Lords Sitting of 10 November 2003

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

Gulf War 1990–91: Vaccines
Lord Morris of Manchester: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest as honorary parliamentary adviser over many years to the Royal British Legion.
The Question was as follows:
To ask Her Majesty's Government what representations they have received from the Secretary General of the Royal British Legion about vaccines used by the Ministry of Defence during the 1990–91 Gulf War and the renewed call for a full public inquiry.
Baroness Crawley: My Lords, the Royal British Legion continues to campaign for such an inquiry. However, the Government are not convinced that a public inquiry would help. The possibility that we may look again at this matter has not been ruled out but, in the present circumstances, it is only through the programme of research initiated by the Government that we are ever likely to be able to establish the causes of Gulf veterans’ illnesses.
Lord Morris of Manchester: My Lords, I am grateful to my noble friend. Is it not a deeply serious parliamentary matter that, 13 years after the conflict, so many of our troops, some now terminally ill, are still left with medically unexplained illnesses? Are not the Government's frank admissions on 9th October—that medical record-keeping was abysmal and that an unlicensed vaccine was used on our troops—also cause for grave concern? As the MoD does not know what vaccines were given to whom and when, Porton Down's tests on animals cannot possibly have replicated the immunisation programme as administered. So how can it possibly be determined whether the vaccines were safe in any particular case? Surely the Secretary General's compelling case for a public inquiry now deserves a positive response.
Baroness Crawley: My Lords, in answering my noble friend's question, I acknowledge the tremendous work that he carries out with the Royal British Legion on behalf of Gulf War veterans. Although we are aware of the tremendous frustration felt by Gulf War veterans in the years since the conflict, my noble friend, of all people, will appreciate the work undertaken by this Government since we came to office in 1997. We have initiated scientific research, provided medical help, given information and made
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that information available and transparent, and we have provided substantial financial assistance. We have acknowledged the problems of the poor record-keeping that occurred in 1990–91, as referred to by my noble friend. Indeed, we placed that in the public domain. In the intervening years, this Government have made many improvements to record-keeping.
In an Answer to my noble friend on 5th November, we said that, although the Government were not convinced that a public inquiry would help to answer the basic question of why Gulf veterans are ill, we have not ruled out the possibility that we may look at the matter again if circumstances change.
Lord Vivian: My Lords, can the Minister explain why the combined anthrax and pertussis vaccine was used to immunise troops in January, February and March 1991, given that the pertussis vaccine was not licensed for use in the United Kingdom and that the test results of the combined vaccine on mice resulted in severe weight loss, although guinea pigs showed no reaction? Furthermore, the then Deputy Chief Medical Officer, Dr Metters, recalls advising the MoD on 21st December 1990 of the importance and relevance of the information from the National Institute for Biological Standards and Control, stressing his own concerns and those of the institute. What were the reasons for going ahead with the immunisation programme when such serious concerns had been reported to the MoD and the Department of Health?
Baroness Crawley: My Lords, the noble Lord, Lord Vivian, will know that the fact that a vaccine is unlicensed does not mean that it is untested and therefore inherently unsafe. He will also know that licensing procedures cannot be accelerated; hence, there was no possibility of obtaining a United Kingdom licence for any previously unlicensed products in the six months between the Iraq invasion of Kuwait and the coalition campaign to liberate it. Anthrax was licensed, as the noble Lord acknowledged, and pertussis was licensed for children but not for adults. As we said in our Written Answer of 9th October to my noble friend Lord Morris, we do not know whether or not heed was taken of the concerns expressed by the Chief Medical Officer. The test results referred to by the noble Lord, Lord Vivian, are interim results published at Porton Down. We await the final results at the end of the year.
Lord Clement-Jones: My Lords, I share the indignation of the noble Lord, Lord Morris, in that it appears that the Government still do not know the consequences of their vaccination programme of some 12 years ago. Indeed, the noble Lord's Written Question, put to the Minister in January this year, was not replied to until October. That demonstrates that the facts and figures were not available to this Government.
Further to the question asked by the noble Lord, Lord Vivian, what was the status of those vaccines? The Minister's reply to the Written Question stated

