National Health Service Reform and Health Care Professions Bill

HL Deb 11 April 2002 vol 633 cc609-72

8.33 p.m.

House again in Committee.

Clause 18 [Supplementary]:

[Amendments Nos. 116 to 118 not moved.

Earl Howemoved Amendment No. 119: Page 23, line 27, after "Authority," insert "an overview and scrutiny committee or joint committee within the meaning of sections 7 (functions of overview and scrutiny committees), 8 (joint overview and scrutiny committees etc) and 10 (application to the City of London) of the Health and Social Care Act 2001 (c. 15),

The noble Earl said: In moving Amendment No. 119, I shall also speak to Amendments Nos. 120, 122 and 149.

As the Committee will know, I have criticised the Government's proposals for patient and public involvement on several grounds. Perhaps my most fundamental objection to the new arrangements that are to replace CHCs is their fragmented structure. If we are to minimise the effect of that fragmentation, we must ensure that the bodies tasked with different aspects of the watchdog remit perform the functions that they are supposed to perform and communicate properly with each other As far as possible, in other words, the system should be joined-up.

The scrutiny function currently undertaken by CHCs is being transferred to the overview and scrutiny committees of the local authorities. The inspection function is to be transferred to patients forums. In another place, the Government helpfully accepted an amendment that gave patients forums the right to refer matters of concern to the overview and scrutiny committees. However, it is noticeable that, under the current wording of the Bill, the OSCs have no specific duty to act upon such referrals. There should be no constraints on OSCs in reaching their conclusions on matters referred to them, but they should have a duty to consider them.

Similarly, when an overview and scrutiny committee receives a report or a recommendation from a patients forum—perhaps following an inspection—there should be no loophole in the law that would give it an excuse to sit back and do nothing about it. It should be required to comment on the report or recommendation. My amendment would confer that duty on OSCs.

The flow of information should be in two directions. In setting about its work, an overview and scrutiny committee may have access to all kinds of relevant information at local authority level that could usefully inform the work of the patients forum. For example, there may be relevant information about the costs c r other aspects of private sector contracts or partnership arrangements. My amendment would ensure that the regulations allow for the provision of information by an overview and scrutiny committee to a patients forum. I beg to move.

Lord Clement-Jones

I shall speak to Amendment No. 149, which deals with the question of the duty of overview and scrutiny committees to carry out the scrutiny function. I shall be brief, for we have discussed this already.

We believe that it is a flaw in the original Health and Social Care Act 2001 that there is no duty to carry out scrutiny functions. The Act is simply permissive. Paragraph 1 of Schedule 7 to the National Health Service Act 1977 puts each community health council under a duty to, represent the interests in the health service of the public in its district; and (b) to perform such other functions as may be conferred on it". The CHC regulations of 1996 expanded on that duty. Regulation 17 placed a duty on each CHC to, keep under review the operation of the health service in its district, to make recommendations for the improvement of that service and to advise any health authority upon such matters relating to the operation of the health service within its district as the Council thinks fit". It would seem that, in some senses, we are going backwards, if there is to be no duty. Everyone accepts that the power of scrutiny is important. Without a duty, some local authorities could choose not to exercise the power, leaving the local community without CHCs—or, if the Minister had his way, patient councils—or OSCs scrutinising the National Health Service. That would be a retrograde step.

Lord Filkin

The introduction of overview and scrutiny by local government, under the Local Government Act 2000, gives people a genuine say in their local services. In the case of health, that will, for the first time, make the NHS answerable for its performance to locally elected councillors and to the local community, through the local authority. That will go a considerable way towards ending the democratic deficit that has long been recognised as an issue for the NHS. It is relevant to the discussion of the amendments to say how warmly that has been welcomed by local authorities and by local government collectively, through the LGA. It has long been argued for, and the best local authorities have tried to perform elements of it, without a particularly affirmed role. The Government are confident that there will be a positive response, albeit that such things take time to bed in.

A key principle for the Government is the right of the public to expect its concerns over major changes to health services to be expressed through a form of scrutiny process. Local NHS bodies must consult their local authority overview and scrutiny committees on substantial developments of the health service in the council area, as well as on any proposals to make substantial variations to the provision of such services. This in itself is a very major change in terms of recognising the duty to consult and involve. Overview and scrutiny provides a way of ensuring that needs have been properly identified and that services delivered by local partners do promote the well-being of the local communities they are designed to serve.

However, we do not think it necessary to place a duty on local government to scrutinise the NHS with quite the formality that has been suggested. We think it appropriate for local government, in the context of its responsibilities for the well-being of local populations, to take into account the health services of those people, which of course is why the power was given under the Local Government Act 2000 to promote the overall well-being of local communities. Again, that was very strongly welcomed by local authorities and government when it was introduced.

Locally elected representatives should make their own decisions about what scrutiny activity takes place. One cannot believe in local authorities as the representatives of their communities in the diverse circumstances in which they find themselves and then not give them the freedom to make judgments about what areas of health service performance strike them as being of priority for scrutiny at any particular point in time. For that reason, we have provided the power for them to scrutinise the NHS as they deem appropriate.

We have placed duties on the NHS to provide information and to consult with OSCs. Thus the Government have affirmed the importance of the role of the OSCs by those very measures. We shall also set out in regulations the arrangements by which NHS staff will be required to attend OSC meetings. To add further to these arrangements by compelling OSCs to undertake their scrutiny functions would, we believe, be going too far. These decisions are best made by councillors elected by local people.

Concerns have been expressed that some local authorities might not be very serious about these functions. On the one hand, one recognises that all local authorities will go through a period of development and learning, which is why the Government, the LGA and others are serious to see that support and development is given in the shaping of these new roles. I find it inconceivable that the social services authorities, which are the relevant authorities for overview and scrutiny over health matters, would not have very strong areas of concern and interest. Therefore they will treat their overview and scrutiny functions very seriously indeed. One would expect these functions to be high up the list of issues, commanding considerable interest in a local authority. In the remote circumstances that one authority might be slower off the mark than others, I should have thought that it would be castigated by its public for such a gross failure to act as its voice and advocate on health matters.

Amendment No. 119 seeks to give patients forums powers to require information from local authority overview and scrutiny committees. We think this degree of power is too wide and inappropriate. We certainly wish to encourage good communication links between forums and OSCs; indeed, we have already amended the Bill to give forums the power of referral to OSCs.

I would suggest that Amendment No. 120 flies in the face of giving the power to scrutinise the NHS to an independent body. We have always said that local government must take a view on what action to take in respect of its responsibilities for the well-being of local people. It is in this context that decisions and actions taken by OSCs should be governed. Requiring them to respond to and act upon referrals from patients forums is out of kilter with our whole approach, in that OSCs are not the servants of them. If a local authority OSC believes that a response or action is appropriate, then it is free to do so. Compelling an independent body from the centre is not appropriate.

However, we hope and expect overview and scrutiny committees and patients forums increasingly to recognise their overlapping areas of interest. They will have differing functions, but clearly they could provide strong mutual support for one another. The thrust of government advice and implementation will be very strongly to promote that kind of joint co-operation, which the noble Earl, Lord Howe, has quite rightly advocated, underpinning the purpose of his proposed amendment.

In the light of the very strong support expressed by local government for powers of overview and scrutiny over the health service, I do not think that there is a need to go so far as to place a specific duty here, because we have considerable confidence that, over a period of years, this will develop into a powerful and important new way of contributing to improvements in the health service and reflecting the interests of local people in health service provision in their area.

8.45 p.m.

Lord Clement-Jones

I am not an expert in local government matters. Before he sits down, can the Minister explain what consideration has been given to providing resources for local authorities to enable them to carry out their overview and scrutiny role?

Lord Filkin

It will come as no surprise to the noble Lord that such matters form part of the Budget considerations and will form part of the considerations for the Comprehensive Spending Review itself. Whenever it imposes a new duty on local government, the DTLR is under an obligation to make an assessment of the resource impact of that duty. Therefore, from April this year it will form a part of the SSA settlement made to local authorities. In the future, these will be matters considered by the Comprehensive Spending Review.

Baroness Carnegy of Lour

If the Government do not know whether a local authority is going to do this and, if it does, to what extent it will undertake the new role, how will they know what resources to make available?

Lord Filkin

There are traditional negotiations and discussions between the finance specialists at the Local Government Association and the finance specialists in the DTLR. Without going into excessive detail, between them they attempt to estimate what will be the cost burden of such new functions.

We should recognise that, in these matters, local authorities are free to set their own priorities as regards where they putt the burden of their expenditure. Thus there are traditional expenditure negotiation routes between the LGA and the DTLR to make such assessments.

Lord Clement-Jones

Perhaps I may ask a further question. Is there any intention to gather information about the resources devoted by local authorities to the functions of overview and scrutiny? The argument that is current, with which I agree, is that the full vigour may not be applied by every local authority to the role of overview and scrutiny, which will be reflected in the resources the authority devotes to it. However, I think it is important for information about the resources devoted to the role to be made available in future financial years.

Lord Filkin

Speaking as one who knows and loves local government very well, I can guarantee that authorities will say that they do not have sufficient resources. It would be a strange world if they did not do so. More seriously, however, I am pretty confident that the DTLR has under way two research studies on the operation of overview and scrutiny committees, given that this is such a substantial and important new development for local government. I can do no more than say that we shall draw to their attention the interest there might be in monitoring the resource impact as a part of those studies, if the terms of reference of those studies make that possible.

Earl Howe

I am most grateful to the Minister for his full reply. I was pleased to hear him confirm that the Government are fully in favour of promoting joint cooperation between patients forums and overview and scrutiny committees. I agree that the system being set up in relation to OSCs has the potential to perform a useful function, but the question I ask is why, for the past 20-odd years, it has been appropriate to give local communities a guarantee that their health services would be scrutinised, but now that is no longer appropriate. I do not know what has made that unnecessary.

As I said earlier, I want to see the new system working well, because as the Bill is drafted, at least on the face of it the proposals will give us a less robust system than we have at the moment. There is no guarantee that overview and scrutiny committees will scrutinise health issues and no redress if they do not do so. One can imagine all kinds of things interfering with the best intentions. Priorities always have to be set and agreed at local government level and party politics play a part. One can envisage the system perhaps not working as smoothly as the Minister has made out. On the basis of what he has said, we can only hope that the intentions will be borne out.

Lord Filkin

It may help if I give some illustrations of the range of areas of interest between local government and the health of communities which make it almost inconceivable that overview and scrutiny would not be treated seriously, albeit it in different ways in different areas and treating certain issues more frequently.

Overview and scrutiny committees will not duplicate what the patients forums will do. It would be surprising if they spent large amounts of time looking at whether emergency care functions in A&E were working well in a local hospital. Clearly the patient forum is much better placed to do that. On the other hand, one would expect that they would look at issues affecting public health—for instance, smoking cessation campaigns, promotion of positive health, the impact of transport facilities on health and the impact of a range of other issues such as housing conditions, housing and insulation on health. They would look across the piece at how, for example, disabled people may be being treated in the community and how that interconnected with health.

They will help the health service not simply by looking again at a particular function of the NHS—which the patients forums may do—but by looking thematically or from the point of view of a particular interest, a particular group of people or a particular service with which they themselves are concerned, by seeing the interconnection with the health service and by recognising the need to strengthen those interconnections more effectively for the public.

There are myriad connections and interests. The committees will not carry out these functions in the same way but it is most unlikely that they will not see them as important functions.

Earl Howe

I thank the Minister for that additional clarification. It was very helpful in fleshing out our understanding of what the overview and scrutiny committees will do. I shall read carefully what the Minister said between now and Report stage. For the time being, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 120 to 126 not moved.]

[Amendment No. 127 had been withdrawn from the Marshalled List.]

Clause 18 agreed to.

Clause 19 [The Commission for Patient and Public Involvement in Health]:

Lord Clement-Jonesmoved Amendment No. 128: Page 24, line 21, after "Commission" insert "shall represent the interests in the health service of patients and the wider community and

The noble Lord said: Amendment No. 128 and the associated amendments seek to ensure that the new proposed Commission for Patient and Public Involvement in Health is not limited in its functions.

There are enough experts and noble Lords with a local government background in the Committee today to know that statutory bodies are able to carry out only activities and functions conferred on them by statute, otherwise they would be acting ultra vires. They are powerless to extend their own remit. Any act they perform which is outside the limits placed on them in legislation will be subject to legal challenge.

At present, community health councils and the Association of Community Health Councils are able to carry out a wide variety of activities because the enabling statute provides that each CHC is to, represent the interests in the health service of the public in its district and … to perform such other functions as may be conferred on it by virtue of paragraph 2 below".

The statute also provides that ACHCEW, the Association of Community Health Councils, will, advise Councils with respect to the performance of their functions, and to assist councils in the performance of their functions; and … to perform such other functions as may be prescribed".

That is contained in the 1977 Act.

Through being charged with advising and assisting CHCs, ACHCEW is thus able to benefit from the wide remit afforded to CHCs. If Clause 19 remains unamended, the commission, for example, will be unable to carry out many of ACHCEW's current functions. These include research and policy work; conducting casualty watch type exercises; running or engaging in national campaigns or making donations to those campaigns; campaigning about national changes of policy affecting the health service; commenting on guidance issued by bodies such as the GMC beyond those concerns which may fall within the remit of Clause 19(6); and taking legal proceedings. Activities such as these would be ultra vires.

To some extent, this is the converse of the previous amendment relating to the powers of patients forums at local level. It applies in equal measure in terms of the national scene and the commission's powers at national level. If the Government are genuine in their desire to empower patients and the public, they need to expand the commission's remit.

It would be useful at this stage—there will not be many opportunities to do so—if the Minister could indicate the kind of funding that may be available for the commission in carrying out its powers. Whatever view the Minister has about the width of those powers, we believe that there is a danger that the commission will be under-resourced and not have an adequate staffing level. As the efficacy of patients forums will rely heavily on the staffing provided by the commission, that would be extremely dangerous. It would mean that the new system will not work in anything like the way that the Government hope that it will.

Amendments Nos. 133 and 135 are ancillary amendments which follow Amendment No. 128. I beg to move.

Lord Harris of Haringey

The creation of the Commission for Patient and Public Involvement in Health is a critical change in the Government's proposals and is of extreme importance. I have some sympathy with the amendment moved by the noble Lord, Lord Clement-Jones, but I am slightly confused about the way in which it is worded. It seems to me that subsection (2)(g) almost achieves what he seeks to put into the preamble about the commission's functions. The only difference is that subsection 2(g) refers to the views of members of the public whereas his amendment refers to the interests of the public.

That is an important and critical distinction. I should like to see a situation whereby the commission was able to present its own judgment on the interests of the public and, at the same time, have an obligation to present the views of the public. I am not sure whether the noble Lord has worded his amendment deliberately or whether it is an accident of drafting.

9 p.m.

Lord Hunt of Kings Heath

This brings us to the very important role of the Commission for Patient and Public Involvement in Health. As my noble friend Lord Harris suggested, it is an important part of the whole package of measures designed to improve public and patient involvement. They build on the Health and Social Care Act 2001 and I pay tribute to the noble Lord for his original work in relation to a national body.

It was apparent during the passage of the original Bill that a national body with a remit for overseeing the delivery of the Government's proposals was a missing link from the proposals. The commission will have an important role to play in future as an independent body that operates at arm's length from the department. It will have roles nationally and locally across the country.

In earlier debates my noble friend Lord Harris urged a national body to play a role in encouraging a high standard of performance in relation to local patient involvement bodies. Crucially, the commission will set standards for patients forums and providers of independent complaints advocacy. It will also report to the Government on the implementation of the new structures. The commission will have the explicit role of working in communities to ensure that local people have a say in decisions that affect their health and the health services. It will do that by promoting local consultation exercises—advertising them where they might not normally be advertised; helping people to get involved; giving people the necessary skills and confidence to contribute by organising training courses; and suggesting different ways for them to contribute.

The commission will also have a key role in developing and promoting innovative ways of getting people involved—especially segments of the population who traditionally might not become involved, such as people from ethnic minority groups, older people, people with disabilities and homeless people.

Amendment No. 128 would add the new function to the commission of representing the interests of patients and the wider community. We discussed that particular form of wording in relation to patients forums. The arguments that I used then apply equally to the commission. I do not believe that it is appropriate for an appointed body to be given such an all-embracing power, which should lie with Parliament. The noble Lord suggests too wide a function for the commission to undertake. It is being established specifically to empower patients and the public, not to speak on behalf of the entire population. The commission's work of empowering the voices of local people will allow real changes to be made.

