Care Standards Bill [H.L.]

HL Deb 28 March 2000 vol 611 cc731-98

Consideration of amendments on Report resumed.

Clause 29 [Inspections by persons authorised by registration authority]:

Lord Hunt of Kings Heath

moved 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 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 Heath

moved 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—

1. (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
2. (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 Howe

moved 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 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 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.

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 Barker

moved 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.

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 Heath

moved Amendment No. 49: Leave out Clause 31. On Question, amendment agreed to.

Clause 37 [Transfers of staff]:

Lord Hunt of Kings Heath

moved 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.

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.

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 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 Heath

moved 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 Weatherill

moved 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.

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 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 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 David

moved 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 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 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 £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 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.

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 Heath

moved 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—

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

moved 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 Heath

moved 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.

Clause 52 [Interpretation]:

Lord Hunt of Kings Heath

moved 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.

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 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 Heath

moved 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);"). 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 Heath

moved Amendment No. 68: Page 23, line 24, leave out from ("of") to end of line 29 and insert—

1. ("(a) social workers; and
2. (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 Heath

moved 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 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 Heath

moved 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 Heath

moved 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 Heath

moved 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 Heath

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

1. (a) maintained by a Council; or
2. (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 Heath

moved 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 Heath

moved 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 Heath

moved Amendment No. 86: Page 28, line 42, leave out subsection (4) and insert— ("(4) Any functicns of the Secretary of State under this section—

1. (a) may be delegated by him to the English Council; or
2. (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—

1. (a) the terms and effect of an authorisation under subsection (4)(b); and
2. (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.

Clause 65 [Appeals to the Tribunal]:

Lord Hunt of Kings Heath

moved 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 Heath

moved 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—

1. (a) any supplementary, incidental or consequential provision,
2. (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—

1. (a) in relation to England or Wales, the Council;
2. (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 Bach

moved 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—

1. (a) none of his work is done in the part of the premises in which children are looked after; or
2. (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. 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.

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 Bach

moved 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 Bach

moved 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". 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 Bach

moved 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;"). 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—

1. (a) the taking of any step mentioned in section 79L(1): or
2. (b) an order under section 79K,

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

1. (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
2. (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 Bach

moved 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 Heath

moved 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—

1. (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;
2. (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—

1. (a) the Assembly; or
2. (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."). 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 Heath

moved 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 Howe

moved 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 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 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 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 Sudbury

moved 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 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 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.

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 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 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 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 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.

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 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) 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 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 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.

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 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.

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 Sudbury

moved 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 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.

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 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 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 Heath

moved 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 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 Heath

moved 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—

1. (a) he has been so included for a continuous period of at least five years; and
783
2. (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—

1. (a) he has been included (otherwise than provisionally) in the list for a continuous period of at least ten years; and
2. (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—

1. (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
2. (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 Heath

moved 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 Heath

moved 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 Heath

moved 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.

Clause 87 [Boarding schools: national minimum standards]:

Lord Hunt of Kings Heath

moved 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 Heath

moved 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 Heath

moved 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—

1. (a) is not terminated by the transfer; and
2. (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—

1. (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
2. (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. (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 Heath

moved 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 Howe

moved 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 Howe

moved 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 Heath

moved 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 Heath

moved 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 Heath

moved Amendments Nos. 149 to 156: Page 58, line 6, leave out from (""harm"") to end of line and insert—

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

moved 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 Heath

moved 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 Heath

moved Amendment No. 159: Page 60, line 6, at end insert— ("(2) In this Schedule, in relation to the Welsh Council—

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

moved 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.

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-Jones

moved 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 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 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 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 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 Heath

moved 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 Heath

moved 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 Heath

moved 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 Heath

moved 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—

1. (a) pensions, allowances or gratuities;
2. (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—

1. (a) the appointment of staff by an authority (including any condition; to be fulfilled for appointment);
2. (b) their term and conditions; and
3. (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 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 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 Heath

moved 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 Heath

moved Amendments Nos. 184 to 187: Page 62, line 21, leave out from ("may") to ("make"). Page 63, leave out line 40. 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 Heath

moved 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 Heath

moved 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—

1. (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
2. (ii) with respect to which a person is required to be registered under that Part for providing day care;"").

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 Heath

moved 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.

Schedule 5 [Repeals]:

Lord Hunt of Kings Heath

moved 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.