule out the use of intervention to create what I would regard as a false convergence between the pound and the euro by trying to track the pound to the euro in any run-up to a policy decision on whether or not Britain will join the euro. There must be temptations for the Government, if pursuing a pro-euro policy in the years ahead, to see intervention as a tool. I should like the Government to declare, if possible, that they do not regard intervention to create false convergence as an appropriate use of those powers.

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Finally, under the letter from the Chancellor which I read to your Lordships, the Bank of England has discretion to intervene on its own account. I should like more clarity about the circumstances in which the Bank of England might use those powers to intervene over and beyond day-to-day technical issues of managing foreign payments and our obligations to the IMF, and so forth. What amount of money will the Bank of England be able to spend on its own account to intervene in foreign exchange markets without reference and authority from the Government?
I believe those are important issues of policy but also of governance and accountability as to how the powers are used. It is fairly unusual for the Government to have such wide powers and for so little attention to be focused on the objectives around them and accountability for the use of such powers. I look forward to the Minister's reply.
7.43 p.m.
Lord Desai: My Lords, we are grateful to the noble Lord, Lord Blackwell, for tabling this Unstarred Question. It is an important but difficult question. That is shown by the small number of participants, but perhaps I may say that only the select can talk on such subjects.
I am relieved by the way in which the noble Lord put his argument. I was somewhat worried that we might have a lobby for the manufacturing industry trying to get the pound down. I always dread that kind of debate. However, all I can do is to agree with the noble Lord, in many ways, and expand on my perspective on the problem.
I agreed with the noble Lord when he said that of the three main objectives of government policy—that is, inflation, employment and exchange rate stability—we can at most control two. That is what I call a "missing equation" problem. If we are in a fixed exchange rate regime, as the euroland is, inflation can be controlled but employment cannot be. Employment and the failure to control it is the variable which is taking all the strain of euroland.
There have been many experiments in the UK on this question. Our obsession with the foreign exchange position blighted economic policy through the sixties, seventies and eighties. I am glad that, following our exit from the exchange rate mechanism, we have decided that what really matters is to establish a credible regime for fiscal and monetary policy and then let the exchange rate do what it wants to do. Of the three objectives of government policy, the exchange rate is the least controllable by a national government, especially in today's markets, where, as the noble Lord stated, private investors can throw a wall of money at the Government if they try to lean against the wind. It is no use throwing good money after bad and putting your nose out of joint.
It is particularly interesting to note that my right honourable friend the Chancellor strengthened the credibility of monetary policy by his decision to give independence to the Bank of England as regards the
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rate of interest. He has also established a credible fiscal regime by his code of fiscal stability. Those two provisions having been put in place, it is but logical that the exchange rate should be allowed to find its own level. The noble Earl, Lord Northesk, may not say this but perhaps I may remind him that the person who forecast that the pound would be the strongest currency in Europe was none other than John Major, a couple of years after our exit from the ERM. At that time, everybody fell about laughing. Either he was lucky in his forecast or he was clever. However, it is true that our exit from the ERM taught us many lessons. One such lesson was that, if the UK is to have a credible economic policy, it cannot rely on external constraints and straitjackets. It has to internalise fiscal and monetary discipline, learn the lessons and set up institutions which are credible in the eyes of the world.
I do not mind saying that I fully supported our entry into the exchange rate mechanism. At that time I did so because I could not believe that any Chancellor of the Exchequer could be trusted to run a stable fiscal regime. At that stage I became an Ayatollah of balanced budgets. I decided that because we could not trust a UK chancellor, we had to put him in a straitjacket. As it turned out, for various reasons the ERM did not succeed. However, for the record, I have to say that it succeeded in lowering inflationary expectations in this country in the most drastic way possible—something which all through the 1980s we could not do. We had high unemployment yet still high wage settlements. We persisted with the high rate of inflation. The ERM experience, painful though it was, and perhaps because it was painful, knocked inflationary expectations on the head and we were then able to recover.
The secret of a good policy outcome today is partly that globalisation has reduced the rate of growth of manufacturing prices worldwide. We are therefore not importing inflation. Secondly, a stable fiscal and monetary regime is driving inflation down and inflationary expectations are in step with inflationary experience.
So far, so good. That immediately raises a question posed by the noble Lord: are there any conditions under which the Bank of England should intervene? The answer is "no". Should we nudge our currency towards Europe? I do not know what my noble friend will say from the Dispatch Box but I would say "no". These matters are no longer invisible; they are transparent and the markets will find out. Then they will punish one for messing around with the foreign exchange rate.
I also believe that the policy and financial conditions that have been laid down say, more or less, that it is the convergence of the cycle that matters a great deal. I do not think there is a desirable exchange rate which we ought to aim for on entry into the euro. This may sound somewhat heartless, but I have been saying that for the past year in meetings of the Peston committee. The high level of sterling has nothing to do with the balance of trade and so forth. Rather, it is the UK's good position as an attractor of foreign direct

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investment that has made the pound so strong. Short-term interest rates are high and there is some small influence from those rates. However, what really makes sterling strong is that the UK has become a very good attractor of foreign direct investment.
In the globalised context of today's markets, it is capital movements which are the major determinant of exchange rates, rather than trade deficits. Nevertheless, an obsession with trade deficits persists in many quarters, but I believe that that thinking is completely out of date. We now have an exchange rate that is effectively produced by movements of capital and, in that context, it makes no sense for people to say, "The Government should do something to bring down the pound". That is a silly way to approach the issue, for two reasons.
First, if we consider the pound/dollar exchange rate, it is clear that the pound is not particularly high. The pound has stayed at more or less 1.60 dollars for a long time. Indeed, it is a little weaker at the moment, down to 1.57 dollars. Secondly, it is only the pound/euro exchange rate where the pound looks so expensive. That has happened because the euro started at a ridiculously high level and was not neutralised by the European Central Bank, which was formed six months before the euro was launched. That mistake meant that the euro began too high and then declined to some 18 to 20 per cent below its starting level. However, that is the ECB's mess.
United Kingdom policy should declare itself free from the old habits of trying to steer the pound here, there or anywhere else. I believe that the Government have given a clear signal, in the absence of any reference to exchange rates in the Budget speech, that the UK Government are not going to intervene in those rates. That, I believe, is the correct policy.
7.52 p.m.
Lord Haskel: My Lords, I agree with both my noble friend Lord Desai and the noble Lord, Lord Blackwell. This is indeed a very important subject, and I thank the noble Lord, Lord Blackwell, for tabling this Question, because it has given me an opportunity to say that I hope that the Government will not be persuaded by noble Lords to intervene in the foreign exchange markets. If they do, I agree with what the noble Lord, Lord Blackwell, has said; namely, that the law of unexpected results will operate with a vengeance. That has been our experience in the past. I believe that is because we do not really understand the reasons why the foreign exchange markets fix a rate. As my noble friend Lord Desai has reminded us, the ERM experience should provide enough evidence of that.
Because we hardly understand the causes of the so-called strong pound, who knows what the effect of intervention will be? Perhaps the pound is not all that strong. Some say that it is the euro that is weak and that the rate of sterling against the dollar and the yen is competitive. But what is competitive? My noble friend Lord Currie, in his book on European monetary union, reminds us that in 1966 there were 11 deutschmarks to the pound, but by 1996 the rate
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was 2.3 deutschmarks to the pound. That represents an average depreciation of 5 per cent a year. Did this mean that our goods were 5 per cent more competitive each year? Obviously they were not.
So what is it that fixes the exchange rate of sterling? Is it interest rates? Certainly interest rates are an important factor, but, as my noble friend Lord Desai has reminded us, it is not a straightforward issue. Rates are much the same here as they are in the United States, but they are much higher than in Europe or Japan. For that reason, the relationship is uncertain.
However, interest rates are now the responsibility of the Monetary Policy Committee, which is an independent body. The committee's obligation is to keep inflation down to the Government's target of 2.5 per cent. If the exchange rate were to fall and inflation rise, the committee would be obliged to increase interest rates, which would probably affect the exchange rate and bring it back to where we started.
Perhaps the foreign exchange markets regard our management of the economy as sound enough to warrant a healthy exchange rate. Is it that the foreign exchange markets believe that the old days of boom and bust in Britain are over and that a more stable economy merits a higher exchange rate? I agree with my noble friend Lord Desai: perhaps we have convinced the foreign exchange market that devaluation is no longer a fiscal tool available to the Government. If this analysis is correct, it is not economics that we need to manipulate the exchange rate, it is market psychology. The exchange rate is probably a combination of all of these factors— political, economic, psychological—and they are constantly changing. That is why we really do not understand what is going on and what are the causes.
Even if we did understand, how would we intervene? The noble Lord, Lord Blackwell, made the point that sterling is a popular currency for short-term speculation. He reminded us that the world's annual trade in sterling is turned over every few days on the foreign exchange markets. We would need very deep pockets to make an impact on that.
Some say the commitment to join the euro at a given exchange rate is the answer. However, I am not sure about this. It seems to me that the reasons for joining the euro are surely much wider than merely lowering the current rate of exchange. Certainly the deficit on goods traded with the European Union rose from £4 billion in 1997 to £6.2 billion in 1999, but that is nothing compared with our deficit with the rest of the world. That deficit had gone up from £7.9 billion in 1997 to £20.4 billion in 1999.
I say no. The decision to join the euro has to be made in the interests of the economy as a whole. That interest is to benefit from the stability of being part of a big currency block. In short, I think it is the Government's task to inform the market, but not to control it.

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Now, I am afraid that I shall irritate my noble friend Lord Desai because I should like to say a few words about manufacturing. That is because I happen to think that talk of managing the exchange rate is a cynical diversion from the real task; namely, the task of modernising industry and encouraging it to be more competitive. What the Government can do is to encourage modernisation and competitiveness. They can set a good example. They can apply the old-fashioned stick and carrot; they can use exhortation and encouragement to make the economy more competitive.
I think that the Government are having a good shot at this. They are setting an example by encouraging the public sector to be more efficient and effective. They are improving our infrastructure. They are using the Internet in their relationship with industry. They have passed the Competition Bill and regulations directed towards competition. There are many carrots in the numerous schemes to assist and encourage the introduction of new technology, better management, innovation and training. In the medium and long term, that is the way to build a healthy economy: get productivity up rather than get the exchange rate down. That is because devaluation hardly works, even in the short term.
During the 1970s and 1980s—the heyday of devaluation—I worked in the textile industry. I can clearly remember that within hours of devaluation being announced, the telex machines would start chattering with messages from our overseas customers demanding price reductions equivalent to the devaluation, even on orders where the price had already been agreed. I usually met regular customers part way, otherwise they would just take discounts off repeat orders or the next season's order. The benefits were very short term and the whole exercise did nothing to increase our competitiveness. Indeed, it focused attention on price, rather than on price together with quality, design, delivery, service and innovation—which is how businesses thrive. Our Italian competitors actually learnt that lesson very well. As a result, Italy still remains the second largest exporter of fabric in the world after China.
Of course, the exchange rate is part of the competitiveness equation. But achieving competitiveness through managing the exchange rate is a diversion from the real task of achieving competitiveness through the management of business and economy. I urge the Government not to do it.
8 p.m.
Lord Newby: My Lords, I, too, am grateful to the noble Lord, Lord Blackwell, for initiating this debate. I am slightly depressed in one sense in that I have to agree with a large measure of his broad conclusion. I was hoping that we would have some root-and-branch supporters of old-style intervention in the debate. Unless the noble Earl, Lord Northesk, is about to spring a surprise, I suspect that we shall not.
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I agree with the theoretical proposition that it is impossible to control inflation, employment and the exchange rate all at the same time. It is rather like a partially filled balloon; when we try to push one part down, the balloon inflates in another. However, it is possible—here I disagree with the noble Lord, Lord Desai—to increase the levels of employment with a set exchange rate and a set inflation target by supply-side measures. The Lisbon Summit looked at ways in which, other things being equal, we could still improve levels of employment simply by improving skills levels and the workings of the labour market.
I disagree slightly with the noble Lord, Lord Desai, also when he says that there is one fundamental reason why the exchange rate is at a specific level. He mentioned the attractiveness of the UK as a haven for inward investment. But one of the things that struck me in one of our first meetings of the Monetary Policy Select Committee was the Governor of the Bank of England admitting that he could not explain why sterling was so high at that point. I agree with the noble Lord, Lord Haskel, that there is no consensus as to why, at any one point, an exchange rate is at a specific level. I have a lot of sympathy with the Keynesian view that animal spirits have a lot to do with the way that markets work and that they are, by definition, difficult to pin down.
But the one thing with which I suspect most people in this country, if not everybody in this House, will agree is that the effect of the current exchange rate is that the manufacturing sector is really hurting. Although Rover has had the headlines recently—one can argue about the extent to which Rover was affected by the exchange rate—all the evidence I have heard from my colleagues in another place in relation to manufacturing plant in their constituencies, whether in the far south-west, the Midlands or the north, suggests that the manufacturing sector is suffering greatly from the current rate of exchange. We saw today another big closure announced in Liverpool in the manufacture of boots and I suggest that the exchange rate was at work there.
Assuming that we agree that old-style intervention does not work, and that for the manufacturing sector an exchange rate somewhat lower than the current one is desirable, what can we do about it? The Government's policy, both to deal with the short-term manufacturing problem and as we look towards joining the euro, is what might be called reverse Micawberism; that is, not hoping that something turns up, but hoping that something turns down, and that the exchange rate will turn down of its own volition.
There are some reasons for optimism on that score. The growth rate of the American economy cannot carry on at its current level year after year. At some stage there will be a reversal and at that point the European economy will look stronger by comparison, though I suspect that sterling will suffer in the crossfire. However, economists have been predicting that kind of shock for some considerable time, some of them in apocalyptic terms. It has not happened yet and

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perhaps never will. Therefore, like Mr Micawber, I am not sure that the Government are wise to rely on it happening.
When looking to see what might be done, it may be remembered teat my noble friend Lord Taverne explained in this House on a number of occasions that there may be limited scope for sterilised interventions. I recommend to all noble Lords the research paper by Mr Bofinger, Options for the Exchange Rate Management of the ECB, which sets all that out in considerable detail. However, I have doubts as to how successful those interventions could be in the longer-term.
One thing that would have an immediate effect on the exchange rate, in the direction in which both the Government and manufacturing industry wish it to go, is an announcement that the Government intend to hold a referendum on joining the euro within a certain timescale in the next Parliament. Why should that have any effect on today's exchange rate? Because it gives certainty to the long-term position in respect of the movement of interest rates in this country. I am informed by colleagues in the City that the effect of such an announcement would mean that pension funds would greatly increase their holdings of long-dated French, German and other euro-zone bonds. That in turn would have the effect in the marketplace of bringing down the rate of sterling somewhat.
The problem we are faced with at the moment is that the lack of such a clear statement means that the Government are not credible when they talk in the changeover plan of working towards euro-zone membership. The truth is that in the City people do not believe the Government when they say that they have a bias towards joining early in the next Parliament. They believe that they will simply wait until after the next election, look at the polls, and take a view then; that there is no philosophical or practical commitment to that move. Therefore we are stuck with the high pound.
The answer to the question therefore of whether the Bank can intervene is "Yes, it can". But should it intervene? It almost certainly should not. I shall be interested in the Minister's suggestion of the circumstances in which they might consider intervening. I suspect the Minister will say that there are no intentions to intervene. What I should really like to hear is that the Government intend to set a timetable for a referendum to join the euro. But I hardly expect him to do that tonight.
8.8 p.m.
The Earl of Northesk: My Lords, I, too, am grateful to my noble friend Lord Blackwell for giving us the opportunity to debate this important matter, not least because we strolled through some of the ground at Question Time today.
It is one of the Chancellor's proudest claims that the Government's economic policies have ended the cycle of "boom and bust". A cursory glance at the overall figures for the economy could persuade the casual observer that the claim was justified. With due
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apologies to the noble Lord, Lord Desai, although I hope he will draw some comfort from my conclusions, there is another side to that coin. A number of sectoral interests—notably, manufacturing and agriculture—are in dire straits, substantially (but not exclusively) because of the strength of sterling.
As Sir Brian Moffat, chairman of Corus observed,
"Manufacturing industry in the UK is fighting for its very existence and will continue to do so. It is extremely efficient but the impact of the continued strengthening of the pound on its cost base is remorselessly undercutting its competitiveness".
Equally, while conceding that it is not as simple as the phrase implies, the "north/south divide" continues to be a running sore. As Nissan has observed:
"Should the present circumstances continue unchecked, the UK's manufacturing exporters, their export markets and our domestic markets, are at grave risk".
The company then added that its position in Sunderland "is particularly vulnerable".
Even Eddie George has conceded that,
"the worry is that it"—
that is, the strong pound—
"is producing real, sustained damage in some sectors of the economy".
In effect, the claim by the Chancellor of the Exchequer that "boom and bust" has been excised is credible only when it is applied to the economy as a whole. By definition, the economy is the sum total of its parts. To this extent, it is currently the product of the countervailing forces of a booming "new economy" set against a relative bust of the "old economy". This widening divergence—in effect, a form of internal boom and bust—is attributable in very great measure to the Government's failure to address the issue of the strength of the pound.
What all of this should tell us is that, in order to be prudent, government economic policy should be geared towards rather more than that which is expressed in the Minister's statement that:
"The best contribution that the Government can make to exchange rate stability, consistent with their objective of a stable and competitive pound over the medium term, is to maintain sound public finances and low inflation".—[Official Report, 1/3/00; col. 554.]
The Minister has used this Treasury mantra on more than one occasion. No doubt he will use it again tonight, as he did earlier today. He will also, no doubt, repeat yet another of the Treasury's mantras; namely,
"we do not underestimate the difficulties, particularly for manufacturing industry, of a strong pound".—[Official Report, 1/3/00; col. 555.]
But to what extent is it a consequence of the Government's economic policies that the pound's exchange rate with the euro is continuing to be, in the words of the Governor of the Bank of England, "unsustainable"? Moreover, in so far as the Chancellor of the Exchequer may have measures of control at his disposal, can the Government legitimately claim that they are managing the situation prudently?
The thrust of my noble friend's Question is to acknowledge that these difficulties exist and to inquire whether the Government believe that exchange rate

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intervention would represent an appropriate mechanism with which to tackle them. On the basis of statements from the Government to date—perhaps the Minister could confirm this again tonight—the straightforward answer would be a categoric and unequivocal "No". In January, the Minister said:
"I thought that I had already sufficiently clearly rejected the option of using a policy of intervention, sterilised or unsterilised, in the exchange rate".—[Official Report, 27/1/00; col. 1665.]
Then, only last week, he added that,
"we do not fully understand what makes exchange rates tick. Attempts to deal with them by direct intervention are likely to be doomed to failure".—[0fficial Report, 21/3/00; col. 138.]
Increasingly, and, no doubt, arising in part from Eddie George's insistence that the MPC's ability to influence the pound,
"is not zero but is not very great either",
the argument is being advanced that the way past this conundrum is to extend the remit of the MPC. But it has to be said that the relationship between interest and exchange rates, as the Minister conceded, is far from being an exact science. More than this, in evidence to the Treasury Select Committee in the previous Session, the Governor of the Bank of England was adamant that,
"we do not believe that we can target the exchange rate consistently with targeting inflation".
As the Chancellor of the Exchequer said in the same forum,
"anybody who thinks that either dropping the inflation target to replace it by an exchange target or running inflation and exchange rate targets at the same time is the right way to achieve domestic stability or convergence is failing to learn the lessons of the 1980s".
All good and well.
Sentiment is in favour of a policy of benign neglect of exchange rates. For our part, we on these Benches support that and acknowledge the part that a strong pound plays in sustaining the overall strength of the economy. As far as concerns any central intervention, all recent evidence, not least the break-up of the ERM in 1993 or the Bank of Japan's attempts to weaken the yen last year, endorse that view.
However, this is not to say that the Government's hands are entirely hog-tied. There are a number of measures in the fiscal jam jar, not least appropriate co-ordination of fiscal and monetary policy, which, when deployed with foresight, can have the effect of producing a better balance between the "new" and "old" economies and, indeed, of rationalising the north/south divide. This really would be "prudence with a purpose". As Geoffrey Dicks at Greenwich NatWest observed yesterday in his evidence on last week's Budget:
"Fiscal policy has started working against monetary policy rather than with it".
There is a wider context to this debate to which my noble friend Lord Blackwell alluded. There are those who suspect that the Government might be tempted, at some unseen point on the horizon, to use intervention as a mechanism to deliver artificial currency convergence and thereby shoe-horn the UK
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into the euro. In this context, Eddie George's comments on the matter leave no room for doubt. He said:
"I have made it crystal clear that if the Government wished us to lower the exchange rate for entry into Euro purposes, it would have to change our marching orders. We would not accept a situation where we were mandated by law to move in one direction and asked to move in another".
I trust that the Minister will confirm that this is wholly consistent with the Government's position. Having said that, I cannot resist making the point that, as observed by my noble friend Lady Hogg in the Financial Mail recently:
"Somewhat contradictorily, Ministers extol the virtues of a single currency while washing their hands of the pound's rise".
Until recently, sterling's strength was having a beneficial effect on Britain's economy in terms of containing inflation and, indeed, in terms of restructuring. However, current evidence—such as the fact that, for the first time in 20 years, hourly labour costs are now higher in Britain than in France—suggests that that period has now passed. To my mind, Anatole Kaletsky summarised the position well by saying that,
"in the absence of further remarkable productivity improvements, the strengthening of the pound may now be reaching the point at which it could do the British economy serious—and lasting—economic damage and trigger a balance of payments crisis".
In our view, noble Lords on all sides of the House quite rightly agree that intervention does not provide the solution to such problems. But the simple question remains: how, therefore, do the Government intend to address these problems?
8.17 p.m.
Lord McIntosh of Haringey: My Lords, I propose to pay the noble Lord, Lord Blackwell, the compliment of taking his questions literally. I do not propose to deliver a sermon on government economic policy and I do not propose to repeat the mantras; indeed, I do not need to do so, because the noble Earl, Lord Northesk, has done that for me. I have been saved from delivering a considerable part of my speech.
In his Question, the noble Lord, Lord Blackwell, asks, first,
"what policy criteria [the Government] would apply before directing the Bank of England to intervene in foreign exchange markets;
secondly,
"what are the criteria";
and thirdly, what is the,
"budget provision under which the Bank of England may use its discretionary power to intervene in foreign exchange markets"?
The noble Lord prefaced his speech on those questions by quoting the directions to the Bank of England, which, as he rightly said, are couched in very wide terms. That is simply because the policies may change over time; indeed, no policies are expected to endure for ever and it may be necessary for changes to take place in the actual direction of policy which do not necessitate a dramatic change in directions to the Bank of England. The noble Lord is right to say that we must be a little more precise now about our views.