Amendment No. 133 would add a function to provide staff, facilities and services to patients forums. The Bill already makes it clear in Clause 19(2)(d) that the commission will support the work of patients forums. By that we specifically mean that the commission's staff will provide information, briefing, administrative support and help to plan activities. More important is the commission's role in developing the capacity of forums to play their role. I re-emphasise the running of training places; developing the skills and competence of forum members; and devising effective work programmes.

The noble Lord asked about resources. He is premature in terms of receiving a direct response but clearly there would be little point in establishing such a commission if it were not effectively resourced to meet the serious responsibilities being laid upon it.

Amendment No. 135 provides for the commission to exercise its functions by reference to overview and scrutiny committee areas instead of primary care trust areas. There is an argument both ways but the Government's preference for PCTs in the Bill makes clear our commitment to the commission working at local community level. The PCT level is the right one, although of course the commission will feed into OSCs, as the reporting arrangements in the Bill make explicit.

The Bill's reference to primary care trusts spells out the intention that the commission will get into local communities and promote patient and public involvement at the level where front-line services are decided and funded. I well understand why the noble Lord wants to make a link at OSC level hut, given the particular responsibilities of PCTs and that they are the principal public health authority, there is a persuasive argument for the commission paying particular attention to the PCT level.

We understand that there are other important connections and that informing the scrutiny process critical. We have taken account of that in the commission's reporting arrangements. The connection to the performance management of local NHS organisations is also critical, so we have ensured that the commission reports to the strategic health authorities.

I do not apologise for saying that shifting the balance to PCTs and the areas that they cover is important in relation to public and patient care involvement—as to many of the other decentralisation measures, which is a theme running through the Bill.

Lord Clement-Jones

The Minister seemed to miss out most of the red meat of public debate. Is he saying that it will not be possible for the commission to engage in a national campaign or one about policy changes affecting the health service? Will it not be able to comment on guidance issued by professional bodies that are not acute trusts or PCTs? Is the Minister saying that the campaigning element will be completely absent?

Lord Hunt of Kings Heath

The commission will have a crucial role in bringing to the Government's attention issues relating to the way in which the health service is involving the public in local decision making. Clause 19(2)(b) gives a clear function in advising the Secretary of State in relation to advocacy services. Subsection (2)(c) gives the commission a clear function in representing to the Secretary of State and to other prescribed bodies arrangements in relation to patients forums. It allows the commission to provide assistance to patients forums, to advise and assist providers of independent advocacy services, and to set quality standards. Those seem to me to be wide-ranging functions which will enable the whole public involvement in the NHS to be much more effective than it is at present.

Lord Clement-Jones

I am sure that the Minister is quite genuine in his response. However, the worry in relation to Clause 19 is that we are merely creating a tame poodle—that the commission will not have teeth. I know that this Government are not particularly fond of public debate, but those who want to see the commission prosper want it to be able to engage in public debate, to represent the interests of local patients and the public and to be able to debate and campaign in a robust way. That is a perfectly legitimate thing to do in a democracy in regard to what is probably the most important area of public service that we have.

There is the huge suspicion—which I share—that Clause 19 represents an emasculation of what we already have. I recognise the Minister's sincerity. I am sure that lawyers will pore over his words as they will be used to interpret Clause 19 in due course, and to that extent they may find his words helpful. However, there is the suspicion that the provision does not go nearly far enough. That is a matter of great regret.

I hope that the Minister will consider the matter further. I share the view that at national level the commission is an important body. Where we clearly differ—as in the debate on patients' councils—is on what role the commission should play at local level and whether people should rely on what is effectively a government body to do the campaigning for them at local level.

Lord Hunt of Kings Heath

In my reference to Clause 19 I missed out subsection (2)(g), which states that the commission has the function of, representing to persons and bodies which exercise functions in relation to any area … the views of members of the public in that area about matters affecting their health". That goes very wide.

Lord Clement-Jones

Those are slightly weasel words. I did not respond to the noble Lord, Lord Harris, for which I apologise. The positioning of the amendment at the beginning of the clause was designed to elicit a response from the Minister at large, rather than in regard to the individual subsections.

I still do not believe that that gives a great deal of comfort. It is highly targeted forms of representation—not, for instance, a media campaign—which would be legitimised by paragraph (g). I believe that the Minister would have to accept that in terms of the interpretation of the clause.

Everything is carefully parcelled up. I am sure that these clauses have been drafted for a purpose. The thinking has been: "Yes, but we must not give them too much". That is the key worry. I do not intend to press the amendment at this stage. However, we may wish to return to it. I believe, in common with many others, that the powers of the commission will be crucial. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 129 to 131 not moved.]

[Amendment No. 132 had been withdrawn from the Marshalled List.]

[Amendments Nos. 133 to 136 not moved.]

Clause 19 agreed to.

Schedule 6 [The Commission for Patient and Public Involvement in Health]:

Lord Clement-Jonesmoved Amendment No. 137: Page 85, line 2, leave out from beginning to second "the

The noble Lord said: Perhaps I may pick up a further strand relating to the commission. I believe that the noble Earl, Lord Howe, will speak to the remainder of the amendments in this group. I shall not elaborate on the issue at great length.

The point has arisen that the commission should be free of the trammels of the Secretary of State. This is a running theme throughout the Bill. Most of us on the Opposition Benches are agreed that the Bill—despite having the intention of decentralisation—in actuality takes considerable extra power for the Secretary of State. This is just another example. The Commission for Patient and Public Involvement in Health will be subject to directions given by the Secretary of State. Effectively, therefore, it will be the creature of the Secretary of State.

If the Secretary of State and his ministerial colleagues really wanted to give the assurance that this body would be a robust public representative that could challenge and scrutinise and do all the things that it needs to do, they would agree to the removal of these words. It should be wholly independent of the Secretary of State and of any possible political interference and, if it were, it would enjoy much greater all-party support and, no doubt, that of patients' organisations as well. I beg to move.

9.15 p.m.

Earl Howe

I rise to speak to Amendments Nos. 138, 139 and 141. I am sorry to say that, due to an error, Amendment No. 140 was withdrawn without reference to me, but I trust that I may speak to it briefly.

The Commission for Patient and Public Involvement in Health, which is to be established under Clause 19, will, as the Minister said, have a major role to play in ensuring that the new arrangements that will replace CHCs really work. At national level, it will have the task of issuing guidance and providing training, as well as advising the Secretary of State. At local level, its function will be to support the work of patients forums and to provide wider community involvement in local health decisions. Just as patients forums need to be independent of the trusts to which they relate, so too does the commission need to be independent. What is more, it needs to be seen to be so.

It is, therefore, anomalous that Schedule 6 to the Bill should provide for the chairman of the commission to be appointed by the Secretary of State. There should be a bottom-up, rather than a top-down, approach to appointments in the commission. The first chairman of the commission is, perhaps, a separate case, but even he or she should be appointed by the NHS Appointments Commission rather than by the Secretary of State. Subsequent chairmen should, in my view, be appointed by members of the commission. That formula would ensure that the commission was independent, and it would remove any possibility of political interference. Unless the commission is independent in that sense, it cannot gain the full confidence of patients' organisations. We would do well to bear in mind that the Secretary of State does not even appoint the chairmen of NHS trusts nowadays. So one has to ask why he should have the power of appointment over the chairmanship of a body such as this, which has a much greater need than any NHS trust to prove an absence of political bias.

Then we come to the membership itself. If the majority of members of the commission are nominated and elected by patients forums, that will ensure its democratic accountability to the main patients' representation bodies. That is what Amendment No. 139 proposes. Similarly, I ask why it should be the Secretary of State who appoints the first chief executive. The chairman and members of the commission should do that themselves; they should also determine the terms and conditions of his or her employment. The chief executive must have credibility as an independently appointed champion of patient representation. That will hardly be the case if people regard him or her as a political appointee.

Lord Hunt of Kings Heath

These amendments concern the level of control and accountability that the Secretary of State has with regard to the commission in two areas: appointments and funding. Schedule 6 is based on standard guidance from the Cabinet Office on the setting up of executive non-departmental public bodies, and replicates what has already been applied in the case of the Commission for Health Improvement.

The commission will be an independent organisation, but, because it is to be publicly funded, there has to be some form of formal accountability to Parliament, in addition to its making annual reports to the Secretary of State. The clauses and the schedule in the Bill before your Lordships tonight are based on that principle. Because the functions of the commission will be set out in statute, the Secretary of State has a responsibility to Parliament and to the public to ensure that it is able to carry them out. One of the ways of making that possible is through the key appointments to the commission.

The chair and the chief executive will need to be able to account for the commission's actions to the Secretary of State, who, in turn, is accountable to Parliament. This process provides Parliament with a tool for holding Ministers to account over the performance of non-departmental public bodies. I do not believe that the commission is different from any of the other important non-departmental bodies that have been established in relation to the National Health Service.

Amendment No. 138 would remove the Secretary of State's ability to appoint the chair. If the Secretary of State did not appoint the first chair, who would? Although the Secretary of State could delegate the appointment to the NHS Appointments Commission—as he does in the case of local organisations—in the end, it is a Secretary of State appointment.

As I said earlier on Amendment No. 104A, it is a necessary part of the constitutional arrangements to ensure public accountability that the Secretary of State appoints the chair of the commission. I do not see why this commission should be seen as any different from any of the other seven executive non-departmental public bodies that the department is concerned with.

Amendment No. 141, which is consequential on Amendment No. 140, would remove the Secretary of State's ability to appoint the first chief executive of the commission. It is our intention that subsequent chief executives would be appointed by the commission, but it is not unusual when establishing new organisations for the Secretary of State to make the first appointment, as happened in the case of the Commission for Health Improvement. This is not to do with issues of independence; it is simply to do with the fact that unless the Secretary of State is able to make such an appointment, there can be a long delay before the chief executive is in place. We all agree that, because of its importance, the commission should be up and running as quickly as possible.

Amendment No. 139 makes the valid and interesting suggestion that appointments to the board should be elected and nominated by patients forums. However, it would turn the commission into a patients forum representative body. The commission has a vital role to play in relation to the work of patients forums, but it is not there simply to act as a mouthpiece for them. It is a national resource for everyone who wants to speak up on matters that affect their health.

We want the board members of the commission to be of the highest possible calibre. Recruitment of the chair, chief executive and board members will be through open competition. We want the net to be cast far and wide. It should certainly not be confined to patients forum nominees or representatives.

As I said on Amendment No. 104A with regard to CHI, the commission will be funded from public money. There has to be a mechanism for ensuring that the money allocated to it is spent on enabling it to discharge its functions. The suggestion in Amendments Nos. 137, 142, 143, 144 and 145 seems to be that the Secretary of State should have no power of direction over how the commission should spend the money it is allocated. Instead, that accountability would be provided only through conditions attached to funding. That approach is more limiting. It would restrict what the commission could spend its money on to what was set out in the conditions. Directions could be added throughout the year, thus giving more flexibility.

As I said on Amendment No. 104A, if a serious problem arose in relation to the commission's activity or governance that, for whatever reason, the commission was failing to address, it would surely be right that the Secretary of State, who is accountable to Parliament for how that body acts, should be able to take whatever action is necessary at the time. If a non-departmental public body receives funds from the Secretary of State, as in the case of the commission, it is appropriate and necessary for there to be some control to guard against financial impropriety and to ensure that the funds are applied for proper purposes, as set out in the Bill.

The Government want the commission to be as effective as possible. We want it to have as strong a membership and staff as can be. We shall do everything we can to support that. However, as with any non-departmental public body, there must also be safeguards for the public purse and public accountability. That is why the Bill is drafted as it is.

Earl Howe

Perhaps I could just ask a question on the funding of the commission. So far as I know, there has been no indication from the Government thus far about the amount of funding available for the new structures. However, strong hints have been dropped within the Department of Health that the commission will be expected to subsist on even fewer staff than CHCs have nationally. If that is so, given that the commission is to have even more responsibilities than CHCs and that CHCs are already under-resourced, we may find ourselves looking at a system that is completely unable to function as currently envisaged.

It would be very helpful if the Minister could give the Committee at least some indication of the funding and staffing levels that he expects the commission to have. For example, given that the commission's role involves supporting patients forums as well as much else, will there be at least the equivalent of one full-time member of staff per patients forum? Has the Government's thinking advanced to that sort of level?

Lord Hunt of Kings Heath

I am not in a position to respond in the detail that the noble Earl would like. These matters are still being discussed within the department, and of course we are subject to the normal processes of future budgeting. As for the resources likely to be spent as a result of all the changes that are being made, as I said, I have absolutely no doubt that we shall be spending more resources and that there will be greater public and patient involvement in bodies such as the commission, the forums, the independent advocacy service, the patient advocacy and liaison services and even in local authority overview and scrutiny committees. There will undoubtedly be more resources and more people.

Although I cannot give more detail than that, I tell the noble Earl that we shall fund the commission as appropriate to perform its important functions. The commission has an important role to play in helping patients forums to be as effective as possible, and we shall have to ensure that it has the funds it needs to play that role effectively.

Lord Clement-Jones

I thank the Minister for that coda. However, considering how long these proposals have been on the table and the length of the consultation, it is very disappointing that all he can say is that more resources will be available than there are now. That is not particularly reassuring and it does not provide any specifics on the precise nature of the resources. As resources are a pretty important part of the effectiveness of the arrangements, I should have thought that that subject would be uppermost in Ministers' minds. It is regrettable that we must consider the legislation in such circumstances.

We are getting better at rolling our tongues round the phrase "executive non-departmental public body". I am grateful to the Minister for telling us how many such bodies so far are accountable to the Secretary of State. Nevertheless, the Minister's speech amounted to saying, "Those are the constitutional arrangements, and the Secretary of State must have that control because he is accountable for these non-departmental public bodies". That is a very circular argument. There is absolutely no earthly reason why the commission should not be accountable to a Select Committee of the House of Commons or of this place, or indeed to a Joint Committee. The commission does not have to be accountable, ipso facto, to the Secretary of State.

If the Minister wishes to have fewer sleepless nights and worry less about the finances of all these executive non-departmental public bodies, it would do him a power of good to think laterally and perhaps about how these bodies can be made accountable to a Select Committee. That would be a healthy development.

I therefore do not buy into the Minister's constitutional argument, although it was quite novel and I congratulate him on his creativity in coming up with that constitutional view. Nevertheless, centralising power is not a constitutional necessity. It is perfectly possible to decentralise and to do so in a genuine way. I believe that the Government are looking down the wrong end of the telescope with this commission. They have got it completely the wrong way round. It should be a commission that relies from the bottom up on the strength of the community, patients and public on the ground, not on the Secretary of State's fears. My amendments and those of the noble Earl, Lord Howe, all go in the same direction, which is trying to achieve a from the bottom up aspect.

I have no doubt that we shall be discussing these matters further, and I am sure that the Minister is in no doubt about the tenor of our remarks and the direction in which we want to go. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.30 p.m.

[Amendments Nos. 138 and 139 not moved.]

[Amendment No. 140 had been withdrawn from the Marshalled List.]

[Amendment No. 141 not moved.]

Lord Harris of Haringeymoved Amendment No. 141A: Page 86, line 15, at end insert— ( ) Employees appointed under sub-paragraph (4) who provide support to a Patients' Forum or Patients' Forums established under section 15(1) in accordance with regulations made under section 18(2)(h), shall have work programmes agreed by the relevant Patients' Forum or Patients' Forums and by the Commission.

The noble Lord said: This is a specific but important point which relates to the way in which the work programmes of the staff who will be employed by the commission and who will support patients forums will be drawn up. I understand that there will be a diaspora of staff working for the commission. Understandably they will have a presence in each primary care trust area and they will relate to the patients forums and other organisations in those areas.

The purpose of the amendment is to ensure that those staff at least carry out a work programme that has been approved, agreed or developed in consultation with the patients forums with which they will be working directly. Otherwise there is a danger that their work programme will be entirely set by the main commission and centrally driven, which is clearly not the Government's intention, which is about giving the patients forums the sort of freedom and facility to influence the local health services that they desire.

The amendment would ensure that those work programmes are developed in consultation with the line management arrangements, the national commission and the patients forums involving lay representatives at local level.

No doubt my noble friend will tell us that that is the intention, but it would be helpful if it were contained in the Bill, because my experience shows that over time, as the original intention diminishes into the past and new arrangements are spelt out, the commission may well take a much more directive view than was initially the case. That might then lead to a situation in which patients forums were not being provided with the support of staff whose work programmes they had some control over.

The amendment is saying not that all the work programmes of the staff will be directed by patients forums, but that they will be developed by the commission and the relevant patients' forums together

Lord Hunt of Kings Heath

I am grateful to my noble friend. He has raised an important issue. While I do not wish to recommend accepting the amendment tonight, I reassure the Committee that we wish to see a strong partnership between the local forums and the national commission, not the dominance of the local forums by the national commission, which is the fear expressed by my noble friend.

There is no doubt that a very important aspect of the commission's work is to support the work of forums. The support that commission staff give will clearly depend on the individual nature of each forum. For that reason, the forum-related work undertaken by the staff of the commission must be determined by a partnership arrangement between both parties.

We have already said that we shall make regulations about the relationship of the forums with the commission on this point in particular. I do not thin that it is appropriate to specify in the Bill the exact nature of the working relationship between the forums and the commission as inevitably it will be a movable feast. We recognise that in the early days of forums there will have to be a different degree of support from the commission as compared with the forums as mature organisations.

I stress two key points. First, we must remember that the commission is the employer of the staff. In that capacity it will have overall responsibility for the work of the staff and be accountable for their performance. Secondly, an important part of the assessment of the staff's performance will be the views of patients forums. The commission's staff will have to show that they performed their role of supporting forums effectively as part of the way in which individual staff will be performance managed. That is one of the ways by which the commission will be accountable to local people; that is, through the work of local forums.

The relationship between forums, staff and the commission is important. But the staff of the commission will also be working with many other bodies and on other issues. While the work of the commission staff will be determined to some extent by the support needs of forums, that will be only one factor that will enable it to set its work programme. It will also take account of other issues that are important to local people that it may get to hear about through OSCs, for example, or through its work with local community groups.

I hope my noble friend will accept therefore that, while I do not go down the route of Amendment No. 141A, I accept that it will be essential to have a close partnership between the commission and local forums where it is quite clear what the role of the staff will be and that there is an appropriate performance management regime in place. A key element of that will be the way in which the commission staff support the local forums. That will be a considerable factor in the way in which the commission judges the performance of its staff.

Lord Harris of Haringey

I am grateful to my noble friend for indicating that he supports the direction of the amendment. I am also grateful for his clear commitment that staff of patients forums will be employed by the commission at national level and be subject to all the employment circumstances that follow from that. That is an important principle in terms of demonstrating the independence of the staff supporting patients forums from local health service bodies and agencies.

However, I am not entirely satisfied that the responses given will in practice address the point. It seems to me that there could well be circumstances in which a local patients forum which, although to many independent bystanders, might appear to be doing an effective job, will be regarded by the commission as being a considerable "pain". Therefore a member of the staff of the commission, who will be performance managed on the basis of how well he or she supported the patients forum, will have the wonderful excuse that, because these people are complete maniacs to deal with, it is an impossible job and he cannot achieve anything. And the performance management regime may well recognise that.

Despite the fact that some patients forums will be difficult, will not fit a national pattern and will not be doing the sorts of things that the commission may wish them to be doing but will be doing other things relevant to their local communities or the interests of the patients they are representing, we would like to see a circumstance in which they will still be able to influence the work programme that the staff are supporting. It is clear that the staff will be doing other things as well. But it would be helpful if some way could be found of reflecting on the face of the Bill or perhaps in the many sets of regulations promised at a later stage, the partnership described by my noble friend.

Lord Hunt of Kings Heath

I have already intimated that we shall be bringing in regulations to govern the relationship between forums and the commission. I shall be happy to give further consideration to the specific point my noble friend raised to see whether or not we should put more detail into the regulations to cover it. In general one has to rely on common sense. In most cases, the relationship between patients forums and the commission would be able to deal with the issues raised by my noble friend. I do not see any reason why we should not cope with that satisfactorily.

Lord Harris of Haringey

I am grateful for that further assurance from my noble friend. I hope that when considering the shape of regulations explicit reference to the nature of the partnership and the handling of staffing arrangements will be made. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Lord Ampthill)

The Minister replied to Amendments Nos. 142 to 145 without my hearing the noble Lords who tabled them speak to them.

[Amendments Nos. 142 to 145 not moved.]

Schedule 6 agreed to.

Clause 20 [Abolition of Community Health Councils in England]:

Earl Howe moved Amendment No. 146: Page 26, line 14, leave out subsections (1) to (3) and insert— (1) The Secretary of State may by order provide for the abolition of Community Health Councils established for districts in England under section 20 of the 1977 Act and for the abolition of the Association of Community Health Councils for England and Wales ("ACHCEW") established under paragraph 5 of Schedule 7 to the 1977 Act. (2) Before making such an order, the Secretary of State shall consult with those bodies in subsection (3), and must be satisfied that there are in place replacement bodies able to meet the needs of patients and communities nationally and in all localities in England. (3) The bodies referred to in subsection (2) are—

1. (a) overview and scrutiny committees or joint overview and scrutiny committees provided for in sections 7 (functions of overview and scrutiny committees), 8 (joint overview and scrutiny committees etc) and 10 (application to the City of London) of the Health and Social Care Act 2001 (c. 15),
2. (b) Strategic Health Authorities,
3. (c) Patients' Councils,
4. (d) Patients' Forums,
5. (e) Community Health Councils,
6. (f) The Commission for Patient and Public Involvement in Health,
7. (g) The Association of Community Health Councils for England and Wales, and
8. (h) such other bodies as the Secretary of State shall deem appropriate."

The noble Earl said: The amendment has a simple purpose: to ensure that the abolition of CHCs and ACHCEW is not effected before the new bodies are fully operational. It is in the interests of patients and the public that there should be so far as possible a seamless transition between CHCs and their successor bodies. CHCs should continue to perform their statutory functions until the new arrangements are fully up and running. In some areas of the country it is more than possible that that will not happen by the target date of 1st April next year. In that event, patients must not be left without a watchdog. The timing of abolition for CHCs should depend on consultation.

Similar considerations apply to ACHCEW. As we all know, it plays a key role in consultation with government and with leading health professional and regulatory bodies such as the GMC, the RCN and the BMA. It runs high-profile monitoring campaigns such as Nationwide Casualty Watch, which highlights long waits for patients in A&E. It also produces a range of publications for lay representatives and patients and it provides training for staff as well as legal services and information. ACHCEW should be allowed to continue in being until the successor bodies have assumed responsibilities for all those functions. I beg to move.

Lord Clement-Jones

I support Amendment No. 146, for the cogent reasons given by the noble Earl, Lord Howe. The timing of the abolition of CHCs allied to the timing of the setting up of the new bodies is clearly crucial. On our calculation it could be anything up to nine months or a year before the new bodies come into effect. What will fill that gap? It should be the continuance of the old system until the new system is up and running. I should be interested to hear what scheme the Minister has in mind and how he intends to fill that gap.

Lord Hunt of Kings Heath

I agree that we need to ensure a smooth transfer from current arrangements to the new arrangements. It is our intention that CHCs will not be abolished until the commission and patients forums are in place and overview and scrutiny committees are carrying out their health service scrutiny functions. For that reason we have set up and are working closely with a transitional advisory committee, which is giving us great help.

Once the commission is established we shall be taking its view about the readiness of the new system, and particularly that of patients forums to take over from CHCs. Between now and the abolition of CHCs we shall work closely with all those organisations to ensure no gaps are left in the system. CHCs will not be abolished until we are confident all their functions have been picked up in the new system: independent advocacy by independent complaints advocacy providers; scrutiny by OSCs; and monitoring of local services by patients forums. There will be a managed transition to all parts of the system. Until the end of the year the transitional board will work closely with officials in my department, acting as a resource for them and providing insight into the issues that will be important to stakeholders as the system changes.

As regards consultation, I am very reluctant to prescribe with whom we should consult on the face of the Bill. However, I can say that arrangements to involve and consult stakeholders are in place. The department has a great deal of experience in consulting with a wide range of organisations. We shall certainly not let the system down in relation to patient/public involvement.

Earl Howe

Although the Minister has not been able to go quite as far as my amendments would require, I find his reply largely reassuring. I shall, of course, read his response carefully in Hansard. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 147 not moved.]

Clause 20 agreed to.

9.45 p.m.

Earl Howemoved Amendment No. 148: After Clause 20, insert the following new clause—

"REFERRAL OF CONSULTATION ARRANGEMENTS AND DISPUTED DECISIONS

(1) In section 11(2) of the Health and Social Care Act 2001 (c. 15) (public involvement and consultation) for paragraph (a) there is substituted— (a) the Secretary of State, (aa) Care Trusts,". (2) Before an establishment order for a Strategic Health Authority, an NHS trust, a Primary Care Trust or a Care Trust is made, varied or revoked, the Secretary of State shall consult those bodies in subsection (5) whose districts are wholly or partly within the area of operation of the relevant authority or trust. (3) Any Strategic Health Authority considering whether to exercise its powers under section 17A of the 1977 Act shall first consult the bodies provided for in subsection (5) whose districts are wholly or partly within the area of operation of the relevant Primary Care Trust. (4) The Secretary of State shall by regulations mace provision—

1. (a) concerning the application of section 11 of the Health and Social Care Act 2001 such that if in the view of any of the bodies in subsection (5) consultation arrangements are inadequate, the body in question shall refer the matter to him;
2. (b) for the referral to Strategic Health Authorities of disputed decisions concerning the planning or operation of health services by bodies detailed in subsection (5);
3. (c) for circumstances in which bodies detailed in subsection (5) shall refer decisions concerning the planning or operation of the health service to him including 1.17e circumstances in which referrals shall be made directly to him by Patients' Forums and Patients' Councils on the failure of overview and scrutiny committees to respond to a referral made to them under section 18(2)(m) of this Act;
4. (d) placing a duty on the Secretary of State and those bodies receiving referrals to respond to them within a specified time limit and giving reasons for any decision taken in relation to the subject matter of the referral.

(5) Those bodies referred to in subsections (2) to (4) are—

1. (a) overview and scrutiny committees or joint overview and scrutiny committees provided for in sections 7 (functions of overview and scrutiny committees), 8 (joint overview and scrutiny committees etc) and 10 (application to the City of London) of the Health and Social Care Act 2001,
2. (b) Patients' Councils,
3. (c) Patients' Forums."

The noble Earl said: This amendment takes us into an area that is of prime importance if the voice of patients is truly to be heard, and if that voice is to be a constructive instrument for change in the health service. The regulations governing community health councils grant a right to CHCs to be consulted on any proposals that would lead to a major change in the provision of healthcare in an area. They also enable CHCs to notify the Secretary of State when they are not satisfied that sufficient time has been allowed for consultation on proposals of that kind, or where they believe that a consultation has been inadequate.

There are many examples of that sort of consultation. At present, if a health authority or PCT wishes to make a change in the way that services are provided to patients, the CHC is consulted. If, as occasionally happens, the proposals are controversial—for example, those relating to Kidderminster Hospital—local people need to be able to mount an appeal against such decisions, and, if need be, to refer them to the Secretary of State. That is what a CHC can do currently.

Once CHCs have been abolished, I am very worried that there will be no equivalent mechanisms to ensure the same kind of consultation with, and by, the successor bodies on changes to local health services. There are several gaps in the Bill in this respect. We understand that overview and scrutiny committees (OSCs) will be able to make referrals to the Secretary of State on controversial decisions, or if they think that consultation has not been adequate. Well, that is positive; but there are no provisions to that effect in the Bill. We do not even have draft legislation to go on. Can the Minister say what will happen if an OSC chooses not to refer a matter of intense local concern and simply does nothing? In those circumstances, and as a longstop, I believe that there ought to be a way for patients forums to refer directly to the Secretary of State, or to their local strategic health authority.

Again, at present, if there is a consultation exercise that falls short of what is correct—let us say, if insufficient information is given out, if facts and figures are misrepresented, or if key people have been left out of the loop altogether—CHCs have a duty to refer the matter to the Secretary of State. When CHCs disappear, the Health and Social Care Act 2001 does not provide any channel for the referral of failures to consult or of inadequate consultations. This means that those health bodies which decide not to consult, or which contrive to fix the result of consultations, will get off scot-free unless challenged in the courts. Again, OSCs have no rights of referral in this Bill. Patients forums will have neither the resources nor the legal power to engage in legal proceedings. So what remedy will there be? Apparently none.

There is another kind of consultation absent from the Bill. At the moment, the Secretary of State must consult CHCs on reorganisations of health authorities, NHS trusts, and PCTs, as well as on changes to GP and pharmacy services. These are matters that can make a real difference to local communities. It is absolutely right that those communities should have a chance to say what they think. In Clause 1 of the Bill we have a provision that permits consultation on the establishment or variation of a strategic health authority. It seems to me that that does not go far enough. We should have a specific provision on the face of the Bill that requires consultation on all re-organisations, including the establishment of care trusts. But the same applies equally to proposed changes in specialist commission—intensive care, HIV, paediatric care and coronary care. II there are flaws in the plans put forward to re-organise this or that aspect of healthcare provision, and local people realise that, they should have a guaranteed route up the line to the Secretary of State.

Consultation of this nature is not and should not be an optional extra. The whole point of any reform to the National Health Service is to improve services to patients. The best way to ensure that we have that right is to ask patients what they want. I suggest that that dialogue between government and the public is fundamental to good policy-making. It is also one way of balancing out the tendency of a state-run monopoly provider of healthcare to impose solutions from above on a one-size-fits-all basis.

My amendment attempts to carry through to the Bill the current statutory obligations to consult at government and local level on major decisions affecting patients. I believe they are vital for the wellbeing of patients and the NHS. I beg to move.

Lord Clement-Jones

I rise to support strongly the noble Earl, Lord Howe, on Amendment No. 148. The omission of the right of referral for disputed decisions in respect of the new bodies is serious and significant. I hesitate to rub further salt in the Minister's wounds about South Birmingham CHC, but that was a classic example of the importance of the rights of CHCs as currently constituted.

It is important for patients and their representatives to be able to dispute and to refer such disputes when there are arguments about the nature and structure of provision within the NHS. As I read it, there is nothing equivalent to that in the legislation. That would be deeply regrettable. It serves only to increase the mistrust of the provisions; that the aim is to make an easier life for NHS managers, Secretaries of State and Ministers in the Department of Health. However, that is not what we should be here to provide. We should be here to provide the possibility of robust public debate. That is what it is about. There should be the relevant and necessary powers to enable the bodies being set up under the Bill to engage in that. I look forward to hearing the Minister's comments.

Lord Filkin

I broadly agree with the objectives of what both noble Lords have argued. However, I suggest that they are already adequately covered, both in the Bill and in the regulations made under the Bill.

Therefore, the new clause is largely unnecessary. It duplicates the consultation provisions which are already in place or that we intend to put in place. For example, there are already specific duties of consultation in respect of primary care trusts. NHS trusts and care trusts, the details of which are set out in regulations. Clause 1 of the Bill gives the Secretary of State powers to make regulations containing requirements as to consultation which must be complied with before he makes an order under Section 8 of the National Health Service Act 1977 relating to strategic health authorities. Section 11 of the Health and Social Care Act, as amended, will require strategic health authorities to consult on services for which they are responsible.

My ministerial colleagues have made clear that there is to be a robust framework for referral by OSCs to the Secretary of State on matters of concern that are being consulted on and on the nature of the consultation to ensure that those democratically-elected representatives of local communities can represent the views of their local communities to the national level. We are considering how best to provide for that within the framework of Section 7 of the Health and Social Care Act.

We are sympathetic to the need to carry out proper and effective consultation and to ensure that disputed decisions are properly dealt with by democratically elected representatives of local people. However, this new clause overcomplicates and clutters the Bill with, we suggest, unnecessary detail.

We have made necessary provisions in the Bill and in the Health and Social Care Act—for example in Section 11—to ensure that the views, concerns and interests of patients and the public at large are fed into local decisions about the planning and development of the NHS. The complex set of arrangements set out in the new clause over-complicates what is already provided for in the Bill.

I turn to the specific matters. For example, with regard to patients forums, Clause 17, in relation to annual reports, already gives very clear powers for patients forums to carry their representations to the Secretary of State. In previous discussion we dealt with the right of OSCs to be consulted on any significant changes affecting the health service in the area. The reverse is the case with regard to the view that this is intended to make life easier for the Secretary of State or for health service professions. It is a belief that by articulating patient and public views one provides a more effective challenge to improve the service—one actually ensures that services are more likely to be changed. Therefore, the whole Bill is focused on strengthening public voices as one of the means of reforming the health service as well as being a right in its own respect. I therefore urge the noble Earl to withdraw the amendment.

Earl Howe

I found that reply very interesting. It revealed a number of points that I had not woken up to. I shall go away and study carefully what the Minister said. In essence, he is saying that this amendment is completely unnecessary because all the angles are already covered. I hope that that is right. I shall endeavour to satisfy myself that what the Minister said—I am sure in all good faith—is correct.

Perhaps I may ask the Minister, in so far as there are regulations still to come, when they are likely to be forthcoming. Does he have any idea when we are likely to see those regulations laid? For example, will it be in the next couple of months or a little later?

Lord Filkin

I cannot give a specific answer here and now, but I will give an indication of that matter at the next stage of the Bill.

Earl Howe

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

Amendment, by leave, withdrawn.

[Amendment No. 149 not moved.]

Lord Clement-Jonesmoved Amendment No. 150: Before Clause 21, insert the following new clause—

"PRISONS

The Secretary of State shall by regulations determine that responsibility for health services in prisons shall be assumed by the National Health Service, and the Prison Act 1952 (c. 52) and the Prison Rules 1999 (S.I. 1999/728) shall be amended accordingly.

The noble Lord said: We come on to pastures new with Clause 21. It deals with the joint working of the NHS and the prison health service.

Gross failings in the prison health service have been identified by a number of Members both of the other place and here, but notably by my noble friend Lord Avebury. He has discovered that, despite promises by Ministers to the Health Select Committee in the year 2000, there are still some 500 prisoners unable to access the secure psychiatric units that are needed. Yet these prisoners are currently in-patients on prison hospital wards. That is not something dreamt up by some estimate. It has been confirmed by Her Majesty's inspector of prisons. Indeed, it could actually be a gross underestimate.

The problem does not just reside in the area of mental health. This time last year in its report Prison Medicine: A Crisis Waiting to Break, the BMA had strong words to say about prison governors interfering in the clinical judgment of doctors by prohibiting the use of the most cost-effective medications in order to divert more resources into gaol security.

The then Chief Inspector of Prisons, Sir David Ramsbotham, said that the BMA was confirming horrendous examples of defective prison healthcare I wonder what has really changed at all since that report. Indeed, I wonder what has changed at my local prison—Brixton prison—since 1999 when the governor threatened to turn away prisoners with health problems. He said that delivery of healthcare fell far short of the most basic acceptable standards. We need the continuity that complete merger between the prison health service and the health service could provide.

All except 24 of about 70,000 prisoners currently inside will come out. At present, we risk releasing them in a worse state of health than when they went in. According to the Office for National Statistics in a report published in 1998, 70 per cent of them are suffering from some form of personality disorder. In his 1996 report, Patient or Prisoner, Sir David Ramsbotham said that it was high time that the NHS assumed responsibility for healthcare. Regrettably, the 1999 Prison Service and NHS Executive joint report on the future organisation of prison health care put its trust, as does the Bill, in partnership arrangements.

Until the needs of prisoners are included in NHS estimates, provision will not be properly resourced. Prisons should be regarded as outstations of nominated NHS providers, which should be contracted to provide both services and staff. All informed commentators now agree that joint arrangements between the prison health service and the NHS are inadequate. Prison managers would welcome the assumption of health responsibility by the NHS.

We on these Benches keep suggesting new avenues that in many cases take two years for the Government to adopt. I remind the Minister that integration between health and social care was firmly resisted during the passage of the Care Standards Act 2000 but finally came in the shape of care trusts under the Health and Social Care Act 2001. In 1999, during the passage of the Health Act 1999, we suggested that CHI should cover both the NHS and independent hospitals. That was finally accepted by the Secretary of State in response to the Kennedy report early this year.

Will our suggestion about complete integration of the prison health service and the NHS suffer a similar fate? Will we have to wait another year before the Government decide that such integration is sensible? I suggest that the Minister brings forward the blinding light and accepts that that may be a sensible way forward that would be of great benefit to those who are currently in prison. I beg to move.

10 p.m.

Earl Howe

Like the noble Lord, Lord Clement-Jones, I welcome the opportunity to debate the Government's proposals for prison healthcare. I shall speak to Amendments Nos. 151, 153, 155, 157 and 158. Like the noble Lord, I have profound misgivings about the measures contained in the Bill and do not believe that they are anything like adequate to address the serious crisis that has overtaken prison doctors and their patients in the prison system.

Healthcare in prisons has been in a dire state for more than a decade. When he was chief inspector in 1991, Judge Stephen Tumim made strong criticisms of medical care in Wormwood Scrubs. Similar but more sweeping concern was repeatedly expressed by his successor, Sir David Ramsbotham, in connection with the Scrubs and many other prisons.

The prison environment presents perhaps the most extreme combination of adverse circumstances for health outcomes that one can dream up. As a population, prisoners are disproportionately afflicted with a range of serious health problems, the most prevalent and well recognised of which are mental illness, sexually transmitted diseases including HIV, and drug addiction.

In addition, the general physical health of prisoners is often poor. A sizeable proportion of offenders, especially young offenders, have experienced homelessness and have lived on the streets. Many are poorly educated. To add to that, living conditions in prison, which to say the least are not conducive to physical or mental health at the best of times, let alone when overcrowding is as bad as it is now, can often exaggerate a pre-existing condition.

In combination with the health problems of prisoners is a severe lack of healthcare resources in prison. Budgetary restrictions prevent doctors from prescribing the most effective medicines. There is a lack of access to psychiatric nurses, occupational health workers, substance abuse counsellors and clinical psychologists. If a doctor applies to transfer a prisoner to hospital for specialist treatment, the authorities will often be reluctant to pay the costs, even when the lack of specialist care could have serious results. Nowhere is that more true than with prisoners suffering from a serious psychiatric disorder. Even when a transfer to hospital is agreed, there are often delays, during which the prisoner is at increased risk of self-harm or suicide.

The scale of mental health problems in prison is great. In 1996, a study showed that over 60 per cent of unconvicted male prisoners held on remand suffered from mental disorder. Some were in need of immediate treatment but were not receiving it. If ever we find ourselves trying to identify the causes of crime, in order to be tough on them, I shall defy anyone to come up with a better example than untreated mental illness or untreated drug dependency in prisons. The failure to deal properly with such conditions has a direct knock-on effect on the levels of criminal activity and creates little more than a revolving door in and out of prison for many offenders.

Against that background, it is no wonder that morale among prison doctors is generally at a low ebb. There is an acute shortage of prison GPs. Experienced prison doctors are leaving, and new doctors are deterred from entering. It is not just the frustration of working with too few resources that deters doctors, although that is a major part of the problem. The problem is even more deep-rooted than that. The noble Lord, Lord Clement-Jones, alluded to that. Doctors in prison find that their clinical judgment is second-guessed or interfered with by administrators, including prison governors. The BMA has reported a large increase in the number of inquiries and complaints from prison doctors who describe such situations.

Doctors in prisons have an ethical duty to provide standards of care in accordance with clinical need and on a par with those available to society at large. It is difficult for them to compromise those standards, even though most doctors recognise that there will inevitably be resource limitations in prisons that restrict their autonomy in one way or another. It is unacceptable for a professional clinical judgment to be overruled by management decisions that discount medical opinion and ignore the best interests of the patient.

Although much good can be done by the injection of further resources, as the Bill envisages, it is idle to suppose that doctors will be able to make headway in the existing crisis unless they are given unfettered clinical discretion to treat patients according to need and in the best possible way. I have grave doubts that a so-called partnership between the NHS and the Prison Service will be anything more than a cosmetic device that will leave prisoners almost as ill served as they are now. Joint working goes on at the moment and makes little impression.

In the final analysis, prison administrators are not doctors and do not understand medicine. Dr P J Keavney, chairman of the BMA Civil Service Committee, said: The Prison Service itself does not help matters by its insistence on an agenda for its governors which concentrates on process instead of clinical outcomes. The lack of understanding of clinical governance is a bar to the delivery of adequate healthcare within our penal institutions … In the end, a system focusing simply on 'process' to satisfy short-term political … concerns will fail to resolve the clinical needs of patients". I fear that that is the answer to Ministers who argue—admittedly, with some logic but without a sense of the realities—that prison governors must retain a sense of ownership of the health and well-being of the prisoners in their care and that that can be preserved only if governors retain direct accountability for prison healthcare.

However good governors may be in other ways, there is too much evidence that the sense of ownership that currently exists counts for nothing so far as concerns prison healthcare. The BMA cites one instance of a prison governor expressing indifference to the likelihood of a prisoner dying as a result of failure to transfer him to hospital. I do not say that that is typical but it is symptomatic of the wider problem.

It was again Sir David Ramsbotham who argued in an important paper published some six years ago for the full integration of prison healthcare services with the NHS. I agree with him that nothing short of a complete merger of the NHS with the prison medical service is capable of putting these matters right.

Yes, I admit that that would present difficulties. It would involve drawing up protocols that preserved the authority of governors in non-clinical matters and that hound doctors to observe and take account of the need to preserve security and prison discipline. However, that kind of protocol is not an impossibility; it is attainable. Simultaneously, a comprehensive health needs analysis of the Prison Service should be commissioned. I urge the Government to put such an analysis in train, whether or not this part of the Bill is amended.

I hope that the Minister will be able to respond constructively to the very important concerns that I and the noble Lord, Lord Clement-Jones, have raised.

Baroness Masham of Ilton

At this time, and for several weeks now, I have had down for Written Answer a Question concerning the healthcare unit at Wandsworth Prison. It is in need of a new unit. Noble Lords would have to see it to believe how diabolical it is.

The unit is totally inadequate. Mentally ill and sometimes very dangerous prisoners are mixed with physically ill patients. The situation is quite unsatisfactory. A few weeks ago I visited Wandsworth Prison and met a young man with two broken legs. He had been assaulted by one of the prisoners who is mentally ill. I told the young man that I would tell noble Lords about his case.

At the present time there is a 60 per cent shortage of nurses at Wandsworth. That is due partly to the great expense of living in London. However, I was impressed with the work being done to tackle dug abuse, which has been helped by the drugs strategy. But they have no facilities to help those with severe problems with alcohol, and we have been told that the strategy will be out in two years' time. I hope that, in that time, something will be done to alleviate the very severe problems within the Prison Service. At the moment there is a vacuum. Alcohol presents just as much of a problem as drug abuse with regard to violence in the community and wife beating. Many alcoholics land up in prison.

Many prisoners are sent off to other prisons quickly and often their medical notes do not accompany them. A much smoother facility should he provided for this. Out of sight is out of mind, but this is a serious problem and we should do more to help prisoners who have problems.

I was serving on the Yorkshire Regional Health Authority when many of our mental hospitals closed down. One had to ask what would happen. I knew then that many of those patients would turn up in the prison system. That has happened. We must do something about this. Much better links should be established within the community because prisoners are let out into the community without links, without notes and without access to a GP. Many do not have GPs because they live such chaotic lives.

I could discuss this at length. We must look at this matter very seriously. There is a great need and many people currently in our prisons have serious problems of illness.

10.15 p.m.

Baroness Finlay of Llandaff

I support the amendments. The proposals in the Bill are to be welcomed and will address some of the problems in the Prison Service. However, I should like to reiterate the problems of the people working in the service and the lack of a career structure. It is not attracting high calibre doctors because there is not an adequate career structure within the Prison Service. Prison medicine per se is in its infancy and there is no developing research base—which there should be—to look at the best ways of improving the healthcare of prisoners.

I was involved in carrying out a study among young male remand prisoners. It was very difficult to carry out the study in the prison, although we did get some co-operation from the prison governor and from some prison officers. We found an alarming level of unresolved grief among the young lads on remand. They had had horrific losses and bereavements and had never had any help or support to resolve them. As a result, they have ended up, through various routes, inside and on remand. Some of these young prisoners reported that they were frightened of being in the sick bay. They preferred to go back to their cells if they were ill because they were frightened of the other prisoners.

The problem for prison doctors is that they do not have the support infrastructure. Care assistants are recruited partly from those with a nursing background, but many are recruited from the ranks of the prison officers themselves, who come through with a slightly different approach and different mentality.

I can understand the fear that doctors might possibly jeopardise security but it is important to remember that doctors, through their duties outlined by the GMC, particularly in its document on confidentiality, have a duty to the individual. But they also have a duty to society, and they must weigh up the balance between the duty to the individual and the duty to society in taking clinically-related decisions.

If the Prison Medical Service were to be properly incorporated into, and viewed as a part of, the NHS structure—with an adequate career structure—it might stand a chance of recruiting higher calibre staff and of attracting people who want to undertake research into the area and look for ways of improving some of the terrible outcomes that we currently see.

Lord Filkin

A number of noble Lords have spoken powerfully about the importance of healthcare in prisons and the severity of the challenge facing the health service, however it is organised, in the Prison Service.

The noble Earl, Lord Howe, drew attention to the constellation of drugs, sexually transmitted diseases, basic poor health and mental health problems which forms a very serious and dire cocktail of pathology. It causes considerable problems to many people in prisons and presents a great challenge to the public service in its attempts to improve services.

The argument put forward by the noble Earl, Lord Howe, and the noble Lord, Lord Clement-Jones, is, in essence, that there is only one solution—that is, the immediate and forthwith transference of all prison health functions to the NHS. While the Government's mind is not totally closed to that, we believe—certainly at this point in time—that as an immediate action it is too simple and would not be effective.

As the noble Earl, Lord Howe, recognised, however health services are funded and accountable, in a prison context there has to be a strong partnership arrangement between prison management and health service provision. It would be impossible otherwise to function effectively. That is why the Bill as it stands puts an enormous pressure and focus on making partnership arrangements work better in the health service in prisons in the future.

For example, as part of the partnership arrangements that we have established, all prisons have completed joint health needs assessments with the active involvement of their local NHS partners. Those assessments are forming the basis of joint prison health improvement programmes. They will be completed by the autumn and will set out local plans for joint work to improve services for prisons. This represents a far closer and more systematic approach to partnership working between prisons and their NHS partners than has ever existed before. It is clear also that there is a significant improvement in the resources going into prison healthcare. The Government hope that will go further.

Clause 19 is aimed at opening up new opportunities for further partnership working between the NHS and the Prison Service to improve health services for prisoners. Amendments Nos. 151 to 153, 155 and 157 to 158 would turn that partnership flexibility into something of a one-way street. Amendment No. 150 goes further, by attempting to bring to an end existing partnership arrangements and make the NHS solely responsible for the healthcare of prisoners—a position advocated by the noble Lord, Lord Clement-Jones, on Second Reading and this evening.

Amendment No. 151 fundamentally alters the scope and purpose of the duty of co-operation. As it stands, that duty promotes joint working between NHS bodies and the Prison Service, with a view to improving the way that both exercise their functions in relation to securing and maintaining the health of prisoners. The amendment removes any reference to improvement and envisages only the transfer of Prison Service functions to the NHS.

Amendments Nos. 152 and 153, 155, 157 and 158 would effectively prohibit delegation of specified NHS functions to the Prison Service but would retain the provision for the Prison Service to delegate its health-related functions to the NHS. I will be open with the Committee about the way we see those new flexibilities working. We envisage that the greatest local demand for use will be for delegation of health-related Prison Service functions to NHS bodies—for example, in the area of mental health. But those are partnership provisions and we felt it right that they should be evenhanded in allowing delegation in both directions where that would improve the way that services are delivered.

The emphasis in the clause is on responding to local proposals developed by the Prison Service and the NHS in partnership. We do not wish to rule out the potential for sound and beneficial proposals that may involve an element of delegation from the NHS to the Prison Service. The amendments would restrict the options available to local services for improving healthcare for prisoners, so we oppose them.

Amendment No. 153 deletes the lines which specify that the new flexibilities for delegation and budget pooling can be used only if they are likely to lead to an improvement in the way that those functions are exercised in relation to securing and maintaining the health of prisoners. I cannot see how removing that qualification could be thought desirable—notwithstanding the other amendments suggested by Opposition Members.

A fundamental principle of the duty of co-operation in Clause 21(1) and the delegation of flexibilities in subsections (2) and (4) is that they are about improving the way that functions are exercised—which, broadly speaking, should have the effect of improving services. That principle is important because it makes clear that the main purpose of the provisions and of the arrangements made under them is to improve services for patients.

Amendment No. 150 goes one step further in its intention of passing full responsibility for the healthcare of prisoners to the NHS. I appreciate the reasons for that suggestion. We considered that option carefully at the time of the review that led to the publication of The Future Organisation of Prison Health Care in 1999. That review left open the option of a transfer at some point in the future but concluded that for the time being the best way to improve prison health services was through a close partnership between the Prison Service and the NHS. There are a number of reasons, but principally we believe that neither the NHS nor the Prison Service can provide healthcare for prisoners without the active cooperation of the other.

Healthcare activity in a prison—as the noble Earl recognised—is inextricably linked with other aspects of the establishment's operation. Issues of security, discipline and the wider prison regime all need to be managed alongside the delivery of the effective and improved health services that are the Government's aim. The prison governor and the Prison Service more widely must retain a stake in health services. At present, the formal partnership that we have established between the Prison Service and the NHS to improve health services for prisoners represents the best way forward.

Perhaps I should mention at this point, as the noble Baroness, Lady Masham, made specific reference to Wandsworth, that my step-daughter has recently been appointed deputy governor there. Therefore, I have a strong personal interest in these issues.

We have not ruled out such a transfer in the future—although, because health issues and wider aspects of the prison regime are so closely linked, such an arrangement would need to incorporate a strong partnership element to stand any chance of success.

The policy document, The Future Organisation of Prison Health Care recommended that the partnership arrangements that we have put in place should be kept under active review, and we shall do just that. However, we believe that these arrangements should first be given an opportunity to demonstrate what they can achieve. I therefore oppose Amendment No. 150.

In opposing the amendments tabled by noble Lords opposite, I nevertheless share their aims of ensuring that the NHS has a greater stake in the delivery of health services for prisoners, and that we secure significant improvement in the quality of those services, as has been so strongly advocated in the debate. That we are agreed on those aims is in itself valuable. We differ only on the matter of how they are best pursued at this time.

I believe that the arrangements that we adopt for the prison health services, both now and in the future, must include a strong element of partnership. Perhaps I may take this opportunity to provide a further illustration of the way in which the partnership between the NHS and the Prison Service is helping to improve the standard of care that prisoners receive.

The NHS and the Prison Service are working together to help to deliver the Government's commitment to supporting doctors and protecting patients. I am pleased to announce that the National Clinical Assessment Authority will, from this month, be providing the full range of its advice and assessment services to the Prison Service for those doctors the service employs.

The NCAA is at the heart of the Government's co-ordinated approach to improving the quality of healthcare and ensuring better protection for patients and better support for doctors. As the noble Baroness, Lady Finlay, rightly remarked, such an approach is necessary if patients are to receive the quality of care that they have a right to expect in prison. It provides a central point of contact where concerns about a doctor's performance arise and will give extra support to doctors where necessary. The NCAA currently provides advice and makes recommendations to NHS hospitals and health authorities so that they can take appropriate action to check poor performance, to ensure that doctors are practising safely and to discipline or suspend doctors whose practice gives rise to serious concerns much more quickly.

As part of the formal partnership that we have forged between the Prison Service and the NHS, the benefits of these important services will be brought to bear on health services in prisons. This is a concrete example of the way in which we believe that partnership working is fundamental to improving healthcare in prisons.

In conclusion, the provisions in the clause will enable closer partnership working and emphasise the shared responsibilities that both the NHS and the Prison Service have in this crucial area. They strengthen the foundations that we are laying for real, sustained improvements in health services for prisoners, and widen rather than curtail the options for longer term development of these services.

Baroness Masham of Ilton

Before the Minister sits down, perhaps I may say how delighted I am to hear that his step-daughter is assistant governor at Wandsworth. I was very impressed with the staff we met there. I recommend that the Minister should go with her to see the healthcare centre for himself. It would make life so much easier for the staff and the prisoners if the prison had a new unit. It is having a new kitchen, but the health facilities should have come first.

Lord Filkin

I am happy to give that commitment in my private capacity.

10.30 p.m.

Lord Clement-Jones

I thank all those who have taken part in this important and interesting debate. In particular, I thank the Minister for his carefully considered reply, the noble Earl, Lord Howe, for his powerful speech and the noble Baronesses, Lady Masham and Lady Finlay, for their firsthand knowledge in this area, which has strongly informed the debate.

I am interested in the Minister's careful consideration of this matter. He mentioned that the option of complete transfer was considered in the document published in 1999. But the interesting point is that both of the previous HM chief inspectors came to the conclusion that transfer to the NHS was the best option. I am most interested in the fact that the Prison Service and the Department of Health have not agreed with that conclusion. Both Sir David Ramsbotham and Sir Stephen Tumim made it quite clear that, until that transfer took place, the health service in prisons would not be adequate.

Clearly, one must welcome the Minister's commitment to more resources, to the health improvement programmes in prisons, and to a number of other developments, such as the involvement of the National Clinical Assessment Authority. Of course, all those are very positive developments. However, this boils down to issues such as recruitment, clinical governance, and control. If we are not careful, and if health service provision in prisons continues to be a Prison Service responsibility, this will be a grave disincentive for the provision of quality medicine in prisons. That is my main worry. If this provision were brought into the mainstream, the quality might more easily be raised.

I suspect—although I do not know—that the reason for not giving the health service rather more responsibility in this area is to do with organisational tact. I thought it was slightly bizarre that this matter was seen as a two-way journey, as opposed to a single journey, under Clause 21. There are few circumstances in which community medicine would be provided in a prison. Although one can always be creative about these matters, I can see few people wishing to have their health services delivered in a prison. Perhaps that is just my misinterpretation of the Minister's comments.

It will become quite inevitable that we shall need a much greater transfer of responsibility to the health service. Of course that must take place within the discipline provided by the prison; that goes without saying. One would not hand over a prisoner to a general practitioner or an acute NHS hospital, lock, stock and barrel, just by transferring responsibility for their medical and health needs. That certainly does not follow from the integration that I am proposing.

The hour is late. This has been an extremely interesting debate. It is rare for us to have this kind of debate, because it crosses departments. None the less, it is extremely important that we keep worrying at this issue, because it is desperately important that we improve the healthcare in our prisons, as we have heard tonight. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 21 [Joint working with the prison service]:

[Amendments Nos. 151 to 153 not moved.]

Baroness Noakesmoved Amendment No. 154: Page 27, line 24, leave out paragraph (a).

The noble Baroness said: I rise to move Amendment No. 154, and will also speak to Amendment No. 156. Amendment No. 154 deletes paragraph (a) of subsection (3) of Clause 21, and Amendment No. 156 is consequential in respect of paragraph (d). Paragraph (a) allows for arrangements to be prescribed for a fund to be set up. Both the NHS and the Prison Service can make contributions to such a fund, and the fund can pay the expenditure of the NHS and the Prison Service. That might seem straightforward, but I believe that it raises some important issues about accountability.

I turned to the Explanatory Notes to find out what these arrangements were all about. Paragraph 124 states that subsection (3)(a) enables the creation of pooled budgets".

That is nonsense. A budget is not a tangible thing that needs to be created by statute. It is a simple construct involving accountants bringing together plans of how money is to be spent, and, in a situation such as this, of how the two parties would share the burden of the expenditure.

Rather more worryingly, the Explanatory Notes go on to say: The resources contributed by each body will lose their identity as health or prison service money".

That is the heart of the problem. A fund seems to have the potential to put NHS money beyond public scrutiny. I have a number of questions for the Minister on that. If money is not health or Prison Service money, what is it? Who is accountable for it? Who will physically manage the fund, including operating controls over expenditure? Will accounts be required for the funds? If so, who will draw them up? Who will audit the funds? Will it be the C&AG via the Prison Service or the Audit Commission via the NHS? Do either or both of those have access to money placed in such funds? What will happen if there is money in the fund at the end of the financial year? Does it escape the normal rules of annuality? If not, which of the NHS and the Prison Service accounts for it?

If those questions cannot be answered satisfactorily, the Committee might well conclude that the arrangement funds are dangerously irresponsible in terms of financial accountability. I beg to move.

Lord Filkin

Amendments Nos. 154 and 156 would remove the provisions for the establishment of pooled budgets between the Prison Service and NHS bodies. The noble Baroness has said why she thinks that would be appropriate. The amendments would undermine the fundamental aim of the clause, which is to promote improved opportunities for partnership working between the NHS and the Prison Service.

The provision for pooling of budgets allows for simplified and significantly more joined-up commissioning of health services for prisoners. It is an important aspect of the clause and a valuable tool for delivering the objectives about which I have spoken.

The point can best be made by illustrating how the partnership is working at the moment and how the pooling of resources can and does help. At present, 18 prisons in England are working with local NHS partners to develop new NHS-funded mental health teams to work in prisons. A further 25 such teams will be established during 2002–03 and a further wave by 2004.

The new NHS mental health teams are beginning to work in those prisons alongside existing staff employed by or contracted to the Prison Service to provide better care to inmates with serious mental health problems. The Bill will allow local services to put in place much closer partnership arrangements to get the best from the health services provided by the prison and its local NHS partners.

For example, in agreement with the prison, the local PCT could take responsibility for commissioning a single package of mental healthcare for prisoners. The Prison Service could delegate to the PCT the task of securing mental health services for inmates in that prison. The PCT could then commission services using a pooled budget comprising Prison Service funding currently spent on providing care for mentally ill prisoners and the resource the PCT is investing to develop the new NHS "in-reach" mental health teams.

Such arrangements could help to deliver a single, locally agreed and jointly owned package of care that was far better integrated and better value for money because of the PCT's healthcare commissioning expertise and leverage. It goes beyond what could be achieved through a system of contracts and payments between the individual agencies concerned.

The noble Baroness, Lady Noakes, raised some important but—and I do not wish to denigrate them essentially technical points about how accountability chains and audit responsibilities will be handled. Under existing Section 31 provisions, each partnership needs to have a written agreement setting down the key framework issues for the partners to refer to. That includes the aims and outcomes of the partnership, the resources, the way in which the partnership will be managed, the eligibility criteria and assessment processes that are agreed and how disputes will be managed. A key feature will be the way in which the partnership is monitored, and that will be determined locally. We envisage that similar arrangements will apply to the new provisions.

Although this is no more than speculation—and we shall have further opportunity for clarification if necessary—it seems to me that there must be analogies between the outsourcing arrangements which I described made by prisons and PCTs. Although a prison may give its budget to a PCT, the prison will still be ultimately accountable for the effective use of those funds. Similarly, the PCT may be accountable for how it spends both its funds and the budget delegated to it by the Prison Service.

Those are important points and—to put the mind of the noble Baroness, Lady Noakes, at rest—I shall ensure beyond any doubt that there is no uncertainty or ambiguity about them. The fundamental point, however, is that we believe that such pooled budget arrangements have the potential to make significant improvements in the quality of healthcare in prisons. We therefore believe that they are an important part of the Bill.

Baroness Noakes

I thank the Minister for that reply. However, nothing he has said has explained why a pooled fund is necessary to achieve the results he has outlined; those results could be achieved in various ways. I asked some specific questions but I did not receive specific answers. However, in view of the lateness of the hour, I ask the Minister to reflect on the questions and to write to me so that we can resume our conversation at a later stage if necessary. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 155 to 158 not moved.]

Clause 21 agreed to.

[Amendment No. 159 not moved.]

Clause 23 [The Council for the Regulation of Health Care Professionals]:

10.45 p.m.

Baroness Northovermoved Amendment No. 159A: Page 29, line 17, leave out subsection (1) and insert— (1) The bodies referred to in subsection (3) shall in each year submit a report to any joint select committee appointed by the House of Commons and House of Lords to perform the functions prescribed in this Part ("health joint select committee').

The noble Baroness said: In moving Amendment No. 159A, I shall speak to Amendments Nos. 159B, 164A, 164B and 165A to F. Although they appear in a later group, I should also like to speak now to Amendments Nos. 167 to 169 because they are consequential on this group.

The amendments seek to replace the proposed council with a health Joint Select Committee. The Committee on Delegated Powers has advised that limits should be placed on the original powers in the Bill and—as the Minister will shortly propose, which we welcome—that new rules should he the subject of an affirmative resolution by both Houses. We feel, however, that that will leave much that is simply not right about the proposal for an overarching council across the healthcare professions.

Let us return to first principles: what are the Government trying to do, and what should they be doing? Let us hope that their intention is to make the various health professions more accountable and more transparent and to ensure that there is greater co-ordination between those professions. If those are their aims, we fully share them.

In the report on the Bristol Royal Infirmary inquiry, Professor Kennedy recommended the creation of a, Council for the regulation of Healthcare professionals", as an "overarching organisation" responsible for bringing together the various health regulatory bodies.

The functions which the Kennedy report envisaged such a council performing included ensuring that there is an integrated and co-ordinated approach between the various bodies for setting standards; monitoring performance, inspection and validation; acting as a source of guidance and good practice; and promoting common curricula and shared learning across the professions. The Kennedy report further proposed that such a council should have a statutory basis, should report directly to the Department of Health and to Parliament and should have a broadly based membership including representatives of the health professions, the NHS and the general public.

We welcome the proposal that there should be co-ordination across the health professions in the way Kennedy recommends. But what about accountability and transparency? We have a serious problem with the Government's proposals. We are in danger of setting up another quango to second guess what the regulatory bodies are doing without the depth of knowledge and experience that they have. We are in serious danger of bogging down the council in looking at endless complaints against the professions by jaundiced patients even if the council then rules the complaints not worthy of further consideration.

How can we make things accountable and transparent? The medical profession became professionalised in the 19th century. Self-regulation was part of that. Nursing and the other health professions followed. There are strengths and weaknesses in such independent self-regulation. We have to preserve the strengths and tackle the weaknesses. Accountability and transparency are areas of potential weakness.

We propose that those bodies that regulate the health professions should be accountable directly to Parliament. The health bodies should report each year to a Joint Select Committee, appointed by the House of Commons and the House of Lords. They should report in public and that is where they should answer and be scrutinised. The Minister may say that the Government have no power to request the establishment of such a committee. Indeed, when Frank Field in another place made a similar suggestion he was not even able to table such an amendment. The Government, or others could introduce proposals for just such a committee, and the issue could be debated in both Houses which could decide to set up a Joint Select Committee.

This proposal deserves careful and considered scrutiny, not dismissal on some empty pretext. There is already a precedent in the Ecclesiastical Committee which has equal Members of both Houses of Parliament and which has existed since 1919. The proposal is commanding attention. I note that Sir Denis Pereira Gray, writing on behalf of the Academy of Medical Royal Colleges, welcomed the proposal, supporting the notion that both the GMC and the Post-Graduate Medical Education Standards Board should report to Parliament directly and be subject to open parliamentary scrutiny and recommending a new parliamentary committee to achieve this. He argues that doctors want true, open accountability to Parliament, which in itself is quite a change.

The BMA is also broadly supportive of the proposal of a Select Committee of both Houses to whom the regulatory bodies would be accountable. Meanwhile the King's Fund comments that there is a lack of thoughtfulness in the Government's proposed accountability arrangements for the council. The suggestion that professional regulators should be accountable to the new council, and through it to Parliament, raises more questions than it answers. The King's Fund describes this as an "unsatisfactory fudge" and argues that the lack of clarity risks further alienation of professionals who already feel disengaged from the debate and are suspicious of unspecified intentions. If the Government want professionalism to drive quality healthcare they need to attend to their relationship with those professionals. The King's Fund, as the Minister knows very well, cannot be considered to carry a torch for the professions. The warnings should be heeded.

We welcome the idea of co-ordinating professions and making them more transparent and accountable. We differ from the Government in the route that we would take. We would make the professions truly accountable directly to Parliament and not through yet another quango which, in effect, largely answers to government. I beg to move.

Baroness Carnegy of Lour

This part of the Bill applies to the whole of the United Kingdom, including Scotland, and I am pricking up my ears. Of all the groups of amendments in the Bill, those which confirm the setting up of this over-arching body are the ones that the Government could and should abandon.

My understanding of a profession is that it is defined by the fact that it regulates itself; it is not regulated by anybody else. The Government are now intending to regulate the regulatory bodies. The Minister shakes his head, but one only has to look at the amendment to see the power of this over-arching body. It is extremely dangerous.

I hope that the Minister will find time to read the first Reith lecture, which the noble Baroness, Lady O'Neill, gave, and indeed the second one also. The first was all about the dangers of over-regulation and Byzantine arrangements for answerability, the overregulation of professionals and the lack of trust in them. The series is about trust and the noble Baroness made some important points that are directly relevant to the Bill. The noble Lord, Lord Hunt, should think very hard about this. It is a dangerous arrangement.

Baroness Finlay of Llandaff

I rise to support Amendment No. 159A and speak also to the amendments which stand in my name.

In relation to the proposal for a Select Committee, although it may be repetitious I must reiterate the need for transparency, independence from any kind of political pressure on the regulatory bodies and direct accountability to Parliament. In his excellent report on the tragic cases in Bristol, Kennedy highlighted the need for liaison between the different professional regulatory bodies. That is different from the way the proposal stands in the Bill at the moment.

In a helpful answer to me earlier in response to Amendment No. 114A, the Minister made clear that it was not in the framework of this Committee to call for the establishment of a Select Committee. Will it be possible to have a separate debate outside this Committee, in the House, to establish whether such a Select Committee could be set up

I agree with the Government's intentions in subsection (2). They are all general principles required to ensure teamwork functions at the highest possible level. Such teamwork functions must not be the lowest common denominator and there must be equity in decision making, discipline and conduct where needed. However, I seek reassurance from the Government that the healthcare professions will not be forced together under the proposed council and the fundamentally different areas of knowledge, skills and competency are recognised as crucial points of interplay of all those within a clinical team.

There is a need for independence of the individual professions. That is how innovation occurs. Clear examples have been with revalidation where the nurses have led on continuous professional development and now the General Medical Council is leading on revalidation.

Amendment No. 165 is compatible with Amendments Nos. 165YA and 165ZA which stand in my name. I speak to them as a doctor registered with the General Medical Council and as president of the Chartered Society of Physiotherapy. Let me explain why the regulatory bodies must remain directly accountable to Parliament. This regulation is a reserve power under devolution. NHS services are evolving differently in different parts of the UK and the demands on the professions may well vary in the four different countries of the United Kingdom.

It is noteworthy that concern over the establishment of such a council has come from all of the regulators, including the new Nursing and Midwifery Council and the Health Professions Council. This concern is not from an old guard, nor is it reactionary. It is from the chairman of the new body. The GMC has proposed and is pursuing radical reforms to introduce revalidation for doctors, to have a smaller and more effective council, dropping from the current 104 to 35 members and to increase lay membership from 25 to 40 per cent. It also proposes radically to reform fitness-to-practice procedures to bring together performance conduct and health issues which are all part of fitness to practice. That will increase transparency and allow the GMC to issue warnings to doctors.

The GMC's document Good Medical Practice is small and easily read and written in plain English. It lays out the contract between doctors, patients and society. It stipulates the practice required for patients to know that they are being treated by safe and competent doctors. Kennedy commends that code in paragraph 45 of his report, which suggests that it should be incorporated into doctors' employment contracts and terms of service.

There is concern that by making the regulatory body subject to directions from the Secretary of State in England, openness and transparency may be threatened and the role of Ministers in the three other countries may be undermined. Whistleblowers from the professions have had the courage to speak out, often at personal risk, to maintain standards in patient care. I know that from my own experience: I have blown the whistle myself and felt extremely vulnerable in doing so. I was glad that the GMC was wholly independent of any government department and anyone funding the health services.

It is a real fear that the healthcare professions will not be truly independent of government and that the goalposts of expectations will be moved. Let us suppose that it is a few months before an election. The polls indicate falls for the Government. Sadly, another disaster happens and healthcare professionals are taken to task by the regulatory bodies, but not struck off. Bereaved relatives, angry and grieving acutely, are desperate for public redress. The press start baying for blood.

We saw exactly that situation in the tragic case of Dr Philip Evans, an excellent GP who had been a personal friend since we were students. He took his own life as a result of unbearably damaging allegations in the local press. How could any government resist the pressure to state that they would re-examine the issues, implying a possible raising of the stakes, even though the decision had been equitable for all the healthcare professions involved and all the evidence had been considered?

An article in the British Medical Journal on medical error by Albert Wu states: although patients are the first and obvious victims of med cal mistakes, doctors are wounded by the same errors; they are the second victims. Nurses, pharmacists and other members of the healthcare team are also susceptible to error and vulnerable to its fallout … They too are victims". Sadly, human fallibility is an inescapable reality.

Amendment No. 173 removes the power of direction completely and is therefore to be supported. I support also Amendment No. 166, although I have reservations about its wording, as it would not be practicable for all the professions as a whole to be consulted, although the professional regulatory body should certainly be consulted.

Amendment No. 172 is important. There may be a request which on examination would not be in the best interests of patients. I should be grateful if the Minister would reassure me that the term "co-operation" as outlined in the Bill means that the regulatory body must listen to, consider carefully and make a reasonable decision on an issue. The amendment ensures that one professional regulatory body can stand out for evidence on what is best for patients, even when that position is against the interests of some of the professions.

The Minister has not yet spoken to Amendments Nos. 174 to 179, but perhaps I may outline some of my concerns because I realise that we are running late. I cannot support these amendments because they represent a compromise position between the Bill as it stands and the maintenance and regulation of the healthcare professions as independent from the government of the day and directly answerable to Parliament, which is the stand that I should like to take. They also do not allow equal recognition of the Ministers of health in Scotland, Wales and Northern Ireland under devolution, as the Secretary of State for England would exert control.

11 p.m.

Earl Howe

Lest the Committee is in any doubt, I should point out that it is my name and not that of an interloper that appears at the head of this amendment. I should like to express my support for the concept of a Joint Select Committee of both Houses.

The chief defect of the council is that, from the standpoint of each individual health regulator, it purports to offer accountability to Parliament at one remove. As the Bill stands, only the council has direct accountability to both Houses of Parliament. That seems an unsatisfactory way to proceed. While under the Bill the council will be able to exercise control over the individual regulators and (if we accept the government amendments) will be accountable to Parliament for any directions that it may issue, what surely matters to Parliament and to us all, at least as much as any differences of opinion between the council and the regulators, is the way that the regulators discharge their functions year in and year out. If accountability to Parliament in this context is to be taken seriously and be truly visible, that accountability should surely take the shortest route. It should also be delivered in a manner that allows for maximum openness, and, if need be, for cross-examination. A Select Committee to which all the regulators would be answerable would provide an ideal vehicle for the process.

All this begs the question of whether there is any need for the powers of direction to be enjoyed by the council for the regulation of healthcare professions. If the regulators report to and are called to account by Parliament directly, then an affirmative resolution, if ever one were required, could be triggered through the mechanism of the Select Committee and its reports. As has been said, it is not for this place or the Bill to establish such a committee; that is a matter for Parliament. However, the Government's views on the proposal will be of some importance. It would be useful at this stage to hear the reactions of the Minister.

As the noble Baroness has included a later group of amendments with this one, perhaps I can speak briefly to Amendment No. 168 which points to a part of Clause 24 that seems to me to sound alarm bells. It appears to give the Government carte blanche at some future date to widen the remit of the council in virtually any way they choose.

As I read it, paragraph (e) of subsection (9) could allow the council to involve itself in every single area of policy and activity with which a "regulatory body" is concerned. The Explanatory Notes make it clear that paragraph (c) could not be used to enlarge the council's powers of direction, which is important; nor, I take it, could it override subsections (3) and (4), which prevent the council from intervening in "fitness to practise" cases. Can the Minister say whether it could enable the council, for example, to assume a wider or more direct role in determining ethical codes of professional practice, or in determining the detailed content of clinical education and training; or, indeed, in deciding who is, or is not, admitted to the register? I believe that we ought to have this part of the clause explained in more detail than we have been given hitherto.

Lord Hunt of Kings Heath

Before I deal with the amendments, perhaps I may tell the noble Baroness, Lady Carnegy of Lour, that I have been most interested in the Reith lectures given by the noble Baroness, Lady O'Neill. I have a great deal of sympathy with some of the points that she has made about the potential for over-regulation. The Government have signed up to the importance of professional self-regulation. However, I ought also to point out that the purpose of self-regulation is not for the greater glory of the profession itself; it is to serve better the public interest. The intention behind the Government's proposals is to strengthen self-regulation in the public interest.

As the noble Baroness, Lady Northover, suggested in her opening remarks, we need to go back to the Bristol inquiry report and to the specific endorsements and comments in recommendations 39 and 40 which stated: a council for the regulation of healthcare professionals should be created to bring together those bodies which regulate healthcare professionals … in effect, this is the body currently referred to in the NHS Plan as the council of healthcare regulators … [it] must ensure that there is an integrated and co-ordinated approach to setting standards, monitoring performance, and inspection and validation. Issues of overlap and of gaps between the various bodies must be addressed and resolved". We accepted Kennedy's recommendation about the council. We published our more detailed proposals and engaged in a consultation exercise. The results of that consultation exercise supported the establishment of a new, more transparent framework for self-regulation which explicitly puts patients' public interest first and provides for greater integration and co-ordination and sharing of good practice between the regulatory bodies.

The existing regulatory bodies have responded to the need for reform; for example, to improve their fitness-to-practise procedures and to modernise and streamline their governance. The value of the council for the regulation of healthcare professions in this climate will be in keeping up the momentum of change and helping it to happen in a co-ordinated way.

Regulatory bodies and consumer groups have welcomed plans to establish the council. We reached an agreement with the regulators on the new council's proposed powers and that was communicated in the press statement issued on 5th March. That also contained statements from the presidents of the General Medical Council and the General Dental Council expressly stating that the new council would preserve parliamentary accountability and the important principle of self-regulation. Sir Graeme Catto, President of the General Medical Council, stated: I am delighted that we have been able to reach an agreement with the Government that maintains the line of direct accountability of the GMC, and the other regulatory bodies, to Parliament. The issue of maintaining our independence from Government has been crucial throughout our discussions and I am delighted that the proposed amendment satisfies these concerns. We have not reached the group of amendments which I shall move which relate specifically to the comments of the president of the General Medical Council. However, in addressing this first group of amendments, it is important to make clear the agreement that has been reached between the Government and the regulatory bodies.

I turn to the group of amendments which are about accountability to Parliament of professional regulatory bodies. Essentially, the core of the amendments would do away with our proposed new council for the regulation of healthcare professionals and propose that many of its functions should be given to a health joint Select Committee if Parliament should so decide to establish such a committee. I shall come to that in a moment. However, I take the opportunity to spell out how the accountability of regulators will work under the Bill. The council will be accountable to Parliament. Schedule 7 of the Bill obliges it to lay a report before Parliament each year. It must also, under the same schedule, provide Parliament with a special report on any matter which Parliament asks it to. It must also lay its accounts before Parliament.

The regulatory bodies have long been accountable to Parliament in the sense that Parliament can ask them to provide evidence to, for example, departmental Select Committees. That has happened on a number of occasions in the past few years. The Bill maintains that accountability to Parliament for the regulatory bodies. What it changes is that in essence it provides Parliament with some assistance in the work of the new council. Reports from the council will allow Parliament to see more readily how the world of regulation is developing, what is going well and, if necessary, what is going less well and requires closer scrutiny.

I say to the noble Baroness, Lady Northover, that the amendments that she specifically puts forward are somewhat unusual. They seek to specify the way in which Parliament could exercise its powers to hold the regulations to account and, in essence, to appoint a joint Select Committee to take on the functions of the proposed council.

Amendments Nos. 165E and 165F appear to be particularly unusual. Their effect would be to turn the tables so that the Secretary of State, the National Assembly for Wales, the Department for Health in Northern Ireland and the Scottish Minister, could ask Parliament for advice; and it would be obliged to comply. That surely cannot be right. The noble Baroness forecast that I would say this, and I shall: it is for Parliament to decide whether it wants a joint health Select Committee. I can have no views about the rights or wrongs of this particular means of improving accountability. That is a matter for Parliament and not the Government.

I am concerned to see that regulators should he more effectively accountable to Parliament. I believe that the proposed council will, as I said earlier, enhance accountability to Parliament by helping it assess the performance of the regulatory bodies.

I do not think that the parallel with the Ecclesiastical Committee helps us. I never thought that I would discuss that committee on health matters. But my understanding is that its role is in the passage of Church of England primary legislation. That is very different from this new council which exists to promote best practice in regulation, overseeing the work of regulated bodies and helping Parliament hold them to account. Unlike the Ecclesiastical Committee, the council and the regulated bodies do not have powers to intervene in the making or amending of primary legislation. I would be happy to write extensively to the noble Baroness about the Ecclesiastical Committee if she would like me to.

Amendment No. 167—and indeed I think that I can now refer to Amendment No. 168 as well as Amendment No. 169—would take away the ability to modify the scope and functions of the council by a Section 60 order. I take the substantive point of concern of both the noble Baroness and the noble Earl about this matter—a feeling that the Government might be allowed to use this power to build up the council's power over time over the regulated bodies. But I would remind Members of the Committee that Section 60 is limited by some stringent safeguards provided in Schedule 3 of the Health Act 1999.

As a result of Schedule 3, as well as a stringent consultation and parliamentary approval process, the Government cannot abolish an existing regulatory body; they cannot impose a lay majority on an existing council; they cannot remove a function conferred c n the Privy Council; they cannot remove core functions from existing regulatory bodies, such as keeping the register—I think that this is the answer to the noble Earl, Lord Howe—determining standards of education and training for admission to the profession; and administering procedures relating to misconduct, fitness to practise and similar matters.

It is not as though future changes to the council provided for here could diminish the independence of the regulatory bodies. We have also added a new safeguard in Clause 24(10) that an order about the council may not give the Secretary of State more powers over that council. I think that that preserves the independence of professional self-regulation fairly comprehensively.

Amendments Nos. 167 and 169 stop us modifying the council in any way without a new Bill. We could not clarify some of its functions. We could not remove a regulator from its scope. Although any new regulators set up would automatically come under its responsibilities under Clause 23(3)(j). We could not at some future date decide that the council's field of activity was too wide and remove a subject, say education, from its scope.

Amendment No. 168 removes the power in a future Section 60 order to take a regulatory body which had a mix of regulatory and other functions. The Royal Pharmaceutical Society of Great Britain and the Pharmaceutical Society of Northern Ireland are the current examples. We could not alter the mix of its functions which fell within the council's scope. It is logical to include that flexibility, although at present we have no plans to use it. By way of conclusion, I return to our great debates about Section 60, which was created to allow more flexibility in the workings of professional regulation. So far, we have introduced several orders covering medicine, dentistry, nursing and the allied health professions, all of which have benefited from those provisions. Given all the caveats and safeguards that I have mentioned, it would surely be odd if the council that brings all the professions together were to be the only one over which there could be no such flexibility.

11.15 p.m.

Baroness Northover

I very much regret the fact that we have reached this major part of the Bill for debate at this hour. I thank the noble Baronesses, Lady Carnegy and Lady Finlay, and the noble Earl, Lord Howe—not "the Eark Howe" described on the Marshalled List—for their careful exposition of the issues.

Healthcare professions have self-regulated since at least 1858. Precisely how we move forward to a more transparent and accountable system in the 21st century should not be decided at the tail end of the agenda late at night like this. I understand that the Minister may well feel demob happy as he nears the conclusion of the Bill's consideration in Committee, but I trust that on Report we shall have more thorough consideration of the issues involved. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 159B not moved.]

Earl Howemoved Amendment No. 160: Page 29, line 27, leave out from beginning to end of line 30.

The noble Earl said: We come now to a significant group of amendments relating to the proposed council for the regulation of healthcare professionals. In moving the amendment, I shall speak also to Amendments Nos. 165, 166, 172 and 173.

We all know the origins of this part of the Bill. In his report on the Bristol Royal Infirmary, Professor Sir Ian Kennedy drew attention to the need for an independent body to oversee the activities of the various statutory regulators of the healthcare professions. In response, the council for the regulation of healthcare professionals is to be set up, with an explicit remit to promote the interests of patients and the public in the way that the regulatory bodies carry out their work. I have no problem with that general concept—indeed, I welcome it in so far as it provides a formalised means of promoting good practice and a consistent approach among all the regulators.

When the Bill was first published—indeed, right up until Second Reading in this House—the proposals for the new council excited no little degree of concern. The main concern related to the council's powers. Besides having the worthy and uncontroversial function of promoting best practice and co-operation between the regulators, it was also being given power to direct any or all of the regulators and, furthermore, to do so without reference to Parliament.

Two cardinal principles are thereby undermined: the accountability of each regulator to Parliament; and the regulator's independence from government. Since Second Reading, an agreement has been reached between the Government and the regulatory bodies that addresses at least part of those concerns. The Minister has already referred to that agreement. The amendments tabled by the Government. to which the Minister will no doubt shortly be speaking, embody the substance of that agreement.

The government amendments provide that any direction made by the council would come into force from a date specified by order and that such an order would be subject to affirmative resolution in both Houses of Parliament. Those provisions reflect the recommendations of your Lordships' Select Committee on Delegated Powers and Regulatory Reform. I am grateful to the Minister for so helpfully writing to me on the matter. I acknowledge that the amendments have been welcomed by the regulatory bodies.

If I am able to give only one-and-a-half cheers to the amendments, not three, that is because they do not go to the root of the concerns that I and many others have voiced. What do we mean by the term "profession"? The essence of a profession is its expertise and its standards. For many years, we have, in this country, had a mechanism for defining and overseeing professional expertise and standards. That mechanism—in the case of the medical profession, it is embodied in the GMC—is characterised by a professional majority in decision-making and by its independence from government. It is the profession, not the government, that decides what constitutes proper standards of practice, training and ethical behaviour. That is as it should be. Governments are in no position to second guess the standards that the professions set themselves. The day that that happens is the day on which the professions will be devalued; their ethos will no longer be their own.

Ultimately, of course, each profession and each professional regulator derives its authority from Parliament. However, Parliament allows them to operate independently. That independence is crucial in the setting of standards. The standards of behaviour and integrity expected of a professional person are higher than for other types of occupation and cover, for instance, sexual mores and the duty to maintain strict confidentiality. We cannot expect a professional to operate to an elevated code of conduct if, at the same time, we allow non-professionals to dictate to him how he should practise. Professional expertise and standards are inextricably intertwined.

What are we to say about the Bill through which an overarching council with a lay chairman and a lay majority is being given powers to direct the professional regulatory bodies? We must examine what the Bill says. Clause 24(2)(c) says that the council may, recommend to a regulatory body changes to the way in which it performs any of its functions".

I ask the Minister whether that includes ethical guidance and standards. If it does, that is territory we enter at our extreme peril. Taking that in conjunction with provisions in Clause 25, a regulator has a legal duty to co-operate with the council in the exercise of its functions. In addition, the council has a power to direct the regulatory body to change its rules when it considers that it would be desirable to do so for the protection of members of the public. The regulator must comply.

Whether or not such regulations are subject to affirmative resolution in Parliament, I am deeply troubled that I am being asked to approve a situation in which lay people have power to direct the professional majority and the Privy Council-appointed lay minority of the GMC, the GDC or other regulators. Such lay people will not have been elected and may have no experience of any of the health professions or of the performance or conduct committees that hear allegations against health professionals. They will not obviously have a better sense of the public interest than the lay members of a regulatory body.

I do not know what I would think if I had been appointed by the Privy Council to serve on the GMC and had served for several years only to be informed that the GMC must comply with an instruction issued by a small number of inexperienced lay people, most of them political appointees of one kind or another. I think I would feel demeaned and also that the medical profession was being demeaned.

Can the Minister clarify whether the duty of a regulator to comply with a direction from the council conflicts with the Trustee Acts? The GMC is a charity; its trustees have a duty to act in what they perceive to be the interests of their charity. How can they legitimately be required to do something they consider wrong just because 10 people in another body happen to disagree?

If we are looking for a way of improving the accountability to Parliament of the regulatory bodies, then a mechanism such as a Joint Select Committee would provide that. The Minister will have gathered that I regard the power of direction contained in Clause 25 to be misconceived and likely to lead to serious difficulties. But difficulties are also likely to arise in interpreting some of the wording elsewhere. In Clause 23(2)(c) and (d), dealing with the functions of the council, exactly what are we to understand by the words "encourage" and "promote co-operation"? In precisely what ways will this be done?

What are the implications of those words for the future of uni-professional regulation? Can the Minister say whether the Government are committed to uni-professional regulation or is there an intention, over the longer term, to try to merge the regulation of the various healthcare professionals, not necessarily in a formal way but perhaps under a more de facto arrangement?

If we look on a broader level at what the council will be charged to do, it is not immediately easy to see how a body tasked with policy making and promoting co-operation between the professional regulators at one and the same time be effective wielding a stick as a regulator in its own right. Simultaneously it will be a facilitator trying to bring bodies together and a prosecutor, judge and jury on any actions of the professional bodies of which it does not approve. That is a potentially uncomfortable combination of roles and, I should have thought, a virtually automatic recipe for tension. I am therefore doubtful about flow effective the council can hope to be in any of its stated roles.

Other features also puzzle me. Why is it that when the Secretary of State asks the council for advice on any matter connected with a healthcare profession, as he may under the terms of Clause 24(7), there is absolutely no requirement for the council to consult or seek advice from the profession concerned? I wonder what kind of advice the Secretary of State is likely to receive without such consultation. Furthermore, in Clause 25(1) there is a duty placed on each regulatory body in the exercise of its functions to "co-operate" with the council. Exactly what does that mean? What would a regulatory body have to do to fail in this duty and who would decide whether it had done so?

I am sorry to have spoken at more length than usual, in particular at this time of night, but it has been necessary to do so with such a large grouping of amendments. I beg to move

Lord Hunt of Kings Heath

I want to reassure the noble Earl, Lord Howe, that I think his fears are overstated. Frankly, I do not believe that they are shared by the regulatory bodies themselves, as I intimated from the extracts of the statement made at the beginning of March by the regulatory bodies, in particular the presidents of the GMC and the GDC.

I share the view that promoting the best interests of patients through securing common principles of regulation and the adoption of best practice is the main goal. To achieve that, we are working with the regulatory bodies to strengthen the framework of professional self-regulation so that it explicitly puts patients' interests first, and provides for greater integration, co-ordination and the sharing of good practice between the regulators.

I understand the concerns raised by the noble Earl about how the new council will discharge its responsibilities. I have no doubt whatever that the new council will be able to achieve its goals in a light-touch way through persuasion, agreement and co-operation with the regulatory bodies on any necessary reform.

However, I also believe that it is important for the council to have the necessary tools to ensure that it can do its job properly, as advocated by Professor Kennedy, in order to overcome obstacles to reform which could arise. Furthermore, the amendments that I shall speak to shortly and other amendments that have been tabled during the passage of the Bill, which ensure the council's main powers are subject to parliamentary approval, do provide the necessary safeguards in relation to the power of the council to direct the other regulatory bodies.

I re-emphasise the enthusiasm with which the regulating bodies generally have welcomed plans to establish the council. One cannot ignore the fact that many of those regulatory bodies have issued statements which make it clear that they welcome the approach the Government have taken.

11.30 p.m.

Baroness Carnegy of Lour

I really cannot sit here while the noble Lord makes his speech. Does he not realise that in accepting the Kennedy report—which they did not have to do—they were doing so in an atmosphere of the "something must be done" syndrome? In accepting the report, the Government made it very difficult indeed for the regulatory bodies to do anything other than welcome it. What would the public have thought if they had refused? It is for Parliament to look at the democratic effect of what the Government are saying. To argue that the regulatory bodies and the professions are quite happy is simply not good enough.

My noble friend made an extremely important speech, which I hope the Minister will read with great care. He put all the points very clearly. The Government will have to be extremely careful. They are on very tricky ground indeed.

Lord Hunt of Kings Heath

I do not accept that point at all. The fact is that we have had long and detailed discussions with all the regulatory bodies over the past few months. We have come to an agreement over the use of affirmative resolutions in relation to the discharge of the power of direction which is to be given to the new council. In a statement—not at the height of the publication of the Kennedy report but only a few weeks ago—the regulatory bodies themselves have said that they are agreeable to what is being proposed. One cannot discount the views being expressed by the regulatory bodies.

Baroness Finlay of Llandaff

I thank the Minister for giving way. While he is on the point, can he confirm that an affirmative resolution of the power of direction must not merely be laid before Parliament but must be debated and will be subject to a free vote?

Lord Hunt of Kings Heath

Clearly, if it is an affirmative resolution it will have to be debated. I dare not talk about free votes with the Government Chief Whip in his place. That is not a matter for me. However, as my noble friend has pointed out, there is always the prospect of a free vote for Cross-Benchers.

I find it difficult to support Amendment No. 160. It would give a less proactive role to the council to encourage co-operation between the regulatory bodies and to conform to good principles of regulation. The amendment would only hinder the council in its constructive activities of ensuring a consistency of approach between the different regulatory bodies. That again was surely a point made by Kennedy. It was a part of his rationale for establishing the council. It was also, in his view, a reason for the council to work closely with other quality-related bodies.

The amendment would make it harder for the council, should it find it necessary, to promote co-operation between, for example, the regulatory body and the quality assurance agency in regard to the fitness for purpose of educational courses and qualifications; or between all of the regulatory bodies and, for example, the General Social Care Council; or between the GMC, the GDC and the National Clinical Assessment Authority in regard to the thresholds at which poor performance by a doctor or dentist must lead to referral to his or her regulatory body.

Of course these dialogues could take place without the council's encouragement—some already do at the moment—but if they were breaking down, the amendment would make it hard for the council to use its good offices to salvage them. The amendment would also delete the council's role in encouraging regulatory bodies to conform with the principles of good, professional self-regulation but that is just what we want the council to do. I do not believe that the regulatory bodies have any problems with that concept.

Amendment No. 165 deletes one of the examples of the council's powers from Clause 24(2). It takes away the words recommend to a regulatory body changes to the way in which it performs any of its functions". We want the council to be able to recommend changes to a regulator. Surely that flows naturally from the other functions of reporting on performance and, where appropriate, comparing the regulatory bodies mentioned in Clause 24(2). That is also a necessary way of carrying out the functions bestowed on the council in Clause 23. The purpose of the council is to provide energy for improvement. If we agree that—as Clause 23 states—the council should promote best practice, for anyone not already following best practice surely that amounts to a recommendation for change.

The council's working methods are for it to decide. It might decide to invite regulators to pool their experience on an issue such as using the findings of overseas regulatory bodies. That might show that one or two bodies with more experience had better systems than the others. The council might publish guidance suggesting the advantages of their approach. Surely that should be encouraged.

Amendments Nos. 165YA and 165ZA address the same subsection. Instead of deleting it, they would make minor changes to the wording. They would not alter the effect of the Bill. I do not believe that it is necessary to spell out that any changes recommended would need to be improvements. The council would not suggest changes unless it believed that to be the case.

Amendment No. 166 requires the council to consult a profession on which a Minister has asked its advice before giving that advice. I agree that is a reasonable way to expect the council to proceed but I do not think that needs to be written into the Bill. There may be situations where it would be appropriate for the council to consult the professions before giving advice. Equally, we can envisage situations where the council would consult regulatory bodies frequently through consultations, meetings and documents in the legitimate way that it goes about its business. There may be a situation where Ministers need information about a profession to which the council already has access. Some of that information may be fairly routine. If the council had to consult before it could give such advice, that would surely cause unnecessary delay.

I listened with great interest to the noble Earl's comments about the dangers, as he saw them, of a lay majority on the council but it will contain also nine members appointed by the regulatory bodies who will have expertise of particular health professions. They will be in a good position to give advice on the information that should be provided directly to Ministers and on the issues that may need appropriate consultation with the regulatory body. It would be inflexible if such processes needed to be prescribed in the Bill—particularly since one is talking about giving advice.

I understand that the purpose of Amendment No. 172 is to seek reassurance that the duty to co-operate is not absolute. When a comparable amendment was debated in Committee in another place, my right honourable friend the Minister of State for Health, Mr. John Hutton, gave an assurance that in approaching any decision, the council would have to act reasonably and on the basis of evidence that would support its determination, which shows that there are sufficient safeguards in the system.

I can also offer the reassurance that the duty to co-operate is not absolute. If any court is ever called upon to consider whether a regulatory body was in default, I expect that reasonableness would be very much part of the courts determination. In essence, that is the answer to the noble Earl. If a regulator refused to comply with a direction made under the clause, it would be open to the council to seek, by way of judicial review, an appropriate declaration or order from the courts. Then it would be up to the courts to make such a decision.

Turning to Amendment No. 173, Clause 25 contemplates a situation where the council has identified a problem with the way in which one regulatory body's rules operate. There will have been discussions, perhaps extended ones, but no meeting of minds. If this is about some minor matter, it can clearly be allowed to rest there, but if the council has concluded that change is necessary for the protection of members of the public it needs to have some means to allow it to carry on its work. That is why we it must retain the power of the council to impose a change, although we envisage this rarely if ever being used. My right honourable friend the Minister for Health also gave such assurances in Committee in another place. Amendment No. 173 would weaken the council and its ability to work in the interest of the public.

I repeat that there have been statements of support from regulators. For example, the UKCC of nurses, midwives and health visitors welcomes the suggested accountability arrangements. The chief executive of the UKCC said last August: Being accountable to Parliament through the new council seems sensible and simple and ensures independence from the government of the day". I have other quotations with which I shall not trouble the Committee at this late hour.

I now turn to the government amendments, which are important to our debate. Amendments Nos. 174 to 179 and 189 to 194 ensure that before the council could use its reserve power to direct a regulator to change its rules, the direction would need to be approved by affirmative resolution of both Houses of Parliament.

The council should, as a last resort, be able to require a regulator to change its rules in the public interest provided that both Houses of Parliament agree. Surely, adopting this approach preserves the principle that regulators are accountable to Parliament.

The drafting is a little complex for two reasons. The Bill puts all the provisions relating to orders together in Clause 36. Secondly, the amendments have to cover all eventualities, including directions which vary or revoke earlier directions. I hasten to add that the number of words used is not a guide to the frequency with which this power is likely to be used.

The key amendments are Amendments Nos. 176 and 191. Together, these provide that a direction shill come into force on a date specificed by the Secretary of State by order, such draft order being approved by resolution of each House. That is the change which the Select Committee on Delegated Powers and Regulatory Reform recommended in its report on the Bill. I am grateful to the committee for its report. As I have said, the changes it suggested have won the approval of the professional regulatory bodies, leading to a satisfactory conclusion.

I do not under-estimate the original concerns of some of the regulatory bodies. I take in good faith the criticisms that the noble Earl, Lord Howe, has brought together. I strongly believe in professional self-regulation. I believe that the new council will enhance that self-regulation, and that the amendments that I now propose will ensure the primacy of Parliament in having to agree through the affirmative resolution procedure any use of such a direction.

A balance must always be held between professional self-regulation, parliamentary accountabilty and the public interest. I believe that, taken together with these amendments, we have got the balance right.

Earl Howe

If parliamentary approval is given to an order that embodies a direction given by the council, why is it necessary to include the words "must comply" in Clause 25(4). If there is an affirmative resolution in Parliament, surely the regulatory body is bound to comply anyway. I wonder whether that part of the clause could be re-examined.

Lord Hunt of Kings Heath

I am happy to look at the technical wording. However, as I understand it, that was certainly the intent before we placed the amendments before the Committee; namely, if the regulator refused to comply with a direction made by the council, it would be open to the council to seek, by way of judicial review, an appropriate declaration or order from the court. Of course, I fully accept that, if Parliament had determined through an affirmative resolution that a direction should be made, it would be highly unusual for one of the regulatory bodies to say that it was not going to apply it. I will, however, look at the wording to ensure that it is consistent with the amendment, and I am grateful to the noble Earl for raising that point.

11.45 p.m.

Earl Howe

I thank the Minister for that reply. I shall make a few concluding comments, if I may. He is, of course, perfectly right to say that the regulatory bodies do not share—or, at least, have not expressed—the same concerns as I have. They have welcomed the Government's amendments, as do I. The amendments are a step in the right direction, and I do not wish to take anything away from that. Wider issues, however, remain unresolved, and they are the ones that I have tried to articulate.

The fact remains, that I fear, that the powers of direction proposed for the council in Clause 25 are potentially wide. As the Royal Pharmaceutical Society pointed out in a paper that it sent to me, no real limits are specified on the use of these powers, on how frequently they can be exercised, or on the circumstances in which they can be deployed. I do not feel any clearer on those points, having listened to the Minister's reply, and we need to be clear about them if we are to understand how the regulatory duties and responsibilities of the professional regulators are to be affected and influenced by the new council.

I do not think that the Minister answered my question about the Trustee Acts, or my question about whether the functions referred to in Clause 24(2)(c) could include ethical guidance and standards.

Lord Hunt of Kings Heath

I shall be happy to respond in writing to the noble Earl, but my understanding is that the council will operate in respect of all functions of the regulatory bodies, although the pharmacy bodies will be an exception because they serve as representative bodies as well as professional self-regulators. So, in relation to the power of direction under Clause 25, what the council will be able to do will depend entirely on what powers the regulatory bodies have to make rules, and on whether directing a change in rules would be for the protection of the public.

Earl Howe

I am grateful to the Minister for that. As I said, the amendments tabled by the Government are welcome as additional safeguards against any possible maverick direction by the council. We need to be honest with ourselves, however. When all is said and done, the power of direction that is being conferred on the council brings to an end the concept of professional self-regulation. For me and for many others, that is a serious and very regrettable development. This has, however, been a useful exchange of views and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 23 agreed to.

Schedule 7 [The Council for the Regulation of Health Care Professionals]:

Baroness Northovermoved Amendment No. 161: Page 88, line 34, leave out "regulatory body" and insert "of the regulatory bodies referred to in section 23(3)(a) to (h)(i), and three members appointed by the regulatory body referred to in section 23(3)(h)(ii) or the successor regulatory body (within the meaning of Schedule 3 to the Health Act 1999 (c. 8)) to the Council for Professions Supplementary to Medicine (the Health Professions Council) established by order in Council under section 60 of that Act

The noble Baroness said: I shall speak to Amendments Nos. 161 and 162. As currently proposed, the council will give equal weight to all existing regulatory bodies, regardless of their different sizes, and of whether the body in question regulates one, two or 12 separate professions. No doubt, this was the simplest way that the Department of Health could come up with, given the minefield that it was entering. At present, for example, the Bill allows for the appointment of only one representative on the council for the 12 allied health professions regulated by the Council for Professions Supplementary to Medicine. The allied health professions will, therefore, be regulated as though they were a single profession, despite the fact that they are 12 professions with little in common.

Although we recognise that the council could not reflect all the differing proportions of the various bodies, some recognition of this fact is surely due. The Bill allows the General Osteopathic Council and the General Chiropractic Council each to have one person on the over-arching council, despite the fact that the former represents only 3,000 registrants, and the latter only 1,600, while the allied health professions' organisation, which represents 111,000, would also have only one. That does not seem right. The situation is an historical accident. When new bodies are set up, they should not simply enshrine historical accidents but should look at things afresh. After all, the NHS, which was set up with the historical accident of having over-provision of hospitals in one place and under-provision in another, has spent the past half century trying to sort that one out. We should not let historical accident dictate in such cases. The body needs to be able to take with it all its constituent parts if it is to work. I suggest that the issue should be addressed again.

On Amendment No. 162, the Bill establishes an important principle, to which the noble Earl, Lord Howe, has already referred. There is a lay majority on the council. We do not feel that a lay majority is the answer to the problems that the Government are trying to tackle. We would have the professions answerable directly to Parliament. That is appropriate. Meanwhile, the professions themselves are surely best placed to regulate their members, provided they are then answerable to Parliament. I beg to move.

Earl Howe

In the interests of time, I have decided not to speak to Amendments Nos. 163 and 164 and do not intend to move them. However, I shall say a few words about Amendment No. 162, which seems to get to the heart of the awkwardness that characterises the council's intended role. If there are points of agreement among all sides in the debate, they are that we want a council that is independent in its operation and is informed and effective in holding the regulatory bodies to account. The virtue of the Government's formula whereby the appointees of the regulatory bodies are in the minority is that no credible body that formally holds the regulators to account can be controlled by representatives of those regulators. To that extent, I venture to part company with the noble Baroness, Lady Northover.

On the other hand, the noble Baroness has made some very powerful points. How can we call the council independent when it will be controlled by individuals who owe their appointment to Ministers or to one of the regional assemblies? Were it not for the power of direction, I would have much less difficulty with the Government's formula, but I have come to think that there is no perfect answer to the conundrum. We need both the informed input of those who represent the regulatory bodies and the detached common sense of lay appointees, who will be there above all to represent the interests of patients and the public.

Perhaps the ideal formula would be for neither group to be able to force a majority. That would be a good discipline. If the council is to be worth anything, it should speak with a united voice and a voice of authority. It should consist—or be perceived as consisting—of two separate camps. If neither group was in the majority, all appointees would be bound to try to co-operate and work together by consensus. I wish that I had tabled an amendment to that effect. Perhaps the Minister would care to comment on the idea.

Lord Hunt of Kings Heath

The noble Baroness, Lady Northover, suggested that we were in a bit of a minefield on issues of representation of various regulatory bodies. She is right that the representation has historical roots. However, reopening that historic basis would he likely to lead to great problems between the different professions and regulatory bodies. The regulatory bodies have accepted that this is a sensible way forward.

We must also bear in mind that the health profession members of the council are there to perform a collective function. I revert to our earlier discussion on patients forums electing members to the boards of NHS trusts—which may be the route by which some members arrive at the table, and to which they will bring a great deal of public and patient experience. However, once they get to the table, they will have a collective responsibility. Surely the same applies to the health professional members of the council.

I think that rather than being seen to represent one sectional interest, the health profession members will bring an expertise in professional regulation in general. The council's work will not usually focus on a single profession but will instead consider the needs and problems applying to all professions. Where necessary, the council will be able to publish drafts for consultation, hold ad hoc meetings with interested parties and find other ways of obtaining the input of individual professions.

I tell the noble Baroness, Lady Northover, that the problem with accepting such an amendment is that it would risk damaging the spirit of co-operation that the regulated bodies have shown in welcoming the new council. Moreover, on a strict numbers case, it is probably the nurses and doctors who have a stronger argument than anyone. One thing that has struck me in all the discussions on changes to professional regulation which we have had with the professions in the past two or three years is that they have all accepted the need for a hit of give and take. In the interests of getting progress, movement and co-ordination, people have accepted that there will be discrepancies in relation to the membership of each council. I believe that the current proposal is the best way forward and that we would be opening a can of worms by reopening the whole question of representation and numbers. Ultimately, that would not lead to any improvement.

I also accept that Amendment No. 162 takes us back to our discussion on the previous group of amendments. This amendment would replace a majority of one for those representing the public with a majority for the professions. My argument has always been that we are trying to strike a balance between the necessity of professional self-regulation, the wider public interest and appropriate accountability to Parliament. The Government contend that, with professional self-regulation, the professions will have a majority on the regulated bodies. We have also already agreed the use of the affirmative resolution in terms of any directions made by the council. I think that there is a persuasive argument in favour of a narrow majority of one on the council in favour of the lay element.

I should also point out that those appointed will be chosen by the NHS Appointments Commission alongside the devolved administrations, who will appoint one member each. I also make it clear that the type of people whom we expect the Appointments Commission to choose are those with experience who will be able to speak out for the patient and public interest in relation to the health service. We certainly do not expect the commission to choose, as was unkindly suggested, government stooges. The whole purpose of creating effective self-regulation is to ensure that the public interest is safeguarded. That is the case for a majority of one for lay people, who I believe will be of the highest calibre.

I tell the noble Earl, Lord Howe, that the regulated bodies themselves have not questioned being put in a minority of one on the council. Their concern was about the majority being appointed directly by the Government. However, that matter has already been dealt with by amendments in another place.

Baroness Northover

I thank the Minister for that reply, and I am only too well aware that there are various cans of worms in this particular sphere. I shall certainly examine his comments. I should emphasise, however, that underlying all our amendments is our public interest argument of accountability to Parliament. Some of the changes we suggest in some of our amendments have to be posited on that basis. For the moment, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 162 to 164 not moved.]

Schedule 7 agreed to.

Clause 24 [Powers and duties of the Council: general]

[Amendments Nos. 164A to 169 not moved.]

Earl Howemoved Amendment No. 170: Page 31, line 41, leave out from second "profession" to "which" in line 42.

The noble Lord said: Amendment No. 170 draws attention to what is on the face of things a drafting oddity. Clause 24(12) states that 'health care profession'" means a profession (whether or not regulated by or by virtue of any enactment) which is concerned (wholly or partly) with the physical or mental health of individuals".

That is an extraordinarily wide compass. It would be hard to think of any profession which is not at some time, at least in part, concerned with the physical or mental health of individuals. Architects build hospitals; bankers lend money to build hospitals; solicitors act for the sick. Even vets are concerned with the physical and mental health of individuals—namely, themselves.

The Government's intentions may be clear, but I ask whether there might not be a tighter form of words which encapsulates more precisely the territory that the new council will occupy. The existing professions that are to come under the jurisdiction of the new council can surely be listed by reference to the regulatory bodies that govern them. If in the indefinite future there are to be other professions admitted under the same umbrella—there may well be, of course—we already have an order-making power in the clause which will ensure at least some parliamentary control over what professions can be added to the list.

I do not understand why in subsection (12) there needs to be such a catch-all type of definition which appears to open the door unnecessarily wide. I beg to move.

Lord Hunt of Kings Heath

I hope that I can clear up the matter for the noble Earl, Lord Howe. The definition was used in the Health Act 1999, having in view the profession of psychology whose leaders wanted the door to be open to statutory regulation, although most do not practise in the health sector.

The clause uses the definition where Ministers, including the devolved Administrations, can seek the council's advice on any matter connected with a healthcare profession. If the definition is narrower, the list of professions on which the council can advise us is reduced. The problem with that is that the narrow definition would exclude many groups who aspire to statutory regulation in the next few years. As the noble Earl will recall, about a year or so ago we debated with Lord Alderdice in his psychotherapy Bill. There are other examples including psychologists, psychotherapists, operating department practitioners, perfusionists and physiological measurement technicians, all of whom have expressed the wish to be regulated at some time in the future.

There is nothing more sinister than that. The wide definition is simply to ensure that, if at any time in the future we wished to seek advice on professions to be regulated, it would be straightforward to do so.

Earl Howe

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

[Amendment No. 171 not moved.]

Clause 24 agreed to.

Clause 25 [Regulatory bodies and the Council]:

[Amendments Nos. 172 and 173 not moved.]

Lord Hunt of Kings Heathmoved Amendment No. 174: Page 32, line 2, leave out "direct" and insert "give directions requiring

On Question, amendment agreed to.

Lord Hunt of Kings Heathmoved Amendments Nos. 175 to 179: Page 32, line 5, leave out "so direct" and insert "give such directions Page 32, line 7, at end insert— (3A) The Council must send a copy of any such directions to the relevant authority. (3B) The relevant authority is the Secretary of State or, if the regulatory body in question is the Pharmaceutical Society of Northern Ireland, the Department of Health, Social Services and Public Safety there. (3C) The directions do not come into force until the date specified in an order made by the relevant authority. (3D) The Secretary of State must lay before both Houses of Parliament, or (as the case may be) the Department of Health, Social Services and Public Safety must lay before the Northern Ireland Assembly, a draft of an order—

1. (a) setting out any directions he or it receives pursuant to subsection (3A), and
2. (b) specifying the date on which the directions are to come into force.

(3E) Subsections (3A) to (3D) apply also to—

1. (a) directions varying earlier directions, and
2. (b) directions revoking earlier directions, and given after—

1. (i) both Houses of Parliament have resolved to approve the draft order specifying the date on which the earlier directions are to come into force, or (as the case may be)
2. (ii) the Northern Ireland Assembly has done so.

(3F) Subsections (3A) and (3B) apply also to directions—

1. (a) revoking earlier directions, but
2. (b) which do not fall within subsection (3E)(b),

but subsections (3C) and (3D) do not apply to such directions. (3G) If the Council gives directions which fall within subsection (3F), the earlier directions which those directions revoke shall be treated as if subsections (3C) and (3D) had never applied to them, and as never in force. Page 32, line 8, at end insert "which have come into force and have not been revoked Page 32, line 14, leave out "directions given" and insert "the giving of directions Page 32, line 16, leave out "it directions" and insert "directions relating to it

The noble Lord said: With the leave of the Committee I shall move Amendments Nos. 175 to 179 en bloc. I beg to move.

On Question, amendments agreed to.

Baroness Northovermoved Amendment No. 179A: Page 32, line 19, at end insert— (9) Cases brought against clinicians will continue to be heard using the criminal burden of proof.

The noble Baroness said: We seek assurance through Amendment No. 179A that the level of proof expected to be obtained in cases against health professionals will remain that of criminal rather than civil proof. As Members of the Committee will know, in civil cases the claimant has to prove his or her case on the balance of probabilities. In a criminal case the prosecution has to prove its case beyond reasonable doubt.

Given the importance of these kinds of cases, the criminal standard is surely appropriate if a person's right to practise is to be removed. That does not remove the right to apply sanctions to people for misconduct found on the balance of probabilities. I trust the Minister will be able to reassure me on this point. I beg to move.

Lord Filkin

Amendment No. 179A is designed to prevent a direction by the council from requiring a regulator to change its rules to move away from the criminal standard of proof; that is, the need to prove, for example, misconduct beyond reasonable doubt before taking action affecting someone's registration.

In fact the Bill does not alter the burden of proof; it is silent on that. Nor does legislation specify what standard should be adopted by regulatory bodies in disciplinary cases. That is a matter of case law rather than statute.

I appreciate that some professionals might be concerned at the possibility of a change to the burden of proof. But that is not something the Government are seeking and I have no reason to believe that it will be something the new council raises. Does that imply, as the amendment seems to, that we should use the Bill to make it impossible for a regulator ever to change the burden of proof? I suggest not. For example, the GMC's current proposals to reform its fitness to practise procedures would allow it to close a case with a formal warning or advice to a registrant rather than deregistration based on a finding on the balance of probabilities, as would be the case in many other situations where a case of misconduct which did not lead to deregistration or dismissal might operate.

Therefore, for some kinds of action it is possible that the civil burden of proof may be a live issue. In the unlikely event that the council wished to oblige some regulators to follow that route, I remind Members of the Committee that we have now tabled amendments to the Bill so that the direction would only have effect after both Houses of Parliament had approved an order setting a date for it to come into force. Moreover the council would have to prove that any such move was desirable for the protection of the public, which is the standard that the Bill applies. It would also have to convince Parliament of that. For those reasons I hope that the noble Baroness accepts that the amendment is unnecessary.

Baroness Northover

I thank the Minister for that reassuring reply. I shall read it in the cooler light of day. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 25, as amended, agreed to.

Clause 26 [Complaints about regulatory bodies]:

[Amendments Nos. 180 to 188 not moved.]

Clause 26 agreed to.

Clauses 27 to 34 agreed to.

[Amendments Nos. 188A and 188B not moved.]

Clause 35 agreed to.

Schedules 8 and 9 agreed to.

Clause 36 [Regulations and orders]:

Lord Hunt of Kings Heath

moved Amendment No. 189: Page 43, line 28, at end insert "or, in the case of an order made by the Department of Health, Social Services and Public Safety in Northern Ireland under section 25, by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)) On Question, amendment agreed to.

Lord Hunt of Kings Heathmoved Amendments Nos. 190 to 194: Page 43, line 31, after "section" insert "25, Page 43, line 34, after "34" insert ", or an order of the Secretary of State under section 25, Page 43, line 35, at end insert— ( ) No order shall be made by the Department of Health, Social Services and Public Safety in Northern Ireland under section 25 unless a draft of the order has been laid before, and approved by resolution of, the Northern Ireland Assembly. Page 44, line 15, at end insert— (6A) Subsections (4) to (6) do not apply to orders under section 25. Page 44, line 16, at beginning insert "Subject to subsection (6A),

The noble Lord said: With the leave of the Committee I shall move Amendments Nos. 190 to 194 en bloc. I beg to move.

On Question, amendments agreed to.

Clause 36, as amended, agreed to.

Clauses 37 to 40 agreed to.

House resumed: Bill reported with amendments.

House adjourned at twelve minutes past midnight.