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that it was offered to all personnel. Was that an offer that they could not refuse or was it a vaccine that was genuinely voluntary? What is the current status?
Baroness Crawley: My Lords, the reason for taking so long to answer my noble friend's Question—it was tabled in January and answered on 9th October—is because it included several questions. We found it necessary to seek the advice of independent experts on the arrangements for administering anthrax and for MoD officials to consult colleagues in the Department of Health licensing department, who in turn needed to seek advice from others. In order to give the fullest possible Answer, it was decided to provide information on the use of the anthrax vaccine after 1990–91. Information about contraindication for the 13 vaccines used at that time was not readily available. Anthrax was not a compulsory vaccination and never has been. It has always been voluntary.
Baroness Trumpington: My Lords, is the same cocktail of vaccines being used for the troops in Iraq today?
Baroness Crawley: My Lords, we have learnt many lessons from the problems identified in 1990–91. Today we have a very important schedule of vaccination times. Vaccines are given at certain times on a routine basis. As to the content of the vaccine, I shall contact the noble Baroness.
Baroness Park of Monmouth: My Lords, I remember this issue being raised many years ago. It was not admitted then as freely as now that there were serious mistakes in medical record-keeping. That has been said for a long time. Does the Minister agree that if we can have public inquiries for a train or boat disaster, surely it is wholly unreasonable that we should still refuse to have one for more than 5, 000 people who are getting older and who have unexplained illnesses, and at a time when we have troops at war?
Baroness Crawley: My Lords, it is still the view of this Government that only through a programme of research initiated by the Government are we ever likely to find the reasons why so many Gulf veterans are ill. As I said, the Government have not closed their mind.

Hallmarking
2.45 p.m.
Lord Bradshaw Lord Bradshaw asked Her Majesty's Government:
Whether they have any proposals for revision or modification of the existing system of hallmarking of precious metals.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville): My Lords, a draft EU directive on hallmarking has been proposed, but the UK is opposing it because it would weaken the protection
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currently enjoyed by consumers in the UK. We think that we have a reasonable chance of success. The British Hallmarking Council has recommended changing UK legislation to mark mixed metal articles, but responses to a consultation on this did not make an adequate case for such changes.
Lord Bradshaw: My Lords, I thank the Minister for that Answer. I hope that it is still a draft directive rather than law. If we are forced down that road, can he ensure that we still retain, as a secondary mark, the established British hallmarking system on genuine goods, because some of the European states will not enforce a European directive?
Lord Sainsbury of Turville: My Lords, let me be clear. We oppose the directive because we believe that it would not maintain consumer confidence, that it would not be effectively enforced and that it would do nothing for the common market. The terms of the directive do not mean that an assay mark cannot be used; they simply mean that it does not have to be used and that one can rely on a manufacturer's mark plus market surveillance. We do not think that that is a good system. We want to retain the system we have. Even if the directive is passed—we shall oppose it—we could still put on the marks that we have.
Baroness Gardner of Parkes: My Lords, is it not a fact that nine of the 10 countries due to join the European Community next year favour compulsory hallmarking and that this is such a hazardous moment because of the Italian presidency? The Italians produce a good deal of jewellery in this country, but is it not also a fact that more Italian items are destroyed for undercaratage than any others? The major risk of losing the British hallmarking system, which is such a guarantee of standards to consumers, will remain until this presidency finishes at the end of the year.
Lord Sainsbury of Turville: My Lords, it is true that the Italians revived the hallmarking directive in July. It is an issue about which they feel very strongly. That has not in any way prevented imports of Italian jewellery in to this country. At present the discussions on the working party are not making great progress. The Italians have said that they will take this matter to the Committee of Permanent Representatives (COREPER). We think that that will not make progress. We shall continue to oppose the directive.
Lord Desai: My Lords, I declare an interest. I wrote a brief for the British goldsmiths association arguing against the retention of the assay mark which, if considered carefully, is just an extra cost imposed on British jewellers. Countries elsewhere in the world can manage without such a system; it is just a market distortion. The sooner we do away with it the better. Will my noble friend reconsider his position and support the directive? That would make us more competitive in Europe.
Lord Sainsbury of Turville: My Lords, the mark is a very minor cost. We think that it is an essential piece

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of information. Far from it being a market distortion, it is a very good piece of information that gives consumers confidence in the product that they are buying. We have no intention of changing our policy on this matter.
Baroness Miller of Hendon: My Lords, the Minister has told this House on more than one occasion that our Government are, fortunately, against this directive. Can the Minister say whether Her Majesty's Government are confident that they will have sufficient support at the next Council meeting at the end of the month to frustrate this Commission proposal?
Lord Sainsbury of Turville: No, my Lords. We hope that enough member states share our view to be able to block this measure, which is for qualified majority voting. However, we must recognise that there are member states which support the directive. That is why we are making a major effort to persuade other member states to come round to our point of view.
Lord Tomlinson: My Lords, is my noble friend aware that the noble Lord, Lord Desai, does not speak for all Members on this side of the House, the vast majority of whom would support the Government in their total opposition to this directive? If the noble Lord, Lord Desai, needs further direction on this matter, he is very welcome to come and talk to the people at the Birmingham Mint, who will soon put him right about this fundamental measure of consumer protection.
Lord Sainsbury of Turville: My Lords;, I am sure my noble friend Lord Desai would be horrified if it was ever thought that he was speaking for the majority of this House.