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I propose to answer his questions by setting them in the context of the existing situation, and not to make forecasts for the long distant future.
Both the Bank of England and the Government hold reserves of foreign exchange. The Government reserves are held in the Exchange Equalisation Account (EEA), which is operated by the Bank as the Treasury's agent. In addition, the Bank manages its own pool of foreign exchange reserves which the MPC may use to intervene in support of its monetary policy objectives. Details of the EEA and Bank reserves are disclosed in the Treasury's monthly press notices entitled, UK Official Holdings of Foreign Currency and Gold, and in quarterly reports published jointly by the Bank and the Treasury. At the end of February UK government reserves totalled about £20,000 million while the Bank's reserves totalled about £5,000 million.
Therefore, the answer to the first question is that the major objective of the Government's macroeconomic policy framework is to deliver greater economic stability for the United Kingdom. It is clear that the Government would seek to intervene in foreign exchange markets only if they believed that such a move was consistent with their objective of delivering greater economic stability.
The noble Lord, Lord Blackwell, and others, including the noble Lord, Lord Desai, asked me about the issue of what the noble Lord, Lord Blackwell, called false convergence and what the noble Lord, Lord Desai, called a nudge towards the euro and asked whether there would be an additional condition under which we might be tempted to intervene in foreign exchange markets—in other words, if we thought that it would be advantageous to us in the move towards the euro. I think that the noble Lord, Lord Newby, referred to the same issue.
We would certainly not attempt to use foreign exchange intervention to achieve false convergence with the euro. The Government's policy on convergence and the conditions under which we would advocate entry into the euro are clear and have been repeated on many occasions. I certainly have no intention of either rewording or seeking to modify the statement of the Chancellor in October 1997 or the statement of the Prime Minister in February 1999. Therefore I think that we can put that issue firmly on one side.
I move on to the second and third questions of the noble Lord, Lord Blackwell. In practice, the sheer size of funds involved in currency markets severely limits the effectiveness of intervention. The Government's reserves amount to only a small fraction of the total size of the foreign exchange markets. Attempts to intervene are unlikely to have the desired effect in most cases—as I think all noble Lords have agreed—and could create uncertainty and instability in the market. In addition, they could raise doubts as to whether the Government were adopting a target for the exchange rate in addition to their inflation target, which is clearly not the case.
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We should also note that any intervention made by the Government would be automatically sterilised; that is, offsetting changes would be made to the money supply. This is because unsterilised intervention is effectively equivalent to changing interest rates, and so it would act against the Monetary Policy Committee's responsibility to set interest rates to meet the Government's inflation target, damaging the credibility of the UK monetary policy framework. However, both theory and empirical evidence indicate that intervention is even less likely to be effective when it is sterilised, thereby further limiting the scope for government intervention. I think that reflects the theoretical and practical reasons which the noble Lord, Lord Blackwell, set out in his speech.
As I said earlier, the Monetary Policy Committee may also use the Bank's reserves in support of its monetary policy objectives. That is the answer to the third question of the noble Lord, Lord Blackwell. This means that the Monetary Policy Committee would intervene only if it thought such a move would help it to maintain price stability and support the Government's growth and employment objectives. That is the answer to the second question of the noble Lord, Lord Blackwell. The MPC has considered the question of intervention on a number of occasions over the past three years and the minutes of its meetings provide a thorough account of the reasoning behind the decisions not to proceed with intervention. In particular, members of the MPC have also made the point that the size of reserves that the Bank commands is relatively small compared with the size of the market, limiting the effectiveness of intervention.
The issue of intervention was previously considered in detail at the February meeting of the MPC. The MPC again decided against intervention with some members arguing that,
"it was doubtful whether intervention would be effective as there was little evidence that the market consensus which sustained sterling at its current level was fragile".
It was also noted that a failed attempt to intervene would damage the MPC's credibility and that,
"to the extent that sterling's strength mainly reflected euro weakness, the MPC could do very little about it"
We went over that point at Question Time today.
Appearing before the Treasury Committee on 29th February, the Governor argued that intervention,
"would be ineffective and aggravate upward pressure on the pound".
It is clear that the scope for intervention is limited. The Government believe that artificial means of bringing down the value of sterling should be treated with considerable caution. I say "with considerable caution" as perhaps the understatement of the year! I am sorry to make my next point as the noble Earl, Lord Northesk, has already predicted that I would make it. I am grateful to him for that. Maintaining greater economic stability, based on low inflation aid sound public finances, is the best way to deliver

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exchange rate stability consistent with the Government's objective of a stable and competitive pound over the medium term.
Lord Bach: My Lords, I beg to move that the House do adjourn during pleasure until 8.32 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.25 to 8.32 p.m.]

Care Standards Bill [H.L.]
Consideration of amendments on Report resumed.
Clause 29 [Inspections by persons authorised by registration authority]:
Lord Hunt of Kings Heathmoved Amendment No. 43:
Page 14, leave out lines 32 and 33.
The noble Lord said: My Lords, in moving the amendment, I shall speak also to Amendments Nos. 44, 45, 46, 54 and 55.
This group of amendments is intended to address points raised by noble Lords during the Committee stage about the inspection powers in Clauses 29 and 42 of the Bill. The noble Lord, Lord Lucas, was concerned that the commission might not have the power to see records which are not held on the premises of the establishment or agency. He was also concerned that computer records might be held in an encrypted format and that the commission would not have the power to require copies in a readable form. I am grateful to the noble Lord for bringing these points to our attention and I am tabling Amendments Nos. 43 and 45 to correct them. Amendments Nos. 54 and 55 make similar changes to Clause 42, which deals with inspections of local authority fostering and adoption services.
The noble Earl, Lord Howe, and the noble Lord, Lord Astor, urged us to include a power for the commission to conduct its interviews with registered persons in private. Inspectors already have the power to interview members of staff in private and I agree with the noble Lords that this should be extended to cover managers and persons carrying on the establishment or agency. I have therefore brought forward Amendment No. 44.
Finally, the noble Lord, Lord Rix, raised the issue of people who are incapable of giving their consent. He was anxious that medical practitioners and registered nurses should have the power to examine such persons in private and inspect their medical records. That is certainly our intention. We are grateful to the noble Lord for pointing out that the Bill as drafted may not allow for this as a person's consent is currently required before an examination or inspection of their
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medical records can take place. This is potentially a significant loophole and I am therefore bringing forward Amendment No. 46 to close it. I beg to move.
Earl Howe: My Lords, I thank the Minister for introducing these amendments and for removing the concerns that we expressed in Committee. They are very helpful amendments.
On Question, amendment agreed to.
Lord Hunt of Kings Heathmoved Amendments Nos. 44 to 46:
Page 14, line 34, after ("interview") insert ("in private").
Page 14, line 38, at end insert—
("( ) The powers under subsection (3)(b) include—

(a) power to require the manager or the person carrying on the establishment or agency to produce any records, wherever kept, for inspection on the premises; and

(b) in relation to records which are kept by means of a computer, power to require the records to be produced in a form in which they are legible and can be taken away.").

Page 14, line 46, at end insert—
("The powers conferred by this subsection may be exercised in relation to a person who is incapable of giving consent without that person's consent.").
On Question, amendments agreed to.
Earl Howemoved Amendment No. 47:
Page 15, line 4, at end insert ("in a manner appropriate to the nature of the activity carried out on the premises").
The noble Earl said: My Lords, our debates in Committee on the subject of inspections covered some useful territory, not least the rules of conduct for such inspections and the way in which the very considerable powers of inspectors ought to be exercised.
My concerns today are connected but different. As the House is aware, the national care standards commission is to be responsible for regulating a very wide range of establishments and agencies. Even within a particular category of care—let us take private healthcare—we can think of a multiplicity of settings in which care is provided, ranging from a minor, non-invasive procedure in a consultant's private rooms to a complex surgical operation in a large acute private hospital.
If the regulation that emerges from the Bill is to be good regulation—in other words, regulation that carries with it a high degree of public confidence—it needs to take full account of modern healthcare. If it is to do that, its focus must be on process rather than on premises. It should be flexible enough to cope with the numerous levels of activity undertaken in private healthcare establishments. At the simplest level, if I can use that term, there are consultations, simple examinations and therapeutic advice. Those activities do not require the same level of inspection as premises used for invasive treatment.
So my questions to the Minister are simply these: will there be flexibility built into the system on the frequency of inspections to take account of the considerations I have outlined? How do the

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Government envisage that the standards will be set on the intervals between visits and the kinds of things that inspectors will be looking for?
There is an issue here of cost-effectiveness. Time spent on regular and too vigorous inspections of premises where non-invasive treatments are practiced—for example, a doctor's consulting room—may well be at the expense of time better devoted to inspections elsewhere. Indeed, I should like to hear from the Minister what exactly the inspectors intend to inspect in a set of doctors' consulting rooms, and what regulatory burden will be placed upon doctors who rent private practice premises where no invasive procedures are carried out. I hope that we can take it as read that the composition of teams inspecting such premises will have the expertise appropriate to the task in hand and, if necessary, will be multi-disciplinary.
These issues of course apply as much to the other kinds of care encompassed by the Bill. To my way of thinking, the concept of minimum standards has a useful role to play in determining the extent to which inspectors' time should be taken up with a particular set of premises. Where there is real doubt about the implementation of minimum standards—in a care home, for example—the frequency and nature of inspections should be different from those which apply in cases where standards are patently and consistently excellent. I hope that the Minister can reassure me that my expectations are not misplaced.
Finally, I should like to pose a quite separate query to the Minister apropos Clause 29 as a whole. Can he say what will be the role of the Social Services Inspectorate once the Bill becomes law and is brought into effect? I am not clear to what extent the national care standards commission will usurp the role of the SSI in the future. I beg to move.
Lord Addington: My Lords, I believe that the noble Earl, Lord Howe, has argued his case very well. Unless there is good guidance, there is a capacity for wasting a vast amount of time to very little effect in a sort of bureaucratic paperchase. I hope that the Minister will he able to give us a very reassuring answer. Good inspection may very well make the situation much better for everyone, but, if it is merely a case of filling in forms and having a series of bureaucratic considerations taken into account—for instance and just to take an absurd example, whether one has a sterile capacity in a waiting room—or even the thought that that might occur, that might very well get in the way of good practice.
Lord Hunt of Kings Heath: My Lords, I could not agree more with the sentiments that have been expressed. The way in which the commission carries out its inspections must be appropriate to the type of service being inspected. The purpose of the inspection is to ensure that the establishment or agency is meeting the requirements of regulations under Section 21 and other relevant legislation. The commission will also need to take account of the national minimum standards in carrying out its inspections. But the commission cannot go beyond that. It can only act
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within that framework. It cannot begin looking at matters which are not covered by the regulations or standards. That in itself will help to ensure that inspections are appropriate.
That leads us to a point about the inspection methodology, if I may use that expression, to be used by the commission. I agree entirely that it is essential that this should be both sensitive and tailored to the type of service being inspected. Perhaps I may give some examples. Interviews with service users would be a key feature of all inspections, but there will be some service users who may have communication difficulties. In these cases it will be essential that the inspectors who carry out the inspections are trained in the use of appropriate communication or that they take someone with them who is appropriately trained.
Similarly, lay inspectors have a valuable role to play in inspections and we would expect the commission to make use of them. But it is important to select as lay inspectors those with whom the service users can feel confident. There are many other ways in which inspections will be carried out in an appropriate manner. The time spent on inspection will need to vary according to the size of the service. Clearly it should not take as long to inspect a small home with four beds as a large one with 50 beds. The time of day at which the inspection is carried out should also depend on the service. There is no point in inspecting a children's home during the day in term time because the children will be away at school. I believe that there are examples under previous regimes of that having happened. It is no wonder that they never got to the bottom of problems in certain homes. We are well aware of the need for inspections to be carried out in an appropriate manner. It is essential for the commission to work effectively to make that happen.
I also understand that implicit in all this is the concern that the commission's inspectors should behave in an appropriate way and should not go beyond their powers or act in an unreasonable or heavy handed manner. If such behaviour occurs, then the provider of the service will have every right to complain to the commission. We will ensure that the commission has in place a proper procedure for dealing with complaints about its staff. If a complainant is not happy with the commission's response it will then have the right to take the complaint to the Parliamentary Commissioner for Administration, since the commission will be a non-departmental public body.
It is also very well worth saying that the national care standards commission will be required to follow the Better Regulation Task Force principles of good regulation. These include transparency. Regulation must be clear, simple and easily understood. As regards accountability, that means accountability to Ministers, Parliament, users and the public. For targeting, regulation should focus on the problem and minimise side effects. As regards consistency, national laws should be applied evenly and predictably. Finally, and in some ways most importantly, proportionality should link risk and protection to cost and burden.

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As regards the issue of frequency of visits, which the noble Earl, Lord Howe, raised, that will be set in regulations. I very much agree with the noble Earl that that must be linked to the actual service so that there will be variations according to the particular type of service. As regards inspection by private doctors, my understanding is that that might cover staff qualifications, facilities for privacy, security of records and so forth. As I believe I said earlier to the noble Earl, I would certainly expect there to be multidisciplinary teams involved.
So far as concerns the role of the social services inspectorate, the dividing line is this. That inspectorate will inspect the performance of the local authorities in their social services function, while the commission will inspect the providers of services. Therefore, in that sense I do not believe that there will be an overlap.
I hope that the noble Earl will recognise that I accept the points he has raised and that I would expect the commission to act in accordance with the principles I have set out, particularly that of proportionality.
Earl Howe: My Lords, I thank the Minister for that very helpful and full reply. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8.45 p.m.
Clause 31 [Arrangements which may only be made with a registered person]:
Baroness Barkermoved Amendment No. 48:
Page 16, line 11, after ("authority") insert (", hospital, independent clinic").
The noble Baroness said: My Lords, I move this amendment with some reluctance if only because it comes before Amendment No. 49. Noble Lords will recall that at a previous stage of our discussions my noble friend Lord Clement-Jones and I made the point very strongly that the requirement to use only a registered domiciliary care service should not be restricted solely to local authorities and the NHS. I believe that Amendment No. 49 in the name of the Minister is greatly preferable as a way of seeking to achieve what we want. Therefore, with some reluctance I formally move this amendment. I beg to move.
Lord Hunt of Kings Heath: My Lords, I thank the noble Baroness for her warm welcome for what I am about to say. That does not happen too often. We had a very interesting discussion in Committee about the issue of domiciliary care agencies. I believe that the view of the Committee was that all such agencies should be regulated by the commission. At Committee stage I explained that the Government's intention was that in time all domiciliary care agencies would be required to register, but that for an initial period it would not be compulsory. However, for that period local authorities or NHS bodies would be required to place contracts only with registered providers. That is what Clause 31 provided.
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In the light of our discussions in Committee we have considered those arguments and decided to extend regulation to all agencies. That will mean that there will no longer be a transitional stage. All domiciliary care agencies, whether providing services to local authorities or to individuals, will be required by law to register. The requirements in Clause 10 will apply, which mean that it will be an offence for any person to carry on or manage a domiciliary care agency without being registered. Since the full registration requirements will be applied to domiciliary care agencies, there is then no reason to have Clause 31.
As the noble Baroness, Lady Barker, has conceded, I believe that in the light of my amendment there is no need for her to pursue her own. I am very pleased to have been able to make this change. I hope that it will be supported.
Earl Howe: My Lords, I do not know whether it is in order for me to speak after the Minister, but we are in a somewhat unusual situation with an amendment having been moved by the noble Baroness and a further amendment about to be moved by the Minister. I would like to take this opportunity to thank the Minister for addressing the issue that I raised in Committee. I am most grateful.
Baroness Barker: My Lords, I echo the words of the noble Lord, Earl Howe. What the Minister is about to do is highly welcome. I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Lord Hunt of Kings Heathmoved Amendment No. 49:
Leave out Clause 31.
On Question, amendment agreed to.
Clause 37 [Transfers of staff]:
Lord Hunt of Kings Heathmoved Amendment No. 50:
Leave out Clause 37, and insert the following new clause—
TRANSFERS OF STAFF UNDER PART II
(".—(1) The appropriate Minister may by order make a scheme for the transfer to the new employer of any eligible employee.
(2) In this section—
"eligible employee" means a person who is employed under a contract of employment with an old employer on work which would have continued but for the provisions of this Part;
"new employer" means the registration authority;
"old employer" means a local authority or a Health Authority.").
The noble Lord said: My Lords, this group of amendments deals mainly with transfers of staff. Clause 37 allows the Government to transfer staff from local authorities and health authorities to the national care standards commission or, in Wales, the Assembly. The amendment to Clause 69 enables staff to be transferred from local authorities to the new arm of Ofsted or, in Wales, to the Assembly.

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The CCETSW is a body with UK-wide responsibilities and staff working in all four countries. Therefore, we have to make separate provision to ensure that CCETSW's staff can be transferred to the councils being established in England and Wales under the Bill, and to the equivalent bodies when they are established in Scotland and Northern Ireland. Therefore, we are amending Clause 67 to provide for the transfer of CCETSW's staff across the UK by Order in Council.
The new clause to be inserted after Clause 92 ensures that all these staff transfers will reflect the TUPE principle that staff transferred will do so on their existing terms and conditions. It replaces and expands the provisions in the existing Clause 37, and applies to all staff transfers made under the Bill, not just those made under Clause 37, as at present.
The amendments to Schedule I are related. They give the commission, the GSCC and the care council for Wales, the power to pay pensions and compensation such as redundancy payments to their staff. This is implicit in the Bill as it stands, but we would prefer to have it spelt out in order to give staff the maximum reassurance and protection. The intention is that staff who transfer to these new bodies will remain in their existing pension scheme, either the local government pension scheme for staff transferring from local authorities and CCETSW, or the NHS pension scheme for staff transferring from health authorities.
Perhaps I may take this opportunity to say more about these staff transfers because I am aware that they will affect the lives of a great many people who are naturally anxious to hear more about our plans.
In England, the national care standards commission will take over the regulation of social care services and private healthcare from local authorities and health authorities. We intend that all staff who are currently employed in the regulation of these services will transfer to the commission, be they heads of unit, inspectors or administrative staff. This is not a job-cutting exercise. We value the work of inspection unit staff, and we are keen to ensure that we retain their knowledge and expertise. Indeed, it is essential. I should like to give a further important reassurance, which is that all staff who transfer will do so on their existing terms and conditions.
Under Part IN" of the Bill, there will be a transfer of statutory functions from the Central Council for Education and Training in Social Work (CCETSW) to the general social care council (GSCC). We intend that all England-based staff working in CCETSW who wish to transfer to the GSCC will be able to do so. Those staff who transfer to the GSCC will do so on their existing terns and conditions. This approach to transferring staff to the new council will assist the smooth transfer of the functions from the CCETSW to the GSCC and will establish the new council as an active body with suitably experienced staff to undertake the work.
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Perhaps I may now turn to the amendment to Clause 69. My noble friend Lord Bach said in Committee:
"It is the Government's intention that local authority inspectors, managers and administrative staff will he given the opportunity to transfer to the new early years directorate, bringing with them their knowledge and experience".—[Official Report, 18/1/2000: co1.1027.]
That amendment makes this commitment a reality. It is essential that the best of the existing system is maintained in the new one. Again, Ofsted does not have hundreds of staff who are suddenly able to transfer from other activities in order to take on this new responsibility. The early years directorate will achieve greater success if many of those now doing the job opt to continue to do so. Transferring local authority staff can be reassured that they will transfer with their existing contractual terms and conditions. Ofsted will meet all its relevant statutory and legislative responsibilities in that regard. Transferring staff will be treated fairly and their statutory employment rights will not be infringed in any way. Pension rights will also be protected.
In Wales, the Bill provides for health authority and local authority staff, including those working with under-eights, to transfer to the new regulatory arm of the Assembly. It also provides for CCETSW staff in Wales to transfer to the care council for Wales. All of the reassurances I have given for England apply in the same terms to staff in Wales.
None of the important reforms in the Bill will be a success unless we continue to engage the knowledge, skills and experience of the staff currently undertaking this work. All the staff transfer arrangements will need to be worked out in detail and we, the Assembly and Ofsted will want to work closely with the relevant trade unions and representative bodies, as well as with local authorities and health authorities. However, I hope that I have said enough to reassure people at this stage. Obviously, we shall want to keep staff informed of progress as the plans are developed.
The Bill also contains provision for an Order in Council to be made to transfer CCETSW's functions. In addition to those amendments concerning the transfer of staff, we are putting forward several minor amendments to clarify our intentions with regard to the transfer of CCETSW's functions. As I have already stated, CCETSW is a body with UK responsibilities. So we have to be careful to provide for its abolition and for the smooth transfer of its functions to the successor bodies that will be established in the four countries of the UK. That will require some careful handling and will be achieved through agreement between the countries in drawing up schemes of transfer through Order in Council. I beg to move.
Baroness Pitkeathley: My Lords, in welcoming these amendments, I declare an interest as chair of the General Social Care Council Advisory Group. I am convinced that the proposed amendments will be of great importance to the staff, about whom we are talking. While on my feet, perhaps I may pay tribute to the openness with which the proposed changes have

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been greeted by all the staff with whom I have had contact. The commitment to the changes which are being introduced is impressive. None the less, I know that they will be reassured by the assurances offered by the Government in these amendments.
On Question, amendment agreed to.
Clause 40 [Power to extend the application of Part II]:
Lord Hunt of Kings Heathmoved Amendment No. 51:
Page 18, line 37, at end insert ("or by Health Authorities, Special Health Authorities, NHS trusts or Primary Care Trusts").
On Question, amendment agreed to.
Lord Weatherillmoved Amendment No. 52:
After Clause 40, insert the following new clause—
EXEMPTION OF CHRISTIAN SCIENCE HOUSES
(" —(1) The Secretary of State shall grant exemption from the operation of the provisions of this Part of this Act in respect of any establishment or agency which provides nursing or personal care and which he is satisfied is being, or will be, carried on or managed in accordance with the practice and principles of the body known as the Church of Christ, Scientist.
(2) It shall be a condition of any exemption granted under this section that the establishment or agency in question shall adopt and use the name of Christian Science house and the agency in question shall adopt and use the name of Christian Science visiting nurse service.
(3) An exemption granted under this section may at any time be withdrawn by the Secretary of State if it appears to him that the establishment in question is no longer being carried on or managed in accordance with the said practice and principles.").
The noble Lord said: My Lords, in moving this amendment perhaps I should declare a personal interest. Although "orthodoxy" is my doxi—and 1662 at that—my wife is a Christian Scientist, and during the 51 years of our happy marriage I have come to have a regard and a respect for Christian Science teaching and healing. Christian Scientists believe that healing is best achieved through prayer. Indeed, the weekly and monthly publications, Christian Science Journal and Christian Science Sentinel, contain in every issue accounts of contemporary healing through prayer from around the world. Many of them are difficult cases, previously abandoned by the medical profession as hopeless.
A Christian Scientist proactively adopts prayer in sickness and also in health as the most effective means of improving the human condition in all departments of life, without medical intervention. Of course, not every healing is instantaneous and there may be occasions when individuals may need the practical support and care of Christian Science nursing.
There are two Christian Science nursing homes, or houses, in the United Kingdom. I have visited one of them, Charton Manor in Kent, and have seen for myself the high level of facilities and the care of Christian Science trained nurses. Those who enter Charton Manor for Christian Science healing do so voluntarily. They do not have to remain if they subsequently decide that they need medical attention.
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In more than 70 years of exemplary operation, there can be no suggestion that the conduct of Christian Science houses or of domicilary care by Christian Science trained nurses has warranted any increase in the level of government supervision or interference. Indeed, as the Minister well knows, they were specifically exempted from the Nursing Homes Act 1928 and, most recently, from the Registered Homes Act 1984.
I should like to thank the Minister and his officials for the meetings that we have had with them and with representatives of the Christian Science Church. I have been present at one or two of those meetings. I pay tribute to the Minister for his understanding attitude and for the verbal assurances that he has given us at those meetings. The purpose of my new clause is to give the Minister an opportunity to reaffirm those assurances.
Briefly stated, they are, first, that, having particular regard to the Human Rights Act 1998 and Article 9 of the convention, the fundamental religious right of a Christian Scientist, however serious or acute their illness or injury may be, to choose a type of care which is entirely free from all medical diagnosis or intervention is acknowledged and will be preserved; secondly, that no regulations will be applied to Christian Science houses or Christian Science visiting nurse services which would have the effect of preventing Christian Science nursing services being provided in accordance with the practices and principles of the Church of Christ, Scientist, as they have traditionally been; thirdly, that those administering Christian Science establishments or agencies, or their staff members, will not be required to undergo any medical training, including training in first aid, identification or recording of symptoms, diagnosis, or physical therapy, or to attend any prescribed educational programme or in-service training pertaining to patient care, as opposed, for example, to building safety codes and other regulations of a similar kind; and, finally, that it is not the Government's intention that the powers contained in Clause 19 of the Bill shall be exercisable in respect of a Christian Science house or visiting nurse service, where the perceived violation of Clause 19 arises solely by virtue of the patient's intention to rely exclusively on Christian Science treatment for healing. I beg to move.
9 p.m.
Lord Hunt of Kings Heath: My Lords, I am most grateful to the noble Lord, Lord Weatherill, for allowing me to, I hope, reassure him in relation to the position of Christian Science houses. The effect of the noble Lord's amendment would be to exempt Christian Science houses and nursing homes from the requirement to register with the commission. Perhaps I may say right at the start that the Government have no intention of preventing or discouraging people from being cared for in accordance with the principles and practices of the Church of Christ, Scientist. The Care Standards Bill will not mean that Christian Science houses or their visiting nurse services will have

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to give medical treatment to their patients, or do anything else which would go against their religious principles.
I shall deal first with Christian Science establishments. Establishments which fall within the definition of a "care home" and are carried on or managed in accordance with the principles of the Church of Christ, Scientist, will have to register with the commission as a care home. But that does not mean that Christian Science houses would be compelled to comply with regulations or standards which would offend, or be incompatible with, the practices and beliefs of the Church of Christ, Scientist.
I recognise that the type of care and treatment provided by Christian Science houses is non-medical and based on healing through prayer. This is very clearly different from the kind of NHS-style care which other nursing homes provide. The Bill allows for care homes to register as providing different categories of care. The categories will be described in regulations. Applications to register with the commission as a care home will need to state the category of care that the care home intends to provide. It is in this way that the commission will differentiate, for example, between care homes which provide nursing care and those which provide only residential care. It is the Government's intention to provide in regulations for a category of "Christian Science home".
I would not expect many of the regulations or national minimum standards concerning care homes to cause the church any difficulties because I am aware of the very high standards which are apparent in those homes. However, it has to be accepted that there may be a few regulations and standards, such as those regarding the administration of medication, which would not be appropriate. The Department of Health will consult and work with the Church of Christ, Scientist, to ensure that regulation by the commission is compatible with the church's principles and practices.
On the issue of regulating Christian Science visiting nurse services, which the amendment would exempt from regulation, it has not been the intention that the commission would regulate nurses agencies and so, under the Bill, they would be exempted from the definition of a "domiciliary care agency" through regulations made under Clause 4(5).
While recognising that there are differences in the type of nursing provided, it is our view that Christian Science visiting nurse services are akin to nurses agencies. Our intent will be to ensure that they are also exempted from the definition of a "domiciliary care agency" and from the requirement to be regulated by the commission.
I have every sympathy with the intent behind the noble Lord's amendment. I hope that these assurances will satisfy his concerns.
Lord Weatherill: My Lords, I thank the Minister for what he has said and for reaffirming what he said to us in our private conversations. The Christian Science movement is in favour of the Bill itself but is concerned
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that its own practices should not be interfered with in any way. Having been given those assurances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Davidmoved Amendment No. 53:
Before Clause 41, insert the following new clause—
INDEPENDENT ADVOCACY SERVICES
(" . Local authorities shall secure that independent advocacy services are available to all children in their area who are placed under the provisions of Part II of this Act.").
The noble Baroness said: My Lords, this is the third amendment I have moved. The wording is slightly different from the amendment I moved at the Committee stage but the aim is just the same. It is to secure that independent advocacy services for children placed away from home should be available. This Bill has come into being as a result of an appalling series of scandals arising from the treatment of children living in institutions and other placements away from home. One important safeguard against the abuse of such children is to provide them with advocates who are entirely independent of the services the children receive and whose only function is to listen to the children and to promote their interests.
The need for independent advocacy has been confirmed by the official reports in this area—and there are a lot of them. For example, the Wagner report Residential Care: a positive choice proposed that children in all forms of residential care should have access to an independent advocate. The Scottish review Another Kind of Home recommended that children,
"should be able to call on someone to act as their advocate".
The report of the Warner inquiry Choosing with Care—as the noble Lord is in his place, perhaps he will support my amendment—said that children in children's homes should,
"have the support of their own advocates when pursuing serious complaints against staff".
The Utting report People Like Us recommended the use of independent representative services such as those provided by A Voice for the Child in Care.
The safeguard of independent advocacy has been recognised by the Government in their Quality Protects programme under which authorities are encouraged to provide independent advocacy services. But until such services are a statutory requirement children will be dependent on the good will and energy of individuals in the statutory and private sectors. This amendment ensures that the current patchy service of locally-based children's rights advocates and national advocacy services is transformed into comprehensive provision for all children who live away from home.
What happened at Committee stage? The Minister made some excellent remarks about advocacy and the "good work" that was already being done in this field. He said that members of the Committee had suggested that current provision was patchy. It is more than a suggestion: the Government are aware that less than half of local authorities in England and Wales fund

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children's advocacy services. Otherwise, the Minister did not address the amendment except to criticise it on technical grounds. He said that,
"children living away from home",
covered too broad a group, including for example children on access visits to a separated parent.
Two responses can be made to that objection: first, that, surely, children of separated parents should be considered to have two homes; second, that if such children need the help of advocates the local authority should provide it, because in most cases they will be "children in need" within the terms of the Children Act. I have altered my amendment so that it reads,
"Local authorities shall secure that independent advocacy services are available to all children in their area who are placed under the provisions of Part II of this Act".
While that would not mean a comprehensive advocacy service for all children living away from home, it would benefit significant numbers of children who at present have no one to turn to for independent help and advocacy.
The amendment has been commended by many different children's associations and organisations. I hope that for once the Minister will give way and accept an amendment which is supported by so many people who speak with such authority. I also hope that my noble friend Lord Warner will speak in support of the amendment. I beg to move.
Lord Northbourne: My Lords, as I do not see the noble Lord, Lord Warner, rising to speak, at this stage I should like to support the amendment. I say nothing further, except that the drafting of this amendment may also be open to criticism. Part II does not appear to refer to the placing of children but deals with the registration of establishments, regulations and standards, national minimum standards, inspection and so on. However, that can easily be overcome by saying,
"who are placed with establishments registered under the provisions of Part II of this Act".
Baroness Masham of Ilton: My Lords, I too support the amendment. One of the problems highlighted in the tragic cases arising in care homes is that children have not been believed. Children's voices need to be heard. Many children are traumatised and perhaps cannot speak for themselves. This amendment deals with the point, and I hope that the Minister will be helpful.
Lord Warner: My Lords, I cannot resist the blandishments of my noble friend Lady David. I also cannot avoid placing on record that I do not resile in any way from the recommendations in Choosing with Care. Having made those recommendations to the previous government, I can hardly be less forceful in urging them upon the present Government. I strongly support the idea of increasing the availability of advocacy in these circumstances. To some extent matters have moved on, in the sense that a good deal of work has gone into improving the access of children
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in residential settings of one kind or another to external services which can put their point of view and investigate what is going on in these closed institutions.
I believe that there are problems with the terminology of the amendment. However, I encourage my noble friend to be as forthcoming as he can about the way in which the Government wish to pursue the extension of advocacy services in these circumstances. The need is very much there. There is always a danger that young people in those establishments cannot have their voice heard without the support and help of people from outside.
9.15 p.m.
The Earl of Listowel: My Lords, children in care are at a disadvantage. Advocacy is an important means of remedying that disadvantage. Their lower standard of education makes it more difficult for them to marshal their thoughts into an argument. It may be difficult for us who can read and write fluently to appreciate the difficulty they face. However, when helping a young man to write his curriculum vitae, one realises what an immensely powerful tool literacy is and the disadvantage that those who do not possess it suffer.
Furthermore, those in care are more emotionally dependent on their carers than are others. Recently a manager found a case beneath the bed of one of his girls. It was full of birthday cards and Christmas cards from her social care workers accumulated over several years. It was her treasured possession. It emphasises the dependence of such young people on their carers. That dependence makes it harder for them to express their wishes for fear of losing the carers' affection.
About 1 per cent of those children are unaccompanied asylum seekers who may be completely dependent on their carers. They are in a foreign culture. In a hostel I visited over several months was a young Afghan woman who spoke no English. It was difficult to find an Urdu-speaking interpreter of her dialect who could be available frequently enough to serve her needs. It was hard to move her to a new home. The homes found were not right for her. The Muslim parents explained that to live in a household with young men who were not her brothers would compromise a young Muslim woman. There are many difficulties, and on past record some local authorities, sadly, give the minimum attention to the special needs of these young people.
The Minister pointed out that Quality Protects places listening to the child as a priority. However, Quality Protects contains several priorities. It is a temporary arrangement. The Minister mentioned new guidelines. They can be overturned by a new government. Guidelines do not impose a duty on local authorities.
The amendment would be helpful. It would enable children in care forcefully to express their wishes. The service would not cost very much. A Voice for the Child in Care was mentioned earlier. It has arranged a comprehensive service in one county at a cost of

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£100 per child per annum. That includes a fortnightly visit from an advocate. I warmly support the amendment. I look forward to the Minister's reply.
Lord Addington: My Lords, I feel somewhat like tail-end Charlie. It is clear that the House feels that there is a problem and I hat advocacy in some form would be beneficial. From these Benches we support that aim. If the amendment is not right as drafted, I suggest strongly that the right amendment is tabled.
We are dealing with vulnerable people who do not have the normal support networks. They will often feel resentment towards authority and will be unable to handle authority in a non-confrontational way. They may suffer illiteracy problems. Such people later in life may appear again in the social services system, if not the prison system. If one allows those people to interact with society through the advocacy system, it will prevent a lot of trouble in later life. I strongly urge the Government to bring in some form of advocacy for these groups.
Lord Hunt of Kings Heath: My Lords, it is clear that all noble Lords recognise the importance of advocacy. I certainly do, and hope to explain how the Government are taking forward a number of important strands in ensuring the development of advocacy services in this country. But because the Government are involved in taking forward work in a number of areas, we believe that it would be premature to legislate at this stage. Noble Lords should be under no misapprehension on that we very much recognise the importance of advocacy.
The Waterhouse report highlighted the need for looked-after children to have a means of having their voices heard. The report certainly provides many examples of where a child's plea for help fell on deaf ears, often with tragic consequences.
We believe that advocacy has a very important role to play in protecting the interests of looked-after children. It is a fast developing area and we are supporting a range of initiatives to encourage the development of high standards in this field. My noble friend Lady David has already referred to the principles of children's participation and listening to children which underpin the Quality Protects programme. That was a priority area for grant funding for local authorities in year 1 of the programme, with almost £5 million invested in listening to children. It will again he a priority in year 2. Indeed, in setting the stage for year 2 of the programme, we also wrote to local authorities in October last year stressing that particular attention should be given to the involvement of young people collectively and to enhancing their individual voices through the development of advocacy services.
The Government are committed to advancing the development of high quality advocacy services through the overall Quality Protects programme. I can confirm to the House that local authorities have now submitted their management action plans for year 2 of Quality Protects. Those are currently being carefully
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assessed. On the basis of that assessment, we shall have a much better feel for the progress that is being made by individual authorities.
I believe that it is worth pointing out to noble Lords that the much stronger performance assessment framework that we now have in place in relation to social service authorities provides us, together with the Social Services Inspectorate, with the tools to ensure in the future a much greater consistency of approach than has ever been apparent in the past.
Through a grant to the National Youth Advocacy Service, the Department of Health is also funding the development of national standards for agencies which provide advocacy services for children and young people. We hope that the finalised standards will be published in June.
The Department of Health will issue shortly a draft consultation paper on the reform of the complaints procedure for looked-after children. We realise that the existing system is imperfect. As part of the consultation process we shall look carefully at whether the existing arrangements which involve an independent person should be replaced with the right to an advocate for looked-after children who wish to pursue a complaint.
Noble Lords who have followed the Children (Leaving Care) Bill will also be aware that the Government will introduce a complaints procedure for those children leaving care who do not receive the support and advice to which they are entitled. Of course, the role of the young person's adviser will be crucially important in this area. We hope that instances where the relationship breaks down between the young person and his adviser will be few and far between. However, where a young person does not receive the support to which he is entitled, we believe that it is right that there should be a complaints procedure. Accompanying guidance will make it clear to local authorities that they should make advocacy services available in those circumstances.
Although we have talked about the unevenness of provision by local authorities, I believe that it is worth making the point that many authorities are already providing an advocacy service. The provisions contained in the Children (Leaving Care) Bill are based on good practice in a number of local authorities.
I want to emphasise again the Government's commitment to developing high quality advocacy services. I believe that the range of measures that I have outlined demonstrate that commitment. I know that we all wish to see effective arrangements and mechanisms in place to ensure that high quality advocacy services are available.
In speaking to this amendment, I have used the word "developing" on a number of occasions. I believe that it reflects the situation in which we find ourselves. Independent advocacy services are still at the development stage, and the availability and quality of those services is not consistent across the country. As I said, some local authorities are much more advanced than others.

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We want to see advocacy develop appropriately and to see high standards across the board. I believe that the actions that I have outlined will go far in ensuring that that happens. However, I would also say to my noble friend that, given the ongoing programme of work, I believe that it would be premature to legislate further in this area at this stage.
Baroness David: My Lords, I thank the Minister for his response. It was not quite so good as having the amendment accepted but I do think, if he is listening, that his response was really quite good. I was also rather relieved to hear from my noble friend Lord Warner that there has been an advance since his report. I am grateful to the Minister for handing me the guidance to local authorities on developing children's rights and advocacy services which does show that quite a lot is being done.
So I shall be watching very carefully what advance is made and I shall be inquiring from everybody round about whether things are happening satisfactorily. But in the light of the Minister's response, I am prepared to withdraw my amendment.
Amendment, by leave, withdrawn.
Clause 42 [Inspection by registration authority of adoption and fostering services]:
Lord Hunt of Kings Heathmoved Amendments Nos. 54 and 55:
Page 19, leave out lines 22 and 23.
Page 19, line 24, at end insert—
("( ) The powers under subsection (2)(a) include—

(a) power to require the local authority to produce any records, wherever kept, for inspection on the premises; and

(b) in relation to records which are kept by means of a computer, power to require the records to be produced in a form in which they are legible and can be taken away.").

On Question, amendments agreed to.
Clause 45 [Regulation of the exercise of relevant fostering facilities]:
Lord Hunt of Kings Heathmoved Amendments Nos. 56 and 57:
Page 21, line 17, at end insert ("about the exercise by local authorities of relevant fostering functions, and may in particular make provision").
Page 21, line 19, leave out ("relevant fostering") and insert ("such").
On Question, amendments agreed to.
Clause 51 [Care Councils]:
Lord Hunt of Kings Heathmoved Amendments Nos. 58 and 59:
Page 22, line 16, at end insert ("or Cyngor Gofal Cymru").
Page 22, line 35, leave out from ("Council") to end of line 37.
On Question, amendments agreed to.
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Clause 52 [Interpretation]:
Lord Hunt of Kings Heathmoved Amendment No. 60:
Page 23, line 4, leave out ("is").
The noble Lord said: My Lords, in Clause 52, we are seeking to amend the classes of worker who can by regulation be defined as a "social care worker". It is a key element in our plans for the new councils that they will develop the standards by which social care workers will undertake their duties. It is vital that we make provision for the right staff to be defined as social care workers, thus requiring them to meet these standards. That is how we shall continue to offer service users, their carers and the general public the greater degree of protection they deserve.
As we discussed earlier, rather like healthcare, social care is undoubtedly not static. Services change over time to meet developing needs and the public's expectations. As that happens, we need to be able to define new groups of staff as social care workers so that their conduct and practice can be subject to the councils' standards through the codes of conduct and practice and so that they can then become eligible to be registered by the councils.
We are here adding to the sorts of workers who we can define as "social care workers" by regulations as follows: persons engaged in the provision of personal care services for any person; and persons engaged in the provision of relevant services within the meaning of section 40; that is, staff in services which become regulated by the commissions.
In Clause 53, we are introducing a further amendment to replace the term,
"persons engaged in relevant social work",
with, I hope, the more readily understood term "social worker". That change in itself leads to consequential amendments to other clauses in this part of the Bill.
Clause 57 changes the provisions for the councils to charge a fee for registering individual social care workers. We want to change the power so as not to tie the councils to an annual fee. The councils may well decide that an annual fee is the most appropriate but we do not want to tie them into it at this stage. For example, the UKCC, which regulates nurses, health visitors and midwives, charges a three-year fee. We are therefore proposing a periodic fee to give the councils flexibility in drawing up a scheme that will best suit the social care workforce.
The amendment to Clause 58 relates to the protection of title of "social worker". We want to prevent people using the title or wrongly claiming to be registered with any of the UK councils. We have introduced this amendment to avoid the situation where someone registered as a social worker with, for example, the Scottish council would commit an offence by calling himself a social worker in England if he is not so registered with the GSCC. We are very much alive to the need to avoid regulation putting unnecessary barriers in the way of movement across the UK of properly regulated social care workers. That is the reason for that change.

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In relation to Clause 59, on the employers' code of practice, the amendment in Clause 59 provides for the council to draw up and promulgate a code of practice for employers in relation to social care workers. This amendment reflects our intention as set out in Modernising Social Services and corrects an omission in the original draft of the Bill.
Your Lordships will already have seen in the Bill provision for codes of practice and conduct for social care workers. The code of practice for employers complements those for the staff. For example, it will emphasise the need for employers to have robust recruitment practices in place so that unsuitable people do not enter the social care workforce in the first place.
The amendment to Clause 64 is designed to give the Secretary of State flexibility regarding to whom he can delegate his functions in this part of the Bill. When the Secretary of State thinks it is right to delegate one of his functions it is important that he has the power to delegate it to the person or body best able to carry out that function effectively and efficiently at that time. With this amendment we are seeking to give him the flexibility to choose the right person or organisation at a given moment in time in response to the developing and changing world of social care.
In Clause 65 we are introducing a minor amendment to clarify our intention that appeals against a decision of a council should relate to the decision it makes about the registration of individual social care workers. That concludes this group of minor and technical amendments to the GSCC provisions. I beg to move.
9.30 p.m.
Lord Northbourne: My Lords, on a point of clarification, perhaps I am being stupid but I do not fully understand the implications of Amendment No. 68, which is in this group to which the Minister has been speaking, as I understand it. Am I right in saying that this, with other amendments in the group, segregates from the job of social worker the job of social care worker?
This is an important issue, because at the moment the qualification for a social care worker, or someone who works in a residential home, is the same as the qualification for a social worker who works in a local authority. The reality of the case is that the part of the course relating to residential care is very much regarded as second class, and the social workers who work in residential homes ire regarded as second-class citizens. It is regarded as a less attractive job, and for that reason social workers are tempted to move away from residential work and into work with local authorities. In my view that is a tragedy, because the work in residential homes is of the greatest importance.
Can the noble Lord confirm, first, that social care workers are in future going to be people who work in residential homes? Secondly, will they have a separate and distinct qualification? Thirdly, will everything possible be done to raise their status in the profession?
Baroness Pitkeathley: My Lords, before the Minister rises to his feet, I declare an interest as the
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chair of the General Social Care Council Advisory Group. I hope that I can reassure the noble Lord, Lord Northbourne, that the purpose of extending the categories in this way is precisely what I think concerns him in relation to raising the status and the way in which this kind of work is regarded. It is very important that we move it away from social work.
I am old enough to remember—perhaps I might suggest that the noble Lord is also—when we talked about a general social services council. We now talk about a general social care council, precisely to reflect the fact that we must have the widest possible categories of people who are working in this field, not only to reach the requisite standards but to raise its status in the eyes of the profession and also in order to provide reassurance to the public.
Lord Hunt of Kings Heath: My Lords, I am not sure that I need to add very much to what has been said by my noble friend. It is clear, first of all, that this recognises the protection of the title of "social worker". That is important, because I think that pa-1 of the function of the changes being proposed is to raise the status, the professionalism and public confidence in fully qualified professional social workers.
I very much take the point raised by the noble Lord. This provision is also designed to embrace all those people working within the social care system. Although it will take time—because we are talking about half a million people who are employed within the "care industry", if I may use that term for the care service—the GSCC will play a vitally important role in relation to those care workers too in enhancing the training, support and development of people of whom we ask a great deal. We accept that they often have to work under pressure but without the support that is necessary.
Two lessons have always come home to me from reports of inquiries into such terrible events: first, the sheer horror of the abuse to residents; and, secondly—I take the point about residential care in particular—that there has always been a lack of support from the local authorities for people in that particular sector. I beg to move.
On Question, amendment agreed to.
Lord Hunt of Kings Heathmoved Amendments Nos. 61 to 67:
Page 23, line 5, leave out ("engaged") and insert ("engages").
Page 23, line 5, at end insert ("(referred to in this Part as a "social worker")").
Page 23, line 6, at beginning insert ("is").
Page 23, line 6, leave out ("at the premises") and insert ("for the purposes").
Page 23, line 8, at beginning insert ("is").
Page 23, line 15, at end insert—
("( ) a person engaged in the provision of personal care for any person;
( ) a person engaged in the provision of relevant services (within the meaning of section 40);").

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Page 23, line 22, at end insert—
("( ) An establishment is a day centre if it provides nursing or personal care wholly or mainly for persons mentioned in section 3(2), but does not provide accommodation for them.").
On Question, amendments agreed to.
Clause 53 [The register]:
Lord Hunt of Kings Heathmoved Amendment No. 68:
Page 23, line 24, leave out from ("of") to end of line 29 and insert—

("(a) social workers; and

(b) social care workers of any other description specified by the appropriate Minister by order.

(2) There shall be a separate part of the register for social workers and for each description of social care workers so specified.").
On Question, amendment agreed to.
Clause 55 [Grant or refusal of registration]:
Lord Hunt of Kings Heathmoved Amendment No. 69:
Page 24, line 1, leave out from ("is") to second ("and") and insert ("physically and mentally fit to perform the whole or part of the work of persons registered in the part of the register to which his application relates;").
The noble Lord said: My Lords, in Committee great strength of feeling was expressed against the wording of the health test for registration with the councils. I have reflected on the matter and I fully recognise that the words were wrong. They could be taken to be discriminatory, however unintentionally. I am sorry that that happened because it distracted from the general welcome that noble Lords gave to this section of the Bill.
In Committee, the noble Lord, Lord Addington, called for the health test to be withdrawn completely. We cannot do that. The driving force behind the councils is to achieve a greater degree of protection for service users, their carers and the general public. What we want to achieve with the health test is to prevent people registering with the councils whose health would make them unsafe to practise.
A health test for registration is a common feature of regulatory bodies. Social care is no different. We want to achieve higher standards for the public. To succeed in that, we must have a workforce capable of delivering the standards which we want to see and which will meet the increasing expectations of the public.
Our amendment proposes a different form of words for Clause 55. It requires an applicant for registration to be,
"physically and mentally fit to perform the whole or part of the work of persons registered in the part of the register to which his application relates".
We believe that that formula avoids the unintended discrimination of the existing provision and gives the councils one of the powers that they need to ensure that the social care workers whom they register are safe and competent to practise.
It will be for the councils to draw up detailed rules about registration. However, their rules will be subject to approval by Ministers. Our view is that the councils will not insist that every social care worker must be in
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a state of health that would allow them to undertake the full range of possible duties. The health of some workers will mean that they cannot do so, but nevertheless they can make a valuable contribution and do so safely and competently.
I hope that the amendment will allay the concerns about discrimination raised in Committee and that it provides a reasonable test for registration to ensure that the council registers only those workers who are safe and competent to practise. I beg to move.
Lord Addington: My Lords, I rise to welcome the amendment. The words in the amendment are not the words that I would have chosen, but they are certainly a great improvement on what was there before. It may just be the case that my semantics should not get in the way of progress. I thank the Minister for listening and for going away and getting something done about the clause. I hope only that this happy relationship will continue.
Baroness Pitkeathley: My Lords, perhaps I may briefly add that the members of the General Social Care Council Advisory Group will be extremely happy with this wording. I am extremely glad that the Government have taken account of the concerns raised hitherto in your Lordships' House.
Earl Howe: My Lords, I should like to re-echo those sentiments. The wording seems absolutely to the point.
On Question, amendment agreed to.
Lord Hunt of Kings Heathmoved Amendment No. 70:
Page 24, line 6, leave out from ("registration") to end of line 7 and insert ("as a social worker").
On Question, amendment agreed to.
Clause 56 [Removal etc. from register]:
Lord Hunt of Kings Heathmoved Amendment No. 71:
Page 24, line 27, after ("in") insert ("a part of").
On Question, amendment agreed to.
Clause 57 [Rules about registration]:
Lord Hunt of Kings Heathmoved Amendment No. 72:
Page 25, line 4, leave out ("an annual") and insert ("a periodic").
On Question, amendment agreed to.
Clause 58 [Use of title "social worker" etc.]:
Lord Hunt of Kings Heathmoved Amendments Nos. 73 to 75:
Page 25, line 6, after ("person") insert ("who is not registered as a social worker in any relevant register").
Page 25, line 8, leave out from ("is") to ("he") in line 14 and insert ("so registered, or in any way holds himself out as so registered").

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Page 25, line 14, at end insert—
("( ) For the purposes of subsection (1), a register is a relevant register if it is—

(a) maintained by a Council; or

(b) a prescribed register maintained under a provision of the law of Scotland or Northern Ireland which appears to the appropriate Minister to correspond to the provisions of this Part.").

On Question, amendments agreed to.
Clause 59 [Coles of practice]:
Lord Hunt of Kings Heathmoved Amendments Nos. 76 to 78:
Page 25, line 20, at end insert ("; and
( ) standards of conduct and practice in relation to social care workers, being standards expected of persons employing or seeking to employ them").
Page 25, line 26, leave out from beginning to ("be") in line 27 and insert (" A code published by a Council shall").
Page 25, line 31, leave out subsection (5) and insert—
("(5) Local authorities making any decision about the conduct of any social care workers employed by them shall, if directed to do so by the Secretary of State, take into account any code published by the Council.").
On Question, amendments agreed to.
Clause 61 [Qualifications gained outside a Council's area]:
Lord Hunt of Kings Heathmoved Amendments Nos. 79 to 85:
Page 26, line 27, leave out from ("registration") to first ("the") in line 28 and insert ("as a social worker in").
Page 26, line 34, leave out ("registration in that part of the register") and insert ("such registration").
Page 26, line 40, leave out ("registration in that part") and insert ("such registration").
Page 26, line 44, leave out from ("registration") to first ("the") in line 45 and insert ("as a social worker in").
Page 27, line 6, leave out ("registration in that part of the register") and insert ("such registration").
Page 27, line 12, leave out ("registration in that part") and insert ("such registration")
Page 27, line 18, leave out from ("registration") to first ("the") in line 19 and insert ("as a social worker in").
On Question, amendments agreed to.
Clause 64 [Functions of the appropriate Minister]:
Lord Hunt of Kings Heathmoved Amendment No. 86:
Page 28, line 42, leave out subsection (4) and insert—
("(4) Any functicns of the Secretary of State under this section—

(a) may be delegated by him to the English Council; or

(b) may be exer:ised by any person, or by employees of any person, authorised to do so by the Secretary of State.

(4A) For the purpose of determining—

(a) the terms and effect of an authorisation under subsection (4)(b); and

(b) the effect of so much of any contract made between the Secretary of State and the authorised person as relates to the exercise of the function,

Part II of the Deregulation and Contracting Out Act 1994 shall have effect as if the authorisation were given by virtue of an order under section 69 of that Act; and in subsection (4)(b) "employee" has the same meaning as in that Part.").
On Question, amendment agreed to.
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Clause 65 [Appeals to the Tribunal]:
Lord Hunt of Kings Heathmoved Amendments Nos. 87 and 88:
Page 29, line 4, after ("Part") insert ("in respect of registration").
Page 29, leave out line 9.
On Question, amendments agreed to.
Clause 67 [Abolition of Central Council for Education and Training in Social Work]:
Lord Hunt of Kings Heathmoved Amendments Nos. 89 and 90:
Page 29, line 26, at end insert ("under subsection (2A), or make any provision under subsection (2B), which She considers necessary or expedient in consequence of the functions of CCETSW referred to in subsection (1) ceasing, by virtue of that subsection, an Act of the Scottish Parliament or an Act of the Northern Ireland Assembly, to be exercisable in relation to any part of the United Kingdom.
(2A) A scheme may provide—
( ) for the transfer to the new employer of any eligible employee;").
Page 29, line 33, leave out subsections (3) to (5) and insert—("(2B) The Order in Council may make—

(a) any supplementary, incidental or consequential provision,

(b) any transitory, transitional or saving provision,

including provision amending Schedule 3 to that Act or repealing that Schedule, section 10 of that Act and any reference in way enactment to CCETSW.
(2C) In this section—
"eligible employee" means a person who is employed under a contract of employment with the old employer;
"new employer" means—

(a) in relation to England or Wales, the Council;

(b) in relation to Scotland or Northern Ireland, any body established under a provision of the law of Scotland or (as the case may be) Northern Ireland which appears to Her Majesty to perform functions corresponding to those of a Council;

"old employer" means CCETSW;
"property" includes rights and interests of any description.").
On Question, amendments agreed to.
Clause 69 [Amendment of Children Act 1989]:
Lord Bachmoved Amendment No. 91:
Page 32, line 12, at end insert—
("( ) For the purposes of subsection (4)(b) a person is not treated as working on the premises in question if—

(a) none of his work is done in the part of the premises in which children are looked after; or

(b) he does not work on the premises at times when children are looked after there.").

The noble Lord said: In moving Amendment No. 91, tabled in the name of my noble friend Lord Hunt of Kings Heath, I shall speak also to Amendments Nos. 92 to 94 and Amendment No. 105, all of which seek to improve the provisions in Part V of the Bill, although I concede that they are minor amendments.
Under Part V, a daycare provider and his or her staff must be "suitable" to look after children. In addition, anyone else living or working on the premises must also be suitable to be around children.

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In practice, that means that such people must be the subject of police checks to ensure that unsuitable people are not allowed access to young children. This is only proper if the children's wellbeing is to be adequately safeguarded.
However, there will be instances when it is neither desirable nor practical to carry out checks on every single person working in a building, especially where very many of them will never be in contact with the children being looked after.
Let us suppose, by way of example, that the Palace of Westminster operated a créche—perhaps it should—for the children of its employees, it would be sensible to run checks on those working in the cràche and on anyone else who might work in the area where the cràche is provided. However, it would not be practical to require every one of the thousands of people working within the Palace boundaries to be subjected to a police check on their past behaviour. Nor would it make sense to require checks on people working in the creche area long after the children have left.
The amendment also dovetails with the Home Office's proposed protection of children provisions in the Criminal Justice and Court Services Bill, which prevent unsuitable adults from working with children. It is for those reasons that the Government wish to define more clearly which employees should and should not face investigation before a provider may be registered for daycare provision.
I turn to Amendments Nos. 92 to 94. As it stands, Part V requires emergency protection orders to be obtained from the Protection of Children Act Tribunal. On reflection, the Government consider that such orders should be obtained from the magistrates' courts, as is the case under the present regulatory system. The safety of every child is paramount and we want to respond quickly to protect all children when there is a risk they might come to some harm. Magistrates are in the best position to meet that need, being able to make emergency protection orders at any time of the day or night. For example, a childminder or daycare provider could be involved in untoward activities involving children. That might be revealed at a time when it would not be convenient to convene a tribunal at such short notice. However, an application may be made over the phone to a magistrate to ensure that immediate action is taken to protect any child in the care of the childminder or daycare provider.
Obviously, the House will want to ensure that children are protected at all times. To do that, we must continue to be rigorous and alert to child protection matters, particularly when they must be dealt with urgently.
Finally, I turn to Amendment No. 105. The Chief Inspector of Schools will be required to remove from the register of early years child care inspectors people he considers unsuitable. Similarly, he may also refuse an application for inclusion on the register from a person he has reason to consider unsuitable.
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Where a registered inspector or potential inspector is aggrieved by any such decision, he or she has a right of appeal against that decision. As drafted at present, Part V would require the appeal to be made to the Registered Nursery Education Inspectors Appeal Tribunal; a body which is convened only when an appeal is received and has no president or permanent members. Indeed, since its inception in 1996, it has heard only two appeals.
As there will be many more registered childcare inspectors than there are nursery education inspectors, it will be important to ensure that the tribunal which hears appeals has sufficient capacity to deal with any cases which are referred to it. For this reason, it is our intention that appeals by child care inspectors should be directed to the Protection of Children Act tribunal. This amendment secures that objective. I beg to move.
On Question, amendment agreed to.
Lord Bachmoved Amendments Nos. 92 to 94:
Page 36, line 8, leave out ("the Tribunal") and insert ("a justice of the peace").
Page 36, line 14, leave out ("Tribunal") and insert ("justice").
Page 36, line 19, leave out ("Tribunal") and insert ("justice").
On Question, amendments agreed to.
Lord Bachmoved Amendment No. 95:
Page 36, line 21, leave out ("date on which") and insert ("time when").
The noble Lord said: My Lords, in moving Amendment No. 95, I should like to speak also to Amendments Nos. 96 to 104, 106, 188, 192, and 195 to 202. These 21 amendments comprise a series of minor technical and consequential amendments. They are designed to improve the clarity of existing Part V and Schedule 2 and to amend references to other legislation in Schedule 3 to the Bill.
Amendments Nos. 95 to 100 all relate to emergency order-making procedures and are designed to clarify and improve existing arrangements. I hope to move Amendment No. 95 as shortly as I can. The amendment will ensure that the order stipulates the precise time when emergency procedures will take effect, not just the date. It also means that orders cannot be applied retrospectively.
Amendments Nos. 96 and 97 are both designed to modernise the legislation by updating the language used in the original Children Act 1989. The amendments remove Latin and replace the phrase, "ex parte" with clear English, "without notice".
Amendments Nos. 98, 99 and 100 improve the clarity of the drafting and simplify the emergency order application procedure. The amendments confirm, first, that an emergency order must be made in writing, although an application may be made orally. Secondly, they make it clear that the registered person will receive an actual copy of the order, rather than,
"notice of the order and its terms".

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Thirdly, they confirm that the registered person will receive a copy of (i) a written statement setting out the registration authority's reasons for the order (if one exists) application, and (ii) notice of any right of appeal to which the registered person is entitled.
I shall now move on to Amendment No. 101. Part of this amendment is required as a consequence of Amendments Nos. 92 to 94—the transfer of emergency order applications from the tribunal back to the magistrates' courts, which was agreed by the House a few minutes ago. This amendment removes now redundant appeal arrangements. These were originally put in place to ensure that the tribunal set up to make an emergency order would be constituted differently from the tribunal set up to hear an appeal against that order. None of this now applies, since the order will be made by the JP and the tribunal will hear the appeal.
Next I shall take the other part of Amendments No. 101 to 104 together. These relate to appeals against the registration authority—for example, as a result of registration cancellation or as a result of a magistrate's emergency order. Essentially, these amendments simplify and bring increased coherence to current drafting by merging existing provisions. The result will provide greater procedural clarity for the appellant and more consistency across the Bill.
Amendment No. 106 is again technical in nature. It corrects an inaccurate reference to the provisions dealing with inspections in the School Inspection Act 1996 so that it refers to the provisions dealing with report of the inspection.
Amendment No. 108 exempts residential family centres from regulation under Part XA. Residential family centres are social care settings to be regulated by the national care standards commission. However, there may be occasions when "day care" is taking place at the centre, bringing them—technically—within the Part XA regulatory framework. This amendment avoids imposing the burden of two regulatory systems on the provider by specifically exempting family centres from Part XA day care regulation.
Amendments Nos. 192 and 195 to 202 are consequential amendments to the Children Act 1989, the Education Act 1996, the Police Act 1997 and the Protection of Children Act 1999. In the main, those amendments simply add references to the new Part XA of the Children Act. I am sure the House will be delighted that I do not intend to go into the details of them this evening. I beg to move.
On Question, amendment agreed to.
Lord Bachmoved Amendments Nos. 96 to 104:
Page 36, line 22, leave out ("ex parte") and insert ("without notice").
Page 36, line 23, leave out from ("parte") to end of line 24.
Page 36, line 24, at end insert—
("( ) An order under subsection (1) shall be made in writing.").
Page 36, leave out line 29 and insert—
("(a) a copy of the order;").
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Page 36, line 30, leave out from first ("of") to end of line 31 and insert ("any written statement of the authority's reasons for making the application for the order which supported that application; and
(c) notice of any right of appeal conferred by section 79LA.").
Page 36, leave out lines 32 to 47.
Page 37, leave out lines 27 to 40.
Page 37, line 43, leave out ("this section") and insert ("section 79LA").
Page 37, line 44, at end insert—
('Appeals.
79LA.—(1) An appeal against—

(a) the taking of any step mentioned in section 79L(1): or

(b) an order under section 79K,

shall lie to the Tribunal.
(2) On an appeal, the Tribunal may—

(a) confirm the taking of the step or the making of the order or direct that it shall not have, or shall cease to have, effect; and

(b) impose, vary or cancel any condition.").

The noble Lord said: My Lords, these amendments were spoken to earlier. With the leave of the House I shall move them en bloc. I beg to move.
On Question, amendments agreed to.
Lord Bachmoved Amendments Nos. 105 and 106:
Page 39, line 6, at end insert ("; and
(d) in paragraph 10(2), for the words from "to a tribunal" to the end there shall be substituted "to the Tribunal established under section 9 of the Protection of Children Act 1999"").
Page 39, line 41, leave out from ("report") to ("as") in line 42 and insert ("under subsection (2)").
On Question, amendments agreed to.
Lord Hunt of Kings Heathmoved Amendments Nos. 107 and 108:
Page 39, line 44, at end insert—
("Inspection: Wales
General functions of the Assembly.
79QA. The Assembly may secure the provision of training for persons who provide or assist in providing child minding or day care.
Inspection: Wales.
79QB.—(1) The Assembly may by regulations make provision—

(a) for the inspection of the quality and standards of child minding provided in Wales by registered persons and of day care provided by registered persons on premises in Wales;

(b) for the publication of reports of the inspections in such manner as the Assembly considers appropriate.

(2) The regulations may provide for the inspections to be organised by—

(a) the Assembly; or

(b) the Chief Inspector of Schools in Wales, or any other person, under arrangements made with the Assembly.

(3) The regulations may provide for subsections (2) to (4) of section 42A of the School Inspections Act 1996 to apply with modifications in relation to the publication of reports under the regulations.").

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Page 41, line 38, at end insert—
("(2A) The appropriate Minister may by order make a scheme for the transfer to the new employer of any eligible employee.
(2B) In subsection (2A)—
"eligible employee" means a person who is employed under a contract of employment with an old employer on work which would have continued but for the provisions of this section;
"new employer" means the registration authority (within the meaning of Part XA of the 1989 Act) and, in relation to Wales, includes the Chief Inspector of Schools in Wales;
"old employer" means a local authority.").
The noble Lord said: My Lords, with the leave of the House, I shall move Amendments Nos. 107 and 108 en bloc. They were spoken to earlier. I beg to move.
On Question, amendments agreed to.
Clause 70 [Basic definitions]:
Lord Hunt of Kings Heathmoved Amendments Nos. 109 and 110:
Page 41, line 44, leave out ("This section applies") and insert ("Subsections (2) to (7) apply").
Page 42, line 39, at end insert—
("( ) Regulations for the purposes of this section or section 78 may only be made by the Secretary of State; and before making any regulations for the purposes of this section the Secretary of State shall consult the Assembly.").
On Question, amendments agreed to.
Clause 72 [Persons who provide care for vulnerable adults: duty to refer]:
Earl Howemoved Amendment No. 111:
Page 43, line 14, leave out (", or would have considered dismissing him.").
The noble Earl said: My Lords, we come now to another critical issue affecting the balance that has to be struck between the rights of vulnerable adults and the rights of care workers. In addition to Amendment No. 111, I shall speak also to Amendments Nos. 112, 115 and 116.
In Clauses 72 and 73, the Bill envisages a number of situations in which a referral of someone's name to the Secretary of State must occur. Some of those situations, if I may be permitted to summarise, are ones where the provider has reached a definite conclusion that the care worker is guilty of misconduct which harmed, or placed at risk of harm, a vulnerable adult.
The consequence of reaching that conclusion is that the worker is dismissed or moved to another posting that has nothing to do with looking after people. Should the worker have resigned or retired in the mean time, it is envisaged that the employer, on the strength of what he has heard, will be able to conclude that he would definitely have dismissed him if the worker had still been around.
In other words, we are dealing here with the clear-cut case. I do not have a problem with the requirement to refer in such circumstances. But the Bill also envisages other sets of circumstances where matters are nothing like so clear cut. The employer is required to refer someone who, since the incident took place, has retired or resigned and whom he would have "considered" dismissing on grounds of relevant
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misconduct had the worker still been around. That provision requires the employer to jump a hurdle that is a great deal lower than the ones to which I referred a moment ago. He does not have to reach the conclusion that he would have definitely dismissed the person; only that he would have "considered" dismissing him.
First, we need to know what "considered" means in this context. It clearly ought not to mean "briefly contemplated". But assuming it means something stronger than that, what does the phrase imply? It implies that, at best, the provider is uncertain whether or not he would actually have dismissed the person had that individual still been around; in other words, the Bill is saying that even though there may be doubt in the provider's mind that the person harmed a vulnerable adult or placed such an adult at risk of harm in a manner sufficient to be classified as misconduct, there is nevertheless a duty on the provider to refer that person to the Secretary of State.
I am most uneasy—indeed, worried—about that provision. It does not seem at all right that a provisional listing could take place, with all that that means in terms of stigma, when an employer has not concluded that a person was worthy of dismissal for what he did. For that reason, why should we not require the employer at least to come forward and state that he would have dismissed the person had he been able to do so? I simply ask the Minister whether the right balance has been struck in this respect. I beg to move.
Lord Phillips of Sudbury: My Lords, on behalf of these Benches, I should like to identify myself and my noble friends completely with what the noble Earl has just said. We are talking about an important phrase in an important section of the Bill; indeed, I do not think that I can add anything more than that.
Lord Warner: My Lords, I rise to express another point of view. I do so as a former director of social services and as someone who has had to deal with his own share of disturbing cases where one has to adjudicate on claims of abuse by staff against children and vulnerable adults. In all these very difficult disciplinary matters, the case against the accused, so to speak, has to be proved to a civil standard of proof, on the balance of probabilities, before a person can be dismissed. It takes time to put these cases through the disciplinary process. Sometimes the accused person actually resigns very quickly, before the disciplinary case can be mounted. The case is not then pursued.
Under the new arrangements, such cases should be notified to the Department of Health. I sympathise with the noble Earl's arguments, but, as I understand his amendment, employers would effectively be prevented from notifying these people to the Department of Health, unless they have actually taken the case through the disciplinary process—or to a point where they can be confident on the balance of probabilities that they would have dismissed the person. There are many cases where it is highly likely that the employer would have dismissed the person, but where the case did not proceed through the

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disciplinary process because the bird had flown the coop. Those are precisely the kind of cases that should be placed on the list. Therefore, in all these cases we have to consider where the balance of doubt should rest. I suggest that it must rest in favour of the vulnerable people, not the member of staff.
Lord Hunt of Kings Heath: My Lords, the noble Baroness, Lady Barker, often teases me about the use of the word "balance". However, as the noble Earl, Lord Howe, suggested, getting the balance right is crucially important in these debates. I certainly share the desire to avoid creating the kind of situation where an employer is under an obligation to refer a person to the list in circumstances where dismissal is not a practical option. But the noble Earl's amendment would seriously restrict the type of case that could be referred to the list; and, indeed, it could create a serious loophole.
The amendments before us really cover the types of cases where an allegation has come to light that satisfies the criteria. However, before the employer has had the opportunity to complete his investigation, the individual either resigns or retires. Although the employer should undertake all investigations open to him, it may not be possible to conclude his enquiries. In circumstances where the employer has only been able to obtain one side of the story, it is difficult for him to conclude that he would have dismissed the individual. He could only conclude that he would have "considered dismissing" the individual. It is not a matter of the employer briefly contemplating dismissal, as suggested by the noble Earl; indeed, dismissal would have to be a serious option. In such circumstances, the tests that are applied to other cases referred to the Department of Health would still be applied. If there is insufficient evidence in the information sent by the employer to the Department of Health to justify provisional listing, obviously the person concerned could not be listed.
The problem here is that excluding such classes of case from the legislation would leave a serious loophole, which may enable an abuser to leave his employment as soon as an allegation was made and before the employer had had an opportunity to complete the investigation. Such a person could fly the coop and be free to take up employment where he or she could once more put vulnerable adults at risk. For that reason I do not think that it is possible to accept the amendment.
10 p.m.
Lord Jenkin of Roding: My Lords, before the noble Lord sits down, it would be extremely helpful if he could give us some idea of the time lapse before such a person—against whom a suspicion had been aroused which was then notified to the Secretary of State under this clause—would be able to prove his innocence, as it were. How long would he remain on the list? Obviously there will be a great variety of cases, but are we talking about weeks, months or a year or more?
Lord Hunt of Kings Heath: My Lords, it clearly could be months in the sense that if the person was
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referred to the Department of Health and if it was considered that that person met the criteria for provisional listing—either on the information the employer provides in the first instance, or after the department's officials considering the matter have sought further information—that person would be provisionally listed. There then follows a process whereby permanent listing is considered and where the Secretary of State invites observations from the worker, if he can be found, and from the provider. When the Secretary of State has considered that information, he would determine whether that person should be permanently excluded. I would hope that that process would be undertaken within a fairly short time, certainly within a matter of months.
Earl Howe: My Lords, this has been a helpful exchange although I have to say that I am left feeling as uneasy as I did when I first rose to speak. I understand completely that there are situations where, as I think the noble Lord, Lord Warner, put it, the bird has flown the coop and it is necessary for the employer to reach a judgment about the conduct of that person in his or her absence. The point I sought to make is that it seems inherently unsatisfactory that a referral could be made where there is doubt about a person's guilt or innocence. Why not require the employer to reach a definite conclusion; in other words, require him to conclude on the available evidence, even if the evidence is one-sided, that he would have dismissed the individual?
I realise that provisional listing is not at all the same thing as having one's name confirmed on the list and that the tests for having one's name confirmed on the list are set out in subsections (5) to (8). I note that one of those tests is that the Secretary of State must first be of the opinion,
"that the provider reasonably considered the worker to be guilty of"
relevant misconduct. I am not sure how compatible that wording is with the words that my amendments have highlighted, but it implies that the employer must not then be in doubt about the person's guilt or innocence. I do not know whether I have read too much into that wording but that is how it appears to me.
Nevertheless, I shall read carefully what the Minister has said and, indeed, what the noble Lord, Lord Warner, has said with all his years of experience, as I greatly respect his views. Between now and Third Reading I shall consider the matter further. Meanwhile I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 112 not moved.]
Lord Phillips of Sudburymoved Amendment No. 113:
Page 43, line 39, at end insert ("if it appears to him that, unless such a provisional listing is made, there is a risk that any person will suffer significant harm.").
The noble Lord said: My Lords, I shall not this evening repeat many of the statements that I made in earlier debates on this crucial section because I

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apprehend that nearly everyone in the Chamber suffered my earlier effusions. None the less, I shall, if I may, make some detailed analysis of what we are contending with.
As will be well known to the Minister and to the House, we on these Benches consider that the blacklisting procedure laid down in the Bill—which is a precise copy of the one contained in the Protection of Children Act 1999—is seriously defective and apt to lead to serious injustice. That, we maintain, is not simply a matter as between the ex-employer and ex-employee; it is not merely, if one can use that word, a matter of protection of vulnerable adults; it is much more a question of how the whole of this blacklisting procedure will or will not broadly underpin the purposes of the Bill, to which all of us subscribe. As I have made clear in the past, it is our view that the set of procedures in Clause 72 leans over so far in favour of protection that in the long run it will undermine that very purpose.
Let me start by drawing the attention of the House to what must be proven in order for a provisional listing to take place, and then for a permanent listing to take place. That is the nub of all this. First, if one looks at Clause 72, one finds that the Secretary of State, through a civil servant, will have to consider the question of a provisional listing behind closed doors, without any reference at all to the person complained against, if I can use that phrase. It will be useful to talk about the "complainee", and the "complainer", being the ex-employer.
Then, under the terms of subsection (4), the Secretary of State will have to make a decision on the basis of the information submitted by the complainer—that is to say, the civil servant will. He cannot go any further; he cannot go back to the complainer; he certainly cannot go to the complainee. He must reach a decision which will have an instant and cataclysmic effect on the reputation and livelihood of the worker concerned. He or she will be instantly debarred from any further employment within his or her industry, if I can use that word. It may be someone who has spent 10 years gaining qualifications and experience; none the less, this procedure will debar him or her instantly.
We then come to the permanent listing criteria. When permanently listing, must the civil servant have been "satisfied beyond reasonable" doubt that the worker concerned had been guilty of misconduct and was no longer suitable to work with vulnerable people? No. Must the civil servant at least have been "satisfied" that the worker must be disbarred? Not even that. He need only be "of the opinion". Opinion as to what? That it is in the public interest that the worker should be disbarred? No. Is it an opinion that the ex-employer has fairly found the worker guilty of misconduct? Is it that test? Not even that. The test to be applied in deciding whether or not to permanently list is whether, at the time of the dismissal, the employer reasonably considered the worker guilty of misconduct—I emphasise "at the time of the dismissal"—so that, if new facts emerge during the
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course of this extremely truncated inquiry which cast severe doubt on the facts as they appeared to be to the employer at the time of the dismissal, those are irrelevant. He can only look at what was reasonably considered at the time of dismissal.
As regards the case where the employer subsequently hears of information which might—had the employer known about it, but which may not be fact—have led him or her to have considered dismissing the employee, the test is based on, first, the opinion of the Minister; and, secondly, on the conjecture of the former employer as to the risk of misconduct—not actual misconduct—which does not have to have been in the course of the employment; does not have to have involved physical harm; does not have to have been abusive and does not have to have been intentional.
We say that of course the law must be swift to protect vulnerable people. We have too many instances in our own times of severe misconduct on the part of those in whom great trust is reposed as regards looking after children and vulnerable old people. But what perplexes us is why this extremely flimsy framework of protection should be satisfactory to the Government in this Bill, particularly as in the selfsame Bill a procedure is laid down as regards childminders in Clause 69 which, if passed, will see Part XA incorporated into the Children Act 1989.
There we see a set of procedures where there is no debarring of a childminder under Clause 69 without, first, an open court application to an independent justice of the peace where he or she will be able to cross-question the applicant in open court and where the applicant will not be, as may be the case here, a disgruntled former employer, but is, and has to be, an independent professional; namely, Her Majesty's Chief Inspector of Schools or the National Assembly of Wales, where, by dint of the registration procedure, he or she will have a great deal of knowledge of the childminder concerned and will have had inspections which would have added to that knowledge and where the test that the magistrate must apply before giving professional or emergency relief to the applicant is that the child is "likely to suffer significant harm" unless the application is granted.
The amendment that I recommend this evening is different from the one that I put forward with my colleagues in the past. It does not say that in the case of provisional listing the civil servant has to find that there is "likely" to be significant harm. I have conceded that in an effort to go towards meeting the Government in this matter. I have not included that test of likelihood, but merely that there is a risk that any person will suffer "significant harm" unless the provisional order is given. We believe that to incorporate the same phrase "significant harm" in circumstances where there is no open court hearing and no independent judge or professional applicant is the very least that this House should agree to in order to provide a minimal framework of protection for, in this case, vulnerable carers. The point is that we are all vulnerable to an unjust procedure. We believe that this procedure is just that.

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I suggest that the House looks with the greatest possible care at what the Government are trying to do through this Bill. In leaning over backwards, as we would say, to protect the vulnerable, the Government are abandoning some of the age-old common-sense criteria of fairness which have stood us in good stead not merely for decades but for centuries.
The Bill invites us to form the view that in protecting vulnerable adults to the hilt we must accept that a price may have to be paid, and we must accept too that that price may be—and we would say is bound to be—unfairness to workers. There are two assumptions which underlie this approach. First, that the civil servants involved will work fairly according to the extra statutory guidelines which the Government say that they will bring forward, and that this will make sure that all is well, and that anyway there will be a right of appeal to the Tribunal, after of course conviction for misconduct by the civil servants working in private, never seeing either party.
Secondly—and this is a favoured tabloid cry—I suspect there is an undercurrent of belief that innocent workers will have nothing to fear in all this. My answer to the first proposition, which is the bias in favour of the vulnerable, is that two grievous wrongs can never make a right. Whatever means we employ to deal with intolerable abuse of children and adults, it can never be right to do justice by them at the expense of justice to carers. For in the face of injustice, as I have said, we are all vulnerable. Furthermore, a society which takes short cuts with justice, for however worthy an end, undermines irreparably our own long-term health and vigour, on which of course the fate of the vulnerable particularly depends.
As for the adequacy of the blacklist procedures, it ill becomes the Government—the government which after all has been the author of the Human Rights Act —to plead the bureaucratic case, as I would put, that all will be well because the civil service will be fair. Civil servants are not gods. The burden placed on them by Clause 72 would need for them to be gods if they were to work it satisfactorily and fairly.
I must confess that I have not been able to find any parallel with the paucity of just protections that the Bill is providing in Clause 72. My objection has nothing to do with the ability or fairness of the civil servants who will operate Clause 72, it is simply that the process it provides is guaranteed to obstruct fairness.
Therefore, I conclude by saying that there are many variegated circumstances to which Clause 72 will apply. For example, it is a more open field than prevails in relation to schools. We are dealing here with thousands of small private homes and domiciliary care of all kinds, including charities, voluntary agencies. This is not like List 99 or the Consultancy Service Index, which is based upon highly and professionally regulated employment circumstances.
Perhaps I may just point out that the disincentive which I believe the Clause 72 blacklist will in time create against carers going into the field of care for adults is a real one. Today I met with the chief
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executive of the Scouts Association, who told me that the impact of the Protection of Children Act last summer is already being felt within the Scout movement. They have over 100,000 young people waiting to get into cubs and scouts troops who cannot engage in those extremely beneficial activities because there are no leaders to lead them. They say that one of the major causes of the lack of men and women coming forward to undertake those roles is the extreme jeopardy they feel. One element of that is, as I say, this Clause 72 procedure.
The other point is that the cost of Clause 72, as and when the new list is up and running, is likely to be utterly extortionate. I also refer to the opinion of Professor Jowell, to which I referred in a previous debate, in which, as one of the most distinguished administrative lawyers in the land, he opined that Clause 72 is offensive to basic human rights as laid down in administrative law.
For all those reasons and many more I urge the Government as strongly as I can to review this matter and come back to us at the next stage. I am grateful to the Minister for his patience in putting up with my advocacy between this debate and the previous one and indeed for that of his civil servants. But I do not apologise for pursuing this matter with a degree of intensity because I believe that a great deal hangs upon it—more than may currently appear to the Government. I beg to move.
Baroness Pitkeathley: My Lords, I hope that your Lordships will forgive me if I speak with rather more emotion than I am wont to do in your Lordships' debates. I have been moved to do so by the use of the words "serious injustice" and "instant and cataclysmic effect" by the noble Lord, Lord Phillips. As he was speaking, I was thinking of my years as a social worker in Manchester's Moss Side and in Basildon in Essex. I think very much of the vulnerable adults and children who themselves have had serious injustice meted out to them and whose lives have suffered an "instant and cataclysmic effect" because we were not able to bring such measures into play in order to protect them. Only last year I was contacted by the solicitor of a young man whom I supervised 35 years ago. He was trying to bring a case because his life had been seriously affected by the abuse he had suffered in a home. We all knew that he was suffering abuse but we had no means of bringing the abuser to book.
We all know that abusers currently evade the systems. We know that they abuse in one place and then go on to abuse in another because there is no follow-up system. It is essential that we have proper watertight systems to ensure that people do not escape checks. I am sorry to say it, but I believe that the amendment would seriously weaken our powers to stop the kind of abuse that I have seen in my professional life. I am desperate to ensure that it does not happen again. I agree with the noble Lord that we

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must be swift and sure. But if a balance is to be struck, we must err in that balance on the side of the abused adult or child.
Earl Howe: My Lords, the noble Lord, Lord Phillips, has teased out some extremely important strands of this very complicated issue. The House will be grateful to him for that. I should begin my brief remarks by reiterating my wholehearted support for the principles and policies underlying these provisions of the Bill. What worries the noble Lord, Lord Phillips, and others of us is the scope for error and misrepresentation, whether innocent or malicious, on the part of the person referring someone's name to the Secretary of State. The result of such error or misrepresentation could be that a worker could find his or her name included on the provisional list quite unjustly and perhaps for an extended period. The Minister may be tempted to say to this that it is only a provisional listing. But we should not be in any doubt of the stigma that will attach to an individual in these circumstances or of the point of principle that this process contravenes; namely, that only an overriding risk to the public can justify the infringement of an individual's right to the normal freedoms, one of which is not to have his name officially and publicly blacklisted without at least a measured assessment of the evidence.
There are lines in the sand, sometimes not easy to determine, which should not be crossed in a free society. I am not convinced that the provisions of this part of the Bill fall on the right side of the line. The Bill takes the precautionary principle to the limit by seeking to protect the public in all conceivable circumstances of referral. Like the noble Lord, I question whether that is the right approach. The merit of the amendment is that it recognises the need to protect the public in cases where there is a risk of significant harm to vulnerable adults. The name of anyone who is seen to pose such a risk would be placed on the provisional list immediately. Those who clearly did not fall into that category—it is easy to imagine cases of misconduct arising from inexperience rather than malicious intent—would have their cases considered by the Secretary of State in the normal way, and their names would be included in the list if the conditions laid down in subsections (6) and (7) were met. I have no difficulty with that.
I realise that the amendment may be open to the objection that it poses questions of interpretation. That may be so. But the question is whether that is a price worth paying for the sake of avoiding injustice and the infringement of liberties. I believe that it is, and I urge the Minister to give this matter the most careful consideration.
Lord Rix: My Lords, first I pay tribute to the sterling work undertaken by the noble Lord, Lord Phillips of Sudbury, on behalf of Mencap during its recent transformation from an exclusively parent carer organisation to a body representative of people with learning disabilities. Last Saturday was an historic
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climax to this important work when for the very first time people with learning disabilities took their place on Mencap's national assembly, or policy making body.
In view of the noble Lord's efforts on behalf of Mencap, and his eloquent arguments in support of the amendment, it grieves me that as President of Mencap, having consulted my colleagues, I am unable to support the noble Lord's amendment. While I acknowledge his concerns and those of other noble Lords, I feel duty bound to examine the matter from the perspective of the welfare of vulnerable adults who receive care.
People with learning disabilities are especially likely to be abused for many reasons. These range from the general lack of value which society places on people with learning disabilities to the lack of choice and control that some adults have over their own lives, and more specific considerations such as the likelihood of living away from home and increased exposure to medication which has the potential for misuse. People with learning disabilities often rely on multiple carers in a variety of services and may face the additional problem of very limited ability to communicate about abuse.
A comprehensive register will offer comprehensive protection for vulnerable adults. That protection inevitably must be weighed against the civil liberties of individuals who are suspected of abuse. I believe that the Bill achieves the right balance. The Bill errs on the side of caution by placing known abusers, and those suspected of abuse, on the register but allowing a right of appeal to all and for evidence to be examined afresh and a detailed examination to be made of the way in which the decision has been reached. It is worth reminding noble Lords that there can be no laxity in these matters. The Bill has been assessed as being fully compliant with the Human Rights Act.
The noble Lord, Lord Phillips, has expressed to me concern about the impact of the stringent new measures on recruitment. He rightly recognises that many establishments already experience problems in filling care staff vacancies. However, I believe that any recruits deterred by the measures contained in this Bill should, in all probability, be deterred. There are many talented and dedicated staff working in the care industry. This legislation should ensure that even more join in future years. Quality needs to be preserved, not diminished. While recognising the strength of feeling on the matter, and indeed the complexity involved, I would, of course, expect the Minister to make a full assessment of concerns of the noble Lord, Lord Phillips. I await his response with interest.
10.30 p.m.
Lord Jenkin of Roding: My Lords, I have listened to this argument today as I listened to and took part in the corresponding debate in Committee. One thought crosses my mind. I would that there was a large audience listening to this debate of profound significance in which considerable differences of

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principle have to be argued through and a conclusion reached. However, we are debating the issue at a late hour of the night, and largely talking to ourselves.
I find myself leaning in favour of the arguments of the noble Lord, Lord Phillips of Sudbury. Perhaps I may address one remark to the noble Baroness, Lady Pitkeathley, and one to the noble Lord, Lord Rix. I address the noble Baroness. What on earth does one lose by inserting,
"if it appears to [the Secretary of State] that, unless such a provisional listing is made, there is a risk that any person will suffer significant harm"?
The noble Baroness referred to a case in, I think, Moss Side. I could understand that she was seeking the machinery that this section sets up and which is supported by noble Lords on all sides of the House. I remain to be convinced that the test suggested by the noble Lord, Lori Phillips—that there is a need to be satisfied that there is a risk of harm—would prevent the case being dealt with as the noble Baroness would like. Such a test would simply have tilted the balance so that the injustice to the individual—as it might well have been—would have been incurred because there was perceived to be a risk of harm. Someone may have retired and no longer be working with vulnerable people. There is no risk of harm in those circumstances. Why should a provisional listing be made at that stage?
I have, and have had over many years, enormous respect for the noble Lord, Lord Rix, and the work he has done through Mencap. I believe that he is being over-optimistic when he suggests that the existence of this draconian procedure for weeding out the people likely to abuse vulnerable people will encourage others to go in for that kind of social care. I suppose that in the very long run, if such a procedure leads to the drying up of the cases, the ending of the tabloid witch-hunts so that that aspect becomes as much part of our social history as the real witch-hunts of centuries ago, that belief is conceivable.
The Scouts may be only one example. I fear that there must now be many people who feel that there is a risk in dealing with children; that there is a risk in dealing with vulnerable adults: that someone, whether from malice or for whatever reason, will accuse an individual of being an abuser. Instead of being able to argue the matter, and to say, "This is not true. I am being wrongly accused. This is all entirely misconceived", that person will find his name whisked off to the Secretary of State and that he is on a black list before he has had an opportunity to do anything about it. I can conceive that younger people who may well have been attracted to the idea of entering this type of service would find that a very alarming prospect. Therefore, I believe that in an effort to go, as it were, over the top in order to protect vulnerable people, in the end one may do them more harm because it would 3e increasingly difficult to find people of the right quality to look after them.
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I believe that importing, as the amendment does, the need for the Secretary of State to be of the opinion that there is a risk that a person will suffer significant harm is a very necessary test before a name goes on the provisional list. Therefore, I support the amendment.
Baroness Masham of Ilton: My Lords, perhaps I may intervene before the noble Lord, Lord Warner, rises to speak because he may be able to answer the questions that I want to ask. Let us suppose that a person's name goes forward to the Secretary of State but the person concerned maintains that he is innocent. If he does not "fly away", will he still be paid and employed, or will he be suspended with pay, or dismissed?
I take this opportunity to say, as I have said before, that I feel that it is very important for children's homes and care homes to have independent visitors who know the staff and the residents and who are able to stop any abuse taking place. I say this as a member of a board of visitors of a young offenders' institution. That is just what we used to do; we could feel what was happening, and see and talk to people.
Lord Warner: My Lords, I rise to attempt to bring us back to earth a little regarding what takes place at the local level. I shall relate one or two cases which, from my dim memory, I can recall as examples of the type of issues with which we are dealing. I remember two cases very vividly. In one, the driver of a bus carrying people with serious learning difficulties sexually abused a young girl at the end of the journey. In another case, a care worker in an old people's home beat up elderly people. We are talking about seriously vulnerable people who have been abused—sometimes badly physically abused. Let us keep that in mind before we go overboard in terms of a balance in favour of the civil liberties of some of the people who have been accused of abuse.
We should also bear in mind—this is where I believe that the noble Lord, Lord Phillips, has it wrong—that there are considerable checks at the local level before a case reaches the Secretary of State. We are talking about a set of circumstances in which there is scope for hearings and disciplinary processes, and there are no incentives to malicious—
Lord Phillips of Sudbury: My Lords—
Lord Warner: I shall give way to the noble Lord, but perhaps I may at least employ the argument before he asks me any questions. We are talking about a set of circumstances in which people at the local level have many checks on employers who misbehave. Yes, there are. I see the noble Lord, Lord Clement-Jones, shaking his head. We have checks in the system. However, I suggest to the noble Lord that some of us who have worked at the local level, who have run these services and have registered other bodies which provide these services, have some experience in this matter.
I suggest to the noble Lord that there are checks in the system at the local level. There are no incentives to malicious employers to refer employees up the line to the Secretary of State. If, for example, a private home

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owner maliciously refers employees to the Secretary of State in this way, he will almost certainly draw his activities to the attention of the inspection authorities. In the future, he will draw his activities to the attention of the general social care council. He will bring odium upon himself and his operations if he behaves inappropriately with an employee. I suggest to the noble Lord that he considers this matter. I did not hear in his speech any recognition of the checks and balances which take place at the local level before a case comes forward.
Lord Phillips of Sudbury: My Lords, I am grateful to the noble Lord for giving way. He talks—I am almost inclined to say "blithely"—about the universal presence of those checks. Will he tell me what check there is in relation to a typical small private home for half a dozen old people where an employee who has been there for 10 months is sacked? What checks are there?
Lord Warner: My Lords, I do not know what the grounds for the sacking would be.
Lord Phillips of Sudbury: My Lords, any grounds.
Lord Warner: My Lords, we are not talking about any grounds. We are talking about grounds on which the employee is removed and his name referred because of allegations of misconduct against one of the residents of the facility.
Lord Phillips of Sudbury: My Lords, but the noble Lord was making the point—
Lord Burlison: My Lords, I remind the noble Lord that the Companion states that a noble Lord should speak only once in the debate.
Lord Warner: My Lords, with the permission of the House, perhaps I may complete what I was going to say before I was interrupted.
We are not talking about employees who were sacked for bad timekeeping or raiding the till. We are talking about employees who are sacked or who resign after accusations of abuse against vulnerable people. We are not talking about the Scouts and children. This provision is in relation to vulnerable adults who are in no position to defend themselves in many of those cases.
I believe that the noble Lord has got it wrong. It is the civil liberties of the vulnerable people that we are trying to protect here. These processes are there to protect those particular people. I strongly suggest to the House that we do not support this particular amendment.
Lord Clement-Jones: My Lords, before the noble Lord sits down, he keeps referring to the process as though it is inevitably only subsection (2)(a) which will apply; that is, that the provider has dismissed the worker. He has completely ignored paragraphs (b), (c)
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and (d), which give grounds for placing someone on the provisional list in other circumstances. In particular, on an earlier amendment, the noble Earl referred to the circumstance where the employer would have considered dismissal. In that case, there would have been no process. Is the noble Lord not being rather optimistic about how that process will operate?
Lord Warner: My Lords, not at all. If, in the particular case which the noble Lord is talking about, the person has resigned and left, he may well have left because he was fearful of the process which would have led to his eventual dismissal after the full truth of his activities had emerged.
Lord Clement-Jones: My Lords, but does the noble Lord not agree that the processes would not have been in train?
Lord Mackenzie of Culkein: My Lords, I hesitate to keep the discussion going at this late hour but I feel strongly about this matter. I want to say something about this from two perspectives: first, from the perspective of my younger years as a nurse with responsibility for managing other nurses and for aspects of healthcare delivery; and, secondly, at a second stage in my life, from the perspective of a healthcare trade union officer representing members before disciplinary and appeals tribunals of health authorities or disciplinary committees of the nursing and midwifery statutory bodies.
In the first of those incarnations, I was rather intolerant of any bad practice. But in the second, I used every adversarial and advocacy skill to get my member off or to mitigate the effect of any penalty. But, after a successful case, I would sometimes go home in the evening and wonder what on earth I had done. However, like, I am sure, every lawyer representing someone before the courts, I would rationalise my position by saying that I had a job to do and it was for the other side to prove its case.
So I know about focusing on the rights of workers and I know also of the ambivalence of anyone concerned about care delivery and standards and sometimes, I think, the fear that someone is free to repeat an offence because of one's advocacy.
The reality is that the vulnerable patients and clients must be protected and no one here this evening will depart from that. I suspect that a number of years ago, I should have been tempted to put forward some of the arguments advanced by the noble Lord, Lord Phillips. But, given the recent scandals that have emerged, I do not believe that we shall be lightly forgiven by the public if we do anything other than take effective steps to ensure that the guilty abusers do not move from one job to another.
The issue is whether that much-discussed balance is right; namely, the balance between the rights of vulnerable people and the rights of the worker. It is certainly not easy. If this matter stood in isolation, it might be argued that it has the appearance of individual responsibility, with poor management and

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poor care delivery getting off scot-free while the worker carried the can. In such cases, I might just be inclined to agree with the noble Lord, Lord Phillips. But this is part of a much bigger regulatory picture. Poor management and poor care standards can be brought to account in other ways in this new system.
There is an absolute right of appeal to a properly constituted tribunal against any decision to be listed, and I think that is a great step forward. I believe that my noble friend the Minister has the balance—albeit a very difficult balance—just about right.
Lord Hunt of Kings Heath: My Lords, my noble friend Lord MacKenzie really put his finger on it when he talked about the difficulty of coming to the right balance. Clearly, from our debates tonight there is some degree of disagreement on where the line, or balance, should fall. I am confident that we have got the balance in the right place.
I am also confident that these provisions, far from inhibiting people from wishing to work in a care setting in the future, are part of a whole set of arrangements contained in this Bill which in the long term, if not the shorter term, will lead to the whole care setting having a more professional, more developed, and more highly trained and qualified workforce. As such, I am convinced that it will become more attractive for people to work in. The legacy of these inquiries into horrendous cases of abuse which we have seen over the years has in itself deterred entrants to the profession.
Let us consider the general social care council, which is just one element of these measures, and the impact that that will have in determining the greater professionalism of the whole workforce, aligned to the system that we are putting in place to protect vulnerable adults. That will enhance the attractiveness of this profession in the future.
These clauses in the Bill, and indeed the protection of children list on which they are based, are the result of the evolution of the Consultancy Index. This has been run by the Department of Health for some 25 years, after it had inherited it from the Home Office, and it has been operated on a non-statutory basis until now.
In 1998–99, the Home Office led an interdepartmental group to prevent unsuitable people working with children and abusing trust. The group recommended that certain people, including criminals convicted of particular offences, should be prevented from working with children. The group also considered that the protection of vulnerable adults should be dealt with and recommended that there should be a workforce ban on people who abuse vulnerable adults, as no such protection then existed. Part VI of the Bill implements this.
Until we brought forward this Bill, no sure method existed of offering a degree of protection to many vulnerable adults from those who cause them harm or put them at risk. That contrasted with the case of children, for whom at least we have the Department of Health's Consultancy Index, and, indeed, the DfEE's
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List 99. They operated to keep unsuitable people from working with children. The lack of assistance to protect vulnerable adults meant that unsuitable workers might be dismissed from one employment, only to find new employment in a similar position at an establishment, agency or hospital just down the road.
That is unacceptable. Over the years there have been examples of service failure where workers, as a result of neglect or of deliberate acts, have caused harm to elderly people or to adults with learning disabilities. One can point to a number of examples, such as the Longcare case, where adults with learning disabilities were treated very badly in a number of homes until inspectors stepped in and closed the homes concerned. After that happened there were examples of nurses employed at the home at the time who subsequently were able to obtain employment in another care setting.
The protection of vulnerable adults scheme requires the Secretary of State to keep a list of persons who are unsuitable to work with vulnerable adults. It provides that those listed are prohibited from taking employment in a care position looking after vulnerable adults. Overall, the system is similar to that provided for in the Protection of Children Act 1999 which your Lordships passed some months ago.
An individual must be referred to the Secretary of State for possible inclusion in the list by an employer who has dismissed him on grounds of misconduct which harmed a vulnerable adult or placed him at risk of harm. As we have already heard, to prevent avoidance of the scheme, special provision is made to catch those who have resigned so as to avoid such disciplinary action or who have been suspended, transferred, or provisionally transferred. On referral, the Secretary of State will provisionally list the individual if it appears that it may be appropriate to include him in the list. That person will then be subject to the prohibition from working with vulnerable adults.
The Secretary of State then goes on to disclose the referral papers to the person and to invite observations from him and, if appropriate, further observations from him on any observations made by the referring employer before reaching an opinion as to whether the employer reasonably believed that the person was guilty of misconduct and whether the person is unsuitable to work with vulnerable adults. If both those tests are passed, the permanent listing is confirmed.
That is the point at which the person has the right to take his case to the independent tribunal. The tribunal will remove the person from the list unless it is satisfied that he is guilty of the misconduct and that he is unsuitable to work with vulnerable adults. The tribunal therefore provides a full hearing of the underlying merits of the case with a burden of proof favourable to the applicant. The applicant will have a right to make oral representations to the tribunal.

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I should like to emphasise the responsibilities that employers will have in order for the scheme to operate effectively. I turn to a point debated earlier. First, an employer proposing to offer employment in a care position must, before making the offer, check whether the person is on the list. If he is on the list, the employer cannot employ the person in a care position as defined in Clause 70. Secondly, the employer has a duty to refer workers to the Secretary of State for inclusion on the list under the circumstances that I mentioned earlier.
The noble Lord, Lord Phillips, referred unfavourably to the urgent deregistration procedures for child-minders in Part V. Those can be activated only, as he said, where a child is likely to suffer significant harm. In the case of the child-minder, it is only through the action of the Ofsted inspector undertaking an emergency deregistration that the child-minder will be prevented from working with children. In the case of a person referred to the vulnerable adults list, the employer will already have removed the worker from a situation where he may be in contact with vulnerable adults. It is not meaningful to imagine that the likelihood of harm can be assessed in those circumstances.
The issues around provisional listing essentially boil down to this: every person referred to the list should have a right to have the allegations against him proved. If one accepts that point, one is inevitably faced with the question of what to do between the time when the Secretary of State is notified that the employer has already taken disciplinary action and the time it takes for the allegations to be proved at an independent tribunal. Either one takes the stance that no action should be taken to protect vulnerable adults during that period, or one can ensure that precautionary action is taken pending proof.
We have heard that many people in the field believe that it is high time that the Government ensured that effective precautionary action is taken. I agree. That is why provisional listing is a central part of the scheme. In addition, there is an extra safeguard for the worker in ensuring that he comes off the list even before the case goes to a tribunal, unless the Secretary of State believes that there is a reasonable basis for the allegations.
I turn specifically to the amendment. When we discussed the matter of restricting provisional listing I expressed my fears that such a move would seriously weaken the scheme we devised for protecting vulnerable adults. The whole concept of provisional listing provides the important safeguard we require for vulnerable adults.
I am aware of the effect that provisional listing can have on an individual and his or her future. Provisional listing is not something to be taken lightly. However, perhaps I may say to the noble Earl, Lord Howe, that the list is not published as such. The fact of listing is only disclosed to those who are required to check. I assure noble Lords that provisional listing will not happen in every case which is referred to the
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Secretary of State. It will not be a matter of an employer making a reference and the Secretary of State reacting by immediately listing an individual provisionally.
Each case will be considered on its merits. The Secretary of State will have to be satisfied that provisional listing is the thing to do in each case. He will have to make a decision that the employer has made a proper reference and that provisional listing is warranted. If necessary, he can go back to the employer and seek additional information if the reference is unclear or incomplete.
We are concerned to ensure that the Secretary of State is able to take a broad view of everyone concerned in a referral when he considers whether it is appropriate to include a worker in the list provisionally. I believe that including restrictions on this on the face of the Bill would detract from the ability of the Secretary of State to act in the best interests of all concerned. It could raise issues of interpretation. I suggest it would raise an impossible test for these arrangements. People are referred to the list only after the employer has taken them away from caring for vulnerable adults.
I do not take lightly the concerns expressed by noble Lords. We have clearly heard a division of view as to where the balance rests in these cases. However, I have thought long and hard about this. At the end of the day, I am convinced that we have got the balance right.
Lord Phillips of Sudbury: My Lords, I am grateful to the Minister for explaining so clearly where the Government stand. I am grateful, also, to other noble Lords who participated in this mini-debate.
I have to say that I think there has been some misunderstanding, particularly on the part of t he noble Lord, Lord Warner, as to the circumstances in which the procedure starts to roll. In many of the smaller homes and institutions there will have been no procedure, no protection, no tribunal, just a sacking. We are all at one that where that sacking has been for good reason it is entirely right that somebody should be put on the provisional list if there is, indeed, significant harm in prospect for old people. However, the whole point of the amendment and the concern on this side of the House is in respect of those cases where the sacking or suspension will not have been fair. Where it has not been fair, where there has not been a tribunal and where, therefore, the care worker has been unjustly dealt with, the provisional listing procedure will not apply. There will be no reference to the worker concerned. Unlike the childminding provisions and, indeed, the emergency protection orders for children, there will be no independent judge and no threshold, significance, seriousness or likelihood. That is why we have pressed the matter so hard.
Speaking for my own part, I confess that I remain unconvinced that the protections provided by the section dealing with childminders should not be applied in this circumstance also without any damage to the purposes we all share.

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However, one must leave it at that. I shall withdraw the amendment but reserve the right to bring it back at the next stage of debate when more noble Lords will be in the House to participate. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
11 p.m.
Lord Phillips of Sudburymoved Amendment No. 114:
Page 43, line 46, at end insert—
("(c) afford tie worker and the provider an opportunity to make oral representation to him; and
(d) if at any stage he considers that the reference ought in fairness lo be determined by the Tribunal, notify the parties and transfer the same to it.").
The noble Lord said: My Lords, in moving this amendment, I can be a great deal shorter. It proposes to introduce two additional paragraphs to Clause 72(4). I hope that their intention is clear.
As I have already explained, we are anxious about the difficulty of the task given to the civil servant here. He or she must deal first with provisional listing and then with permanent listing. To those noble Lords who rest content at the thought that there is in place a right to appeal to a tribunal, I put it to them that in the interim the person concerned will have lost his or her career and reputation.
Although it is true that the list is not made available for public inspection, it must be searched by everyone who is considering employing anyone in the care industry. For that reason, the list will quickly become public knowledge and as such will be open, for example, to local newspapers to report with impunity. We feel, first, that it will be of great help to the civil servant concerned if he or she gives both the worker and the provider an opportunity to make oral representations. Secondly, if the civil servant considers that the matter is mired in complexity by being presented with two conflicting versions of the truth, reality and facts of the case, he or she can then, without more ado, refer the matter to the tribunal so that it can deal with it.
Perhaps I may make two further points. First, in the course of undertaking the Herculean task provided under Clause 72, the civil servant must try to weigh up whether the worker is suitable to work with vulnerable adults. Frankly, I cannot see how anyone can sensibly reach such conclusions without having had an opportunity to meet and speak to the worker concerned. Secondly, Clause 72(6)(a) stipulates that when considering permanent listing, the civil servant must consider not only information submitted with the reference from the complainant, and any observations submitted to him by the counter-complainant, but also,
"any other information which he considers relevant".
The Bill offers no guidance as regards the basis on which the civil servant should search for such "other information". I put it to the Minister that it may be extremely helpful, when exercising that particular power, for the civil servant concerned to have an
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opportunity to meet and speak to the complain ant and, indeed, the counter-complainant. On purely practical grounds—and very much in the spirit of what the Government seek to achieve here, and consistent with the protestations made by the Minister of the Government's wish to play fair—I hope that the Minister will consider that Amendment No. 114 represents an improvement. I beg to move.
Earl Howe: My Lords, having added my name to this amendment, I should like to emphasise to the House that I am in complete sympathy with the proposals made so eloquently by the noble Lord. I hope that the Minister will consider these proposals seriously.
Lord Hunt of Kings Heath: My Lords, let us continue the debate. Perhaps I may reflect on the proposed scheme. The intention is that the Secretary of State will write to the individual seeking his comments on the referral. He may seek the individual worker's comments again where there are clear discrepancies between the employer's referral and the worker's comments. All comments made by the worker on the referral will be taken into account when the Secretary of State comes to make his decision on whether to list an individual permanently.
It is important to remember that a person who has been referred to the list will be considered for permanent inclusion only after the employer's disciplinary procedures have been completed. I think that it is most important to stress that. At that stage, the worker would have been able to put his case in full. The Secretary of State makes his decision based on the outcome of that process.
Lord Phillips of Sudbury: My Lords, I am grateful to the Minister for allowing me to intervene. Does he accept that in many cases there will be no disciplinary procedure?
Lord Hunt of Kings Heath: My Lords, I intended dealing with that a little later when dealing with the second part of the amendment. Essentially, the Bill will ensure that in the future all establishments that are regulated under its provisions will have to have employment procedures that are up to scratch. But perhaps I can come back to that.
What I was going to say in relation to oral representations was that, based on what I have just said and the fact of the ability to appeal to a tribunal, that is the stage when it is appropriate for oral representations to be made; that is, where a tribunal conducts a full investigation of the facts and where oral representations will be a key part of that. I believe also—the noble Lord referred to the practicalities of this—that if we were to add the right to make oral representations after written representations, it would lead to the listing process taking longer, so effectively delaying the time when the Secretary of State makes his decision, in turn leading to delay in the time a person can apply to the tribunal. That is a factor which should be considered.

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I turn to the second part of the amendment in support of an earlier reference to the tribunal, in the protection of vulnerable adults scheme. We feel it is right that the Secretary of State should be able to come to a decision based on the employer's reference and the worker's comments on it. It will then be for the worker to choose whether or not he wishes to make an appeal to the tribunal against any decision by the Secretary of State to include him in the list of people banned from working with vulnerable people.
Let me come to the substance of the concerns raised by the noble Lord in relation to the employment practice of some of the establishments to be regulated under the Bill. It is worth making the point, first, that many employees will be protected by employment law and will have the opportunity of going to an employment tribunal if they consider that their employer acted unfairly against them. But it is important also that all services covered by the protection of vulnerable adults scheme will either be subject to registration by the national commission for care standards or be subject to direction from government—for example, in the case of the National Health Service.
Through those mechanisms it is possible for us to require employers to have proper procedures in place to deal with disciplinary action against employees, either through registration requirements or directions. The effect of that will be that a worker referred to the list will have more than one avenue to pursue if he thinks that the referral is wrong and he is being badly treated.
In addition, under the Bill as currently drafted, if the Secretary of State is unable to form the opinion both that the employer's view of the facts is reasonable and that the person provisionally listed is unsuitable to work with vulnerable adults, then he will have to remove him from the list. It appears to me that the amendment would actually lessen the protection for a provisionally listed person in that it allows him to remain on the list pending a tribunal hearing even where, for instance, the Secretary of State cannot say that the employer was reasonable to conclude that he risked harm to a vulnerable adult.
The procedure that we are proposing whereby the Secretary of State simply confirms or ends listing following written observations, following the process undertaken by the employer which will be subject to registration by the national commission for care standards or to direction by government in the case of the NHS, ensures that cases will be decided on a reasonable basis, and that at the end of day we keep the balance that is so very much needed in all these arrangements.
Lord Phillips of Sudbury: My Lords, before the Minister concludes, can he say how the civil servant will judge whether someone is suitable to be a care worker, without interviewing that person?
Lord Hunt of Kings Heath: My Lords, the whole basis of these arrangements rests on the paperwork
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that will be provided and upon which a judgment can be made as to whether the employer has acted reasonably on the basis of the disciplinary procedures. The tribunal exists to allow for a full hearing of the facts.
Lord Phillips of Sudbury: My Lords, I am grateful for the Minister's explanation of his unwillingness to accept my amendment. I have to say that his final comment does not deal with my point. In seeking to judge the second limb of the judgment—the first is the reasonable dismissal and the second is whether the worker is suitable to work with old people—I do not know of any employer on earth who would seek to make that judgment without seeing the person in respect of whom the judgment is to be made. I should have thought that that, of itself, would work in favour of this amendment.
However, I have to accept what the Government have said. I believe that the argument about the delay is a canard; indeed, it is up to the complainee to decide whether or not he wants to risk delay by going to see the civil servant exercising such huge powers. As regards employment law protection, I have made it clear again and again that the workers who are at most risk under this procedure of victimisation by employers are those who have not yet reached the stage of being protected by the employment law because they will not have served a full year in employment. I am most disappointed.
Lord Hunt of Kings Heath: My Lords, will the noble Lord accept that the remaining provisions in the Bill will ensure, through registration by the national care standards commission, that employers do have proper provision in place to deal with such issues?
Lord Phillips of Sudbury: Yes and no, my Lords. Even under the most fulsome codes of arrangement in, for example, dismissal, the noble Lord will find that gross cases of employee failure or breach permit the employer to sack the employee instantly. There will be cases where that will happen within the code that the Minister has said will be laid down by the Government in guidelines and, therefore, the people about whom we are concerned will not be protected. Moreover—and I return to the issue—if someone has served under one year in employment, his protections will be sketchy in any event.
Lord Hunt of Kings Heath: My Lords, the whole basis of the Bill is the effective regulation of the establishments about which we are talking. Through the national care standards commission we can ensure that the proper procedures are in place to deal with such issues. This will not be guidance; it will be effective regulation of the care sector. The very reason for having this Bill is to deal with the sort of homes that the noble Lord has mentioned. We must see this as a package of measures.
Lord Phillips of Sudbury: My Lords, I am trying hard to do so. However, as someone who has practiced

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the law for 35 years, I must make the point that it is all very well for the. Minister to say that the Government's guidelines will provide a system of adjudicating disciplinary procedures should one of these clashes arise; but it will be a disciplinary procedure exercised, run and decided by the employer. We have an independent employment appeals tribunal because such clashes will be between the employer and the employee. If there is unjustness in the way that the employer Ls exercising those disciplinary rights, the employee will not be able to go to the tribunal and will not, we believe, receive adequate protection under the Bill. That is why we persist in thinking that this is an important matter, which goes to issues of victimisation and, ultimately, to the confidence of employees in the whole procedure. However, I beg leave to withdraw my amendment, while expressing the reservation that I may wish to revisit the matter at the next stage.
Amendment, by leave, withdrawn.
[Amendment No. 115 not moved.]
11.15 p.m.
Clause 73 [Employment agencies and businesses: duty to refer]:
[Amendment No. 116 not moved.]
Clause 75 [Applications for removal from list]:
Lord Hunt of Kings Heathmoved Amendment No. 117:
Page 46, line 24, at beginning insert ("Subject to section (Conditions for application under section 75),").
The noble Lord said: My Lords, we return to further discussion on protection of vulnerable adults. Amendments Nos. 117 to 122 concern applications by listed people under the protection of vulnerable adults scheme to have their names removed from the list. At present anyone so listed can apply to have his or her name removed after being listed for a period of 10 years. That means full listed for 10 years: any period of provisional listing does not count for these purposes.
We are proposing easements to this scheme. First of all, we have an amendment to allow the tribunal to grant leave to an individual to be able to seek a review not just once after the first 10 years, but to be able to apply for review at subsequent 10-yearly intervals. I believe that that reflects our discussions on the then Protection of Children Bill as it progressed through the House. I am glad that we have been able to make that change.
In our discussions on the Protection of Children Bill, the noble Earl, Lord Howe, raised the issue of young workers who might be affected for life by being placed on the list. We certainly think that in those cases the option of a review after 10 years could be too harsh on a worker who was aged under 18 at the time of listing. These young workers would have been juveniles at the time of their listing. We are therefore bringing forward amendments to provide for such young workers to be able to apply to have their names removed from the list after a period of only five
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years—and, again, at five-yearly intervals. We think it right to make this distinction between workers listed as juveniles and those listed as adults.
There are two other amendments in this area. The first requires the listed person to prove that he is suitable to work with vulnerable adults before his name is removed. At first sight this might appear to be lessening the rights of the listed person. However, we think it right in these instances that the individual should take on the burden of proving that he is now suitable to work with vulnerable adults. He will be at an advantage over anyone else seeking evidence about his life since he was listed.
The other amendment allows the tribunal to remove a person from the list only where his circumstances have changed in such a way that it is proper that his name should be removed from the list. With these amendments we think that we have achieved a proper balance between the protection of the public and the rights of the worker when it comes to considering removing workers' names from the list.
We are also making amendments to Schedule 3. Amendment No. 203 allows the tribunal to obtain the evidence it needs for the purposes of a review. Amendment No. 204 requires the Secretary of State to consult the National Assembly for Wales before he makes regulations on related matters which will affect Wales.
In the protection of vulnerable adults scheme we are seeking to identify individuals who harm vulnerable adults and ban these individuals from the workforce. Since the Bill was last in your Lordships' House, we have further considered the definition of "harm". We are now putting forward Amendment No. 149 to provide for an extended definition of "harm" that takes into account the particular needs of adults who are mentally impaired. Amendment No. 150 provides a definition of what we mean in this Bill by an adult who is mentally impaired. I beg to move.
On Question, amendment agreed to.
Lord Hunt of Kings Heathmoved Amendments Nos. 118 to 122:
Page 46, line 24, leave out ("has been included (otherwise than provisionally)") and insert ("is included").
Page 46, line 25, leave out ("for a continuous period of at least ten years").
Page 46, line 30, leave out ("not").
Page 46, line 30, leave out ("remains") and insert ("is no longer").
After Clause 75, insert the following new clause—
CONDITIONS FOR APPLICATION UNDER SECTION 75
(" .—(1) An individual may only make an application under section 75 with the leave of the Tribunal.
(2) An application for leave under this section may not he made unless the appropriate conditions are satisfied in the individual's case.
(3) In the case of an individual who was a child when he was included (otherwise than provisionally) in the list, the appropriate conditions are satisfied if—

(a) he has been so included for a continuous period of at least five years; and

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(b) in the period of five years ending with the time when he makes the application under this section, he has made no other such application.

(4) In the case of any other individual, the appropriate conditions are satisfied if—

(a) he has been included (otherwise than provisionally) in the list for a continuous period of at least ten years; and

(b) in the period of ten years ending with the time when he makes the application under this section, he has made no other such application.

(5) The Tribunal shall not grant an application under this section unless it considers—

(a) that the individual's circumstances have changed since he was included (otherwise than provisionally) in the list, or, as the case may be, since he last made an application under this section; and

(b) that the change is such that leave should be granted.").

On Question, amendments agreed to.
Clause 85 [Welfare of children in boarding schools and colleges]:
Lord Hunt of Kings Heathmoved Amendment No. 123:
Page 51, line 37, leave out ("registration") and insert ("appropriate").
The noble Lord said: My Lords, this is a group of amendments which are purely minor corrections or consequential amendments to other legislation. I beg to move.
On Question, amendment agreed to.
Lord Hunt of Kings Heathmoved Amendment No. 124:
Page 52, line 14, leave out ("registration") and insert ("appropriate").
On Question, amendment agreed to.
Clause 86 [Suspension of duty under section 87(3) of the 1989 Act]:
Lord Hunt of Kings Heathmoved Amendments Nos. 125 to 134:
Page 53, line 22, leave out ("registration") and insert ("appropriate").
Page 53, line 25, leave out ("registration") and insert ("appropriate").
Page 53, line 27, leave out ("registration") and insert ("appropriate").
Page 53, line 30, leave out ("registration") and insert ("appropriate").
Page 53, line 42, leave out ("registration") and insert ("appropriate").
Page 53, line 44, leave out ("registration") and insert ("appropriate").
Page 53, line 48, leave out ("registration") and insert ("appropriate").
Page 54, line 2, leave out ("registration") and insert ("appropriate").
Page 54, line 4, leave out ("registration") and insert ("appropriate").
Page 54, line 21, leave out ("registration") and insert ("appropriate").
On Question, amendments agreed to.
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Clause 87 [Boarding schools: national minimum standards]:
Lord Hunt of Kings Heathmoved Amendment No. 135:
Page 54, line 33, leave out ("registration") and insert ("appropriate").
On Question, amendment agreed to.
Clause 88 [Annual fee for boarding school inspections]:
Lord Hunt of Kings Heathmoved Amendments Nos. 136 and 137:
Page 54, line 45, leave out ("registration") and insert ("appropriate").
Page 55, line 2, leave out ("registration") and insert ("appropriate").
On Question, amendments agreed to.
Clause 91 [Nurses Agencies]:
[Amendment No. 138 not moved.]
Lord Hunt of Kings Heathmoved Amendments Nos. 139 and 140:
After Clause 92, insert the following new clause—
SCHEMES FOR THE TRANSFER OF STAFF
(" .—(1) This section and the next apply to a scheme made under section 37, 67 or 69(2A) for transferring eligible employees.
(2) Subject to those provisions, such a scheme may apply to all, or any description of, employees or to any individual employee.
(3) Such a scheme may be made by the appropriate Minister, and a recommendation may be made to Her Majesty in Council to make an Order containing such a scheme, only if any prescribed requirements about consultation have been complied with in relation to each of the employees to be transferred under the scheme.").
After Clause 92, insert the following new clause—
EFFECT OF SCHEMES
(" .—(1) The contract of employment of an employee transferred under the scheme—

(a) is not terminated by the transfer; and

(b) has effect from the date of transfer as if originally made between the employee and the transferee.

(2) Where an employee is transferred under the scheme—

(a) all the rights, powers, duties and liabilities of the old employer under or in connection with the contract of employment are by virtue of this subsection transferred to the transferee on the date of transfer; and

(b) anything done before that date by or in relation to the old employer in respect of that contract or the employee is to be treated from that date as having been done by or in relation to the transferee.

This subsection does not prejudice the generality of subsection (1).
(3) Subsections (1) and (2) do not transfer an employee's contract of employment, or the rights, powers, duties and liabilities under or in connection with it, if he informs the old employer or the transferee that he objects to the transfer.

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(4) Where an employee objects as mentioned in subsection (3), his contract of employment with the old employer is terminated immediately before the date of transfer; but he is not to be treated, for any purpose, as having been dismissed by that employer.
(5) This section does not prejudice any right of an employee to terminate his contract of employment if a substantial change is made to his detriment in his working conditions.
But no such right arises by reason only that, by virtue of this section, the identity of his employer changes unless the employee shows that, in all the circumstances, the change is a significant change and is to his detriment.
(6) In this secticn—
"date of transfer" means the date of transfer determined under the scheme in relation to the employee;
"transferee" means the new employer to whom the employee is or would be transferred under the scheme;
and expressions wed in this section and in the provision under which the scheme is made have the same meaning as in that provision.").
On Question, amendments agreed to.
Clause 95 [Orders and regulations]:
Lord Hunt of Kings Heathmoved Amendments Nos. 141 and 142:
Page 57, line 5, leave out ("of the Secretary of State") and insert ("conferred on the Secretary of State, the Assembly").
Page 57, line 6, after ("Act") insert ("except an order under section 37 or 69(2A)").
On Question, amendments agreed to.
Earl Howemoved Amendment No. 143:
Page 57, line 7, at end insert—
("(1A) An orde' making any provision by virtue of section 96(2) which adds to, replaces or omits any part of the text of an Act shall not be made by the Secretary of State unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament.").
The noble Earl said: My Lords, I brought forward an amendment in Committee which required the order-making power in subsection (2) of what is now Clause 96 to be made by the affirmative procedure. The Minister was kind enough to accept my amendment in principle but offered to suggest an alternative form of wording. This he has done and my Amendments Nos. 143,144 and 145 are the result. I am most grateful to him for his help in this matter.
It may be for the convenience of the House if I explain that the amendment to Clause 95(1) requires orders under Clause 96(2), which are made by the Secretary of State in relation to England and which change an Act, to be subject to the affirmative procedure. It does not therefore bite on regulations made by the National Assembly for Wales. This is because the Government of Wales Act 1998 gives the National Assembly the power to decide its own procedure in respect of making subordinate legislation. I beg to move.
Lord Hunt of Kings Heath: My Lords, I am most grateful to the noble Earl. I am very happy to accept the amendments.
On Question, amendment agreed to.
Earl Howemoved Amendments Nos. 144 and 145:
Page 57, line 8, leave out ("Any such statutory instrument") and insert ("Subject to subsection (1A), an instrument containing regulations or an order").
Page 57, line 9, leave out from ("98") to ("shall") in line 10.
On Question, amendments agreed to.
Lord Hunt of Kings Heathmoved Amendments Nos. 146 and 147:
Page 57, line 13, leave out from ("the") to end of line and insert ("Assembly to make regulations or an order under this Act: and subsections (4) and (5) apply to any power of Her Majesty to make an Order in Council under section 67").
Page 57, line 28, leave out ("Minister") and insert ("person exercising the power").
On Question, amendments agreed to.
Clause 96 [Supplementary and consequential provision etc.]:
Lord Hunt of Kings Heathmoved Amendment No. 148:
Page 57, line 35, leave out (", instrument or document") and insert ("or instrument").
The noble Lord said: My Lords, the noble Earl, Lord Howe, and the noble Lord, Lord Jenkin, asked in Committee why the term "document" was included in Clause 96(2). This clause provides the power to make any transitional or consequential amendments to other legislation to assist with the implementation of this Bill. Having reflected on the matter, I cannot envisage a situation where we would want the Secretary of State to amend any "documents" by order and Amendment No. 148 simply removes the term "document" from that clause. I beg to move.
Lord Jenkin of Roding: My Lords, I rise merely to say, "Thank you very much".
On Question, amendment agreed to.
Clause 97 [General interpretation etc.]:
Lord Hunt of Kings Heathmoved Amendments Nos. 149 to 156:
Page 58, line 6, leave out from (""harm"") to end of line and insert—

("(a) in relation to an adult who is not mentally impaired, means ill-treatment or the impairment of health;

(b) in relation to an adult who is mentally impaired, or a child, means ill-treatment or the impairment of health or development;").

Page 58, line 47, at end insert—
("( ) an adult is mentally impaired if he is in a state of arrested or incomplete development of mind (including a significant impairment of intelligence and social functioning).").
Page 59, line 3, at end insert—
("( ) References in this Act to a child's being looked after by a local authority shall be construed in accordance with section 22 of the 1989 Act.").
Page 59, line 5, at end insert—
("(4A) Section 84(1) of the Government of Wales Act 1998 (payment of Assembly receipts into the Consolidated Fund) does not apply to any sums received by the Assembly by virtue of any provision of this Act.").

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Page 59, line 8, at end insert—
("(5A) Subsection (5) does not affect the power to make further Orders varying or omitting that reference.").
Page 59, leave out line 20.
Page 59, line 26, at end insert—
("Independent clinic and independent Section 2") medical agency
Divide Clause 97 into two Clauses, the first (Wales) to consist of subsections (4A), (5) and (5A) and the second (General interpretation etc.) to consist of subsections (1) to (4) and (6).
On Question, amendments agreed to.
Clause 98 [Commencement]:
Lord Hunt of Kings Heathmoved Amendment No. 157:
Page 59, line 30, after ("except") insert ("section 67(2) to (2C) and").
On Question, amendment agreed to.
Clause 99 [Short title and extent]:
Lord Hunt of Kings Heathmoved Amendment No. 158:
Page 59, line 36, leave out ("extends") and insert ("and, so far as relating to subsections (2) to (2C) of that section, sections (Schemes for the transfer of staff), (Effect of schemes) and 95 extend").
On Question, amendment agreed to.
Schedule 1 [The Commission and the Council]:
Lord Hunt of Kings Heathmoved Amendment No. 159:
Page 60, line 6, at end insert—
("(2) In this Schedule, in relation to the Welsh Council—

(a) references to the Secretary of State or to Parliament are to be read as references to the Assembly;

(b) references to the Comptroller and Auditor General are to be read as references to the Auditor General for Wales.").

On Question, amendment agreed to.
Lord Hunt of Kings Heathmoved Amendment No. 160:
Page 60, line 16, at end insert—
("( ) co-operating with other public authorities in the United Kingdom;").
The noble Lord said: My Lords, it is clearly essential that the councils should have the power to relate to other bodies to be able to give the public the full measure of protection we intend for them. Amendment No. 160 will provide the councils with this flexibility.
If the councils are to undertake their functions properly and to protect the public, the English and Welsh councils will clearly need to co-operate with each other. Further, they will need to co-operate with equivalent bodies that may be established in Scotland and in Northern Ireland. The kinds of areas in which we see the UK councils co-operating are in exchanging information about people who are refused registration, removed from a register, or who have some kind of qualified registration.
788
This is a very useful schedule. It sets the pattern for the way in which we would like there to be co-operative arrangements across the UK in the future. I beg to move.
On Question, amendment agreed to.
Lord Clement-Jonesmoved Amendment No. 161:
Page 60, line 24, at end insert ("and two of the members of each such authority shall be current users of services regulated under this Act").
The noble Lord said: My Lords, I know that the Minister, even at this late hour, has a horror of lists. We have had enough debates on previous Bills to know that.
The amendment seeks to add two service users to the commission itself. I do not believe that that is unduly extending the provisions of Schedule 1. It is extremely important that service users should be on the commission in order to inform its work.
In putting forward the amendment I take inspiration from a document which the Scottish Executive put out in December 1999 called Regulating Care and the Social Services Workforce. I am sure that the Minister will also take inspiration from his counterparts in Scotland, even though the Government Chief Whip may shake his head in these circumstances. Perhaps I may quote to the Minister a little of that document which I believe is extremely instructive. It states,
"The involvement of people who use care services is central to our plans, as is the confidence of the general public in the work of the Commission. We therefore propose that at least one-half of the Commission membership will comprise people using services, their carers or their representatives. In appointing these members, Ministers will take account of the diversity of people using care services in terms of age, gender and ethnicity".
This amendment is considerably more modest than that, but I commend it to the Minister. I believe that there are very strong reasons which have been put forward by the Scottish Executive as to why those care users should be on the commission. I beg to move.
Earl Howe: My Lords, I rise to speak to Amendments Nos. 162 to 167 inclusive standing in my name, along with Amendments Nos. 170 to 175 inclusive and Amendments Nos. 178 and 183.
As regards Amendments Nos. 162 and 163, in Committee we devoted only a relatively short time to the composition of both the national care standards commission and the general social care council. I felt that this was an issue that merited further debate because the membership of each of these bodies and the range of skills within that membership will be absolutely critical to their success and to their public credibility.
It would have been very easy to put down the type of amendment which resembles a shopping list, and I thought that, as far as possible, I would try to avoid that temptation. As I said before, my concern about this Bill is that it was geared up as a vehicle for the regulation of what might loosely be termed "social

789
care"—in other words, the whole spectrum of activities which currently fall under the aegis of local authority social services departments.
The inclusion of private healthcare within the same regulatory framework is, on the face of it, a gross anomaly. I said in Committee and I say again, that this element of the Bill almost has the look of a last minute bolt-on extra. I guess that that is not so far from the truth when we reflect that only a few months ago the Government were giving us to understand that private healthcare would be regulated by a body completely separate from the regulator of social care. That is why I believe that the focus of both the commission and the GSCC and the equivalent bodies in Wales should be balanced and that that balance should be reflected in the professional expertise present in the membership.
In Committee the Minister said that he was not drawn to the idea of making board members representative of individual interest groups. I thought that that was rat her an underhand way, if I may say so, of dismissing what I believe to be the legitimate concerns of a number of us. I am not talking about interest groups, but about professionalism. It would be very helpful if the Minister could give us some idea of the expected composition of these bodies. In particular, I shall be grateful if he will say something about their clinical and medical focus. It seems to me that unless we are very careful, the focus on social care will be next to total. I believe that that would be wrong.
Amendment No. 178 in my name, which is very similar to Government Amendment No. 177, proposes the appointment of a director of independent healthcare as someone senior on the staff of the commission with specific responsibility for regulating the private health sector. I am further proposing that this individual, along with the chief officer—and because the post is so important, the children's rights director—should be members of the commission—in other words, that they should be appointed to the board.
If we are really going to have a single regulator for social care and private healthcare, then we cannot isolate the one from the other, not least because the experience of being in care is for many people a complex product of health and care services combined. The way in which those services are delivered determines how people feel about being in care. I hope that the Minister can provide some reassurance on those amendments.
I turn now briefly to the remainder of the amendments grouped in my name and to one of the very few issues debated in Committee which gave rise to considerable dismay on this side of the House as a result of the Minister's response. It is the issue of the regulation of healthcare in the independent sector and the structures to be established in the national care standards commission to exercise that regulatory function.
We have been told by the Government that they intend, within the commission, to see a separate division established to handle the regulation of private and voluntary healthcare. I believe that such a division
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may be workable. But if it is to do its job in a way that commands public confidence, it cannot be just another section or department within the commission; it must have a weight and standing that reflects the technical complexity and diversity of its remit.
I make no tendentious comparison with the regulation of social care, I merely say that the two could not be more distinct. Those charged with the regulation of acute private hospitals have to know their job and be seen to know it. Furthermore, the expertise of those in charge of the division should be brought to bear at board level within the commission as a whole. There is nothing wrong with a statutory framework for the committee that directly oversees that division. My amendment proposes a structure for such a committee to be laid down in regulation with its functions and procedures to be similarly defined.
One particular feature of the committee which I need to mention is the inclusion of a member of the Commission for Health Improvement. That is a small, but I hope significant, step toward achieving that which many of us on this side of the House want to see, which is consistency of clinical standards throughout the public and private healthcare sectors.
When in Committee I had expected to hear from the Minister some substantive information about the separate division that the Government proposed, but unfortunately we did not, either as to its functions or its structure. I hope that the intervening two and a half months have enabled some further thought to be devoted to those issues. I beg to move.
11.30 p.m.
Lord Hunt of Kings Heath: My Lords, it was at a late hour when we rushed through these matters in Committee, and I am afraid it is rather late for us to be discussing these matters tonight. Like the noble Earl, Lord Howe, I think that it is important because the quality of leadership that we wish to see within the NCSC is absolutely crucial in terms of the regulatory system. I am sorry that I disappointed the noble Earl with my replies in Committee. I am certainly prepared to try again.
Perhaps I may first of all speak to the issue of the regulation of private healthcare. I know that some concern has been expressed about the relative importance and emphasis that the commission will place on its responsibility for regulating independent healthcare. I have no reservations about that. It will be an important task of the commission. And in our monitoring of the commission we will wish to ensure that the commission fully recognises that importance. I do recognise that an additional reassurance is required. Amendment No. 177 is placed before the House to require the commission to appoint a director of private and voluntary healthcare. That director will be a member of staff of the commission. His or her functions will be prescribed in regulations. Exactly what is prescribed is a matter for further consideration. But the fact that we are doing this ensures that the importance of the private and

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voluntary healthcare regulatory elements are fully considered and that a senior member of staff will have direct responsibility for that.
As the noble Earl, Lord Howe, has pointed out, the requirement to appoint a healthcare director is one of the points raised by Amendments Nos. 164 and 165. But he proposes that the healthcare director as well as the chief officer of the commission and the childrens' rights director and the chair of the independent healthcare committee ought to be a member of the commission's board. I do have reservations about that. The members of non-departmental public bodies have a different function to that of senior staff. Accordingly, most of those bodies will not have staff as members. Indeed new Cabinet Office guidance for NDPBs—a guide which was actually published yesterday—confirms this position, where it says that it is unusual for staff of the NDPB, excluding its chief executive to sit on its board, and there is a general presumption against it.
I should like to reassure the House that, although the persons named would not be entitled to vote, we would expect them to attend and to be able to reflect their work interests at meetings of the commission's membership. That would be essential in keeping members of the commission informed. We intend the majority of the commission's 15-strong membership to be lay members. If all the other directors and the chief officers were to be members of the board, there would be much less scope for appointing non-executive members with the experience and skill relevant to the functions of the commission.
I turn now to the noble Earl's other amendments, Amendments Nos. 167 and 170 to 175. These amendments propose the establishment of a healthcare committee of the commission. I dismayed the noble Earl on the previous occasion. I have to say to him that it seems to be unnecessarily bureaucratic to specify such a committee. We have indicated our resolve to ensure that the commission undertakes its responsibility for regulating healthcare effectively by requiring the appointment of a healthcare director. That director will head the division within the commission. The introduction of a committee would simply add a further layer of administration which is not warranted. I also believe that it might have the adverse effect of detracting the commission itself from a focus on private and voluntary healthcare. Because of the presence of a statutory committee it might tend to push concerns in relation to that sector on to that committee rather being focused on it as a corporate body in its own right.
I have sympathy with Amendment No. 161. We have made it clear that lay members will be in a majority on the commission and the council. Service users will be included among these lay members. The direct involvement of service users will be an integral part of the credibility and success of these new bodies. Ministers will be responsible for making all the appointments to these bodies. I can assure the House that we aim to appoint at least two service users as members of each. However, some practical difficulties
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will have to be faced up to. We cannot be sure that there will be suitable service users who are willing and able to serve as members. It is unlikely, for example, that a resident of a nursing home or of a residential care home for older people will be able to participate sufficiently as a member of one of these authorities, and of course children will not be eligible. For those reasons, I cannot accept the amendment, but I certainly agree with the spirit of it. I very much hope that we shall be able to find at least two service users to appoint to each body.
I turn now to Amendments Nos. 162 and 163. These amendments provide that persons appointed to the membership of the commission or council should have appropriate skills. It is plainly the case that in addition to a lay majority, the commission and the council will need members with both the relevant skills and experience of the type of work which these new bodies will undertake. However, as I said in Committee, I do not think it is appropriate for me at this stage to reserve individual places for particular professional disciplines on the membership of these new bodies. I shall not go over the ground again, but I reaffirm the Government's intent to ensure that the new authorities each have the right balance of skills and experience.
I end as I started. We are all committed to getting very high quality members of these organisations who will come from different backgrounds and have different skills but who, together, will make a very strong impact on the work of these organisations.
Lord Clement-Jones: My Lords, unfortunately, the Report stage procedure means that the noble Earl, Lord Howe, cannot reply to what the Minister has said. I found his reply something of a curate's egg. I welcome his statement about Amendment No. 161. I recognise that there may be practical difficulties and that perhaps it is not totally appropriate to include Amendment No. 161 in primary legislation. But I accept the noble Lord's assurances that there will be strong service user representation. I look forward to seeing that in due course.
As at Committee stage, even at this late hour the Minister disappoints me in relation to the committee. I do not propose to take up the time of the House by unpicking the arguments. However, I do not believe that to characterise the proposals as bureaucratic, or possibly as pushing on to that committee matters which should be spread more evenly across the commission, holds a great deal of water. It may well be that we shall return to this matter at a later stage, but in the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 162 to 167 not moved.]
Lord Hunt of Kings Heathmoved Amendments Nos. 168 and 169:
Page 61, line 6, after ("must") insert ("pay or").
Page 6I, line 12, after ("him") insert ("or make provision for the payment to him of").
On Question, amendments agreed to.
[Amendments Nos. 170 to 175 not moved.]
Lord Hunt of Kings Heathmoved Amendments Nos. 176 and 177:
Page 61, leave out lines 20 to 22 and insert—
("(3) Arty subsequent chief officer is to be appointed by the authority.").
Page 61, line 33, at end insert—
(".—(1) The Commission shall appoint a director of private and voluntary health care, who is to be a member of the staff of the Commission.
(2) The director shall have such functions as may be prescribed.").
On Question, amendments agreed to.
[Amendment Vo. 178 not moved.]
Lord Hunt of Kings Heathmoved Amendment No. 179:
Page 61, line 36, leave out from ("(3)") to ("on") in line 37 and insert ("staff appointed by an authority are to be appointed").
On Question, amendment agreed to.
The Chairman of Committees (Lord Boston of Faversham): My Lords, although Amendment No. 180 has already been spoken to, I must point out that, if it is agreed to, I cannot call Amendment No. 181.
Lord Hunt of Kings Heathmoved Amendment No. 180:
Page 61, leave out lines 39 to 43 and insert—
("(2A) Without prejudice to its powers apart from this paragraph, an authority may pay, or make provision for the payment of—

(a) pensions, allowances or gratuities;

(b) compensation for loss of employment or for reduction of remuneration,

to or in respect of staff appointed by them.
(3) The Secretary of State may give directions as to—

(a) the appointment of staff by an authority (including any condition; to be fulfilled for appointment);

(b) their term and conditions; and

(c) any other provision that may be made by the authority under sub-paragraph (2A).

(3A) Sub-paragraphs (2A) and (3)(c) apply to the first chief officer as they apply to other staff.").
The noble Lord said: My Lords, I beg to move Amendment No. 180.
Earl Howe: My Lords, with the leave of the House, perhaps I may speak briefly to Amendment No. 181, which raises some important issues. One of the most important tests of the credibility of the national care standards commission will be the conduct of inspections. The manner in which inspections are carried out and the consistency of approach will largely determine the way that the commission is viewed. Achievement of the right style and consistency does not depend simply on specialised knowledge. Inspection reqdres particular skills which can be acquired by experience and training. Those skills are
794
important if those who are inspected are to feel more capable, where that is the appropriate outcome, rat her than cast down after a visit by an official inspector.
The fear has been expressed to me that current inspection teams will simply be transplanted into the new commission and all will go on as before. We should be absolutely clear that that will not do. I do not wish to make generalisations or issue sweeping criticisms, but the fact is that some inspection teams contain people who are wholly unsuited to the job. It is the poor standard and inconsistency of inspections which has in no small degree given rise to this 13i11. I believe that there should be some kind of revalidation process to ensure that the same poor standards are not perpetuated and that inspectors have the opportunity to refresh and update their skills at appropriate intervals.
Anecdotally, there is evidence that inspectors of care homes overstep the bounds of reasonableness and professionalism in their current practice. I have heard of one local authority area where inspectors already require care homes to meet the standards set out in Fit for the Future? even though they have absolutely no status in law. They make it quite clear that immediate implementation of the standards is a condition of the local authority placing further contracts.
There is worse. There are numerous stories of owners and managers being brought to a state of near nervous breakdown by the spiteful behaviour of inspectors who have abandoned all pretence of objectivity in the wake of the Shipman case and Waterhouse report. Aggressiveness and a climate of fear are commonplace. One care home recently had 11 unannounced visits in the space of a month, some of them in the night. In another case, inspectors have taken advantage of minor breaches such as a failure to display a certificate to intimidate owners into doing anything they say. That is the background to the amendment I have tabled.
Perhaps one of the most sensitive environments in which an inspector may be called upon to operate is the private home. The inspection of a fostering or adoption agency may well involve an inspector visiting private domestic households in order to asses the ability of those running the services to promote the welfare of the children, and generally to manage the services properly. In that situation, the privacy of those who care for children as adoptive or foster parents must be respected. It might well be good procedure when an inspector visits a private household for him always to be accompanied by an officer of the agency or the local authority, as the case may be. The regulations issued for inspectors should at the very least list the range of qualities and experience that are required. I hope that the Minister will be able to provide me with some reassurance on all these issues which I regard as of the highest importance.
11.45 p.m.
Lord Hunt of Kings Heath: My Lords, I hope that with the leave of the House I may reply. The noble Earl raises some critical matters. He will know that I believe

795
that the new regulatory system will lead to a more professional and consistent approach to inspection than we have had. Equally, I fully accept that both the quality of leadership in terms of the members we appoint to the commission and the staff and the way they behave will be crucial, particularly in those first few months and years. They will set the pattern for the future. I am entirely sympathetic to the points he has raised.
If there are instances under the current system where inappropriate actions are being taken by inspectors, I urge noble Lords to draw them to my attention, because we can look into those matters. It is clear that even under the current regulatory system we have the right to expect that the inspection process should be conducted in a responsible, reasonable way.
Of course, there are instances where the current system is not working well. Some of that is perhaps down to poor quality staff involved in inspections. But, before I rush to condemn individuals, I must say that I believe it is more symptomatic of the problem that such inspection does not work well when operated by over 200 to 300 statutory agencies. With the new regulatory system, and the new commission, we shall have the ability to provide the consistency, training and infrastructure which will lead to a more professional and responsible approach. I also believe that there are many good people involved in the inspection regimes whom we shall be very glad to have transferred to the employment of the new commission and council.
I accept the points in relation to training. It is essential that people have proper training development and keep their skills up to date. There is a general power for the appropriate Minister to issue directions with regard to the way the commission exercises its functions under Clause 6(2) and for the councils under Clause 51(4). Training will be an ongoing operational issue, and the existing general provision in those clauses will be used to ensure that inspectors receive full and appropriate training.
I can assure the noble Earl that the Secretary of State will issue directions to the commission and councils to ensure that their staff receive proper training; and they will be monitored in order to ensure that that occurs. I hope that I have satisfied the noble Earl.
On Question, amendment agreed to.
[Amendment No. 181 not moved.]
Lord Hunt of Kings Heathmoved Amendment No. 182:
Page 62, leave out lines 5 and 6.
On Question, amendment agreed to.
[Amendment No. 183 not moved.]
Lord Hunt of Kings Heathmoved Amendments Nos. 184 to 187:
Page 62, line 21, leave out from ("may") to ("make").
Page 63, leave out line 40.
796
Page 64, line 3, at end insert—
(" In the Government of Wales Act 1998—
(a) in section 118(2) (meaning of "Welsh public records"), after "referred to in subsection (1)(e) are—" there shall be inserted—
"(aa) the Care Council for Wales;"
(b) in Schedule 4 (public bodies subject to reform by Assembly), after paragraph 3 there shall be inserted—
"3A. The Care Council for Wales." and
(c) in paragraph 14(2) of Schedule 9 (bodies subject to investigation by the Welsh Administration Ombudsman), after paragraph (a) there shall be inserted—
"(ab) the Care Council for Wales;"").
Page 64, line 4, leave out paragraph 26.
On Question, amendments agreed to.
Schedule 2 [Child Minding and Day Care for Young Children]:
Lord Hunt of Kings Heathmoved Amendment No. 188:
Page 64, line 38, at end insert—
("( ) a residential family centre").
On Question, amendment agreed to.
Schedule 3 [Minor and consequential amendments]:
Lord Hunt of Kings Heathmoved Amendments Nos. 189 to 205:
Page 68, line 36, leave out ("(registration by National Care Standards Commission)").
Page 68, line 44, at end insert—
("Disabled Persons (Services, consultation and Representation) Act 1986 (c.33)
In section 2(5)(d) of the Disabled Persons (Services, Consultation and Representation) Act 1986 (rights of authorised representatives of disabled persons), for "a residential care home within the meaning of Part 1 of the Registered Homes Act 1984" there shall be substituted "a care home within the meaning of the Care Standards Act 2000".").
Page 69, line 6, leave out ("(registration by National Care Standards Commission)").
Page 69, line 9, at end insert—
("( ) In section 19(I)(c) (review of provision of day care), for "section 71(1)(b)" there shall be substituted "Part XA".").
Page 69, line 36, leave out ("64(4)") and insert ("64").
Page 69, line 36, after ("homes),") insert ("in subsections (1) and (4),").
Page 70, line 8, at end insert—
("( ) in subsection (1)(i), after "71(1)(b)" there shall be added "or with respect to which a person is registered for providing day care under Part XA";").
Page 70, line 10, at end insert—
("( ) in subsection (5), after paragraph (h) there shall be inserted—
"(hh) person who is the occupier of any premises—

(i) in which any person required to be registered for child minding under Part XA acts as a child minder (within the meaning of that Part); or

(ii) with respect to which a person is required to be registered under that Part for providing day care;"").

797
Page 71, line 37, leave out ("In section 467(2) of the Education Act 1996,") and insert ("The Education Act 1996 shall be amended as follows.
( ) In section 467(2) (provision of information about registered and provisionally registered schools),").
Page 71, line 38, at end insert—
("( ) In section 469(4) (notice of complaint by Secretary of State), after "school is" there shall be inserted "unsuitable to work with children or is for any other reason".").
Page 71, line 39, leave out from ("471(2)(a)") to end of line 41 and insert ("(determination of complaint by Secretary of State), after "school is" there shall be inserted "unsuitable to work with children or is for arty other reason".").
Page 72, line 5, leave out ("I 15(6A)") and insert ("115").
Page 72, line 5, after ("certificates),") insert—
("( ) in subsection (5)(e), for "or" there shall be substituted "registration for child minding or providing day care under Part XA of that Act or registration";
( ) in subsection (6A)").
Page 72, line 20, after ("under") insert (", or by virtue of,").
Page 72, line 22, leave out ("or 75") and insert (", 75 or (Conditions for application under section 75)").
Page 72, line 25, after ("(3A)") insert ("The regulations may also include provision for enabling the Tribunal to make investigations for the purposes of a determination under section 75 or (Conditions for application under section 75) of the Care Standards Act 2000; and the provision that may be made by virtue of subsection (3)(j) and (k) above includes provision in relation to such investigations.
(3B)").
Page 72, line 26, at end insert—
("(3C) Before making in regulations under this section provision such as is mentioned in subsection (2)(c) or (d) above, the Secretary of State shall consult the National Assembly for Wales."").
On Question, amendments agreed to.
Schedule 4 [Transitional provisions and savings]:
Lord Hunt of Kings Heathmoved Amendments Nos. 206 to 209:
Page 73, line 4, leave out ("Secretary of State") and insert ("appropriate Minister").
Page 73, line 18, leave out ("to the Secretary of State").
Page 73, line 20, leave out ("Commission") and insert ("registration authority").
Page 73, line 22, leave out ("Secretary of State") and insert ("appropriate Minister").
On Question, amendments agreed to.
798
Schedule 5 [Repeals]:
Lord Hunt of Kings Heathmoved Amendments Nos. 210 to 215:
Page 73, line 32, at end insert—

("1958 c. 51.

The Public Records Act 1958.

In Schedule 1, in the Table at the end of paragraph 3, in Part II, the entry relating to the Care Council for Wales.")

Page 73, line 32, at end insert—

("1963 c. 33.

London Government Act 1963.

Section 40(4)(i).

1970 c. 42.

Local Authority Social Services Act 1970.

In Schedule 1, in the entry relating to the Mental Health Act 1959, the words "and the Registered Homes Act 1984 so far as its provisions relate to mental nursing homes", and the entry relating to the Registered Homes Act 1984.")

Page 74, line 23, column 3, leave out ("definition of") and insert ("definitions of "nursing home",").
Page 74, line 24, column 3, at end insert ("and "residential care home".").
Page 74, line 48, at end insert—

1992 c. 53.

Tribunals and Inquiries Act 1992.

In Schedule 1, the entry relating to the Registered Homes Tribunals constituted under Part III of the Registered Homes Act 1984.")

Page 75, leave out lines 28 to 42.

Powers of Criminal Courts (Sentencing) Bill [H.L.]
Reported from the Joint Committee with amendments and recommitted to a Committee of the whole House; Bill ordered to be printed as amended.
House adjourned at ten minutes before midnight.