Zimbabwe: Aid
2.51 p.m.
Lord Astor of Hever Lord Astor of Hever asked Her Majesty's Government:
How they will ensure that recent British aid to Zimbabwe will not be used for political ends.
The Lord President of the Council (Baroness Amos): My Lords, we remain confident that the systems are in place to ensure that humanitarian relief provided by the United Kingdom reaches those most in need. The World Food Programme and others distributing international food aid all have clear procedures and monitoring systems in place, and these are working well. Along with the United Nations, the EU and other donors, we continue to make it clear to the Zimbabwean Government that we will not tolerate political interference in the distribution of food aid.
Lord Astor of Hever: My Lords, over the past two years, British taxpayers have poured £62 million worth of humanitarian aid into Zimbabwe. Independent reports say that that has been manipulated to help prop up the brutal dictatorship. Has the time not now come to table a UN resolution to seek monitors, not only for the distribution of food aid, but also for human rights issues?
Baroness Amos: My Lords, I have answered a number of Questions about the manipulation of food aid. I have made it absolutely clear that we think that the monitoring process we have put in place is robust and that there are investigations every time there is any kind of allegation. With respect to seeking a UN resolution, noble Lords will recall that in the United Nations there is no appetite for any such resolution. In fact, when we have put resolutions to the UN human rights committee, they have fallen as a result of the action taken by the African group as a whole.
Viscount Waverley: My Lords, why does the United Kingdom have a history of recognising foreign governments which manifestly have adopted power by bypassing acceptable election processes?
Baroness Amos: My Lords, it is a long-standing convention that we recognise states not governments.
Lord Avebury: My Lords, the noble Baroness said that the World Food Programme is satisfied with the monitoring arrangements. Has she noted its statement that the number of people dependent on food aid will increase from 1.8 million in October to more than 5.5 million in the early months of next year? Is she satisfied that the arrangements are robust enough to cope with a trebling of the number receiving aid, particularly bearing in mind the acknowledged shortages which are occurring in the urban areas and, in particular, in Matabeleland? Will our programmes do everything possible to redress the discrimination against the urban areas and against Bulawayo where children are now starving to death from malnutrition?
Baroness Amos: My Lords, I received a report this morning from an official who was in Zimbabwe last week. The numbers will rise from 1.3 million to 5.5 million, but that is because we are approaching what is called the "hungry season". So the figures will be more in line with those last year. We are confident, following our discussions in Zimbabwe last week, that the monitoring systems are robust. We have given an additional £0.5 million to the World Food Programme to cover monitoring issues. We continue to feed some 1.1 million vulnerable people in Zimbabwe, including malnourished children.
Lord Howell of Guildford: My Lords, did not the very well respected international Human Rights Watch find incontrovertible evidence that food aid is being manipulated for political ends and that some horrible and brutal decisions are being taken?

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We all recognise that the Government are very limited in what they can do about this issue—short of working very hard to get rid of Mugabe—but over the weekend did not the Minister hear the American President calling Zimbabwe an outpost of oppression? Is she not aware—I am sure she is—that day after day our high commissioner in Harare is subjected to the most appalling and outrageous threats and insults? Is it not time that we followed the example of the American Congress and spoke out more robustly and more strongly and pushed Mr Mbeki in South Africa into the action he has promised, which is to bring this horrific nightmare to an end?
Baroness Amos: My Lords, the noble Lord, Lord Howell, raised a number of different issues. First, how robust have the UK Government been? We cannot have been more robust. A decision would not have been taken at the Commonwealth Heads of Government meeting last year, which I attended, suspending Zimbabwe from the councils of the Commonwealth, if the UK Government and our Prime Minister had not been extremely robust. We were the first country to cease arms sales to Zimbabwe. We were part of the European Commission that agreed sanctions and an assets freeze. The US Government followed the European Union with respect to that.
We have been at the forefront of discussions, not just with our European partners, but with the United States and others about what we can do in Zimbabwe. I have said in this House many times that outside governments are extremely limited in what they can do regarding a government who are intent on repressing and harassing their own people. We have done our best. I have listened time and again to calls from the party opposite for us to do more, but have heard very little about what more we can do.
Lord St John of Bletso: My Lords, can the Leader of the House explain what steps her Majesty's Government intend to take at the forthcoming Heads of Commonwealth conference in Abuja to promote a resolution to the political crisis in Zimbabwe and the flagrant abuse of human rights in that country?
Baroness Amos: My Lords, we shall continue to talk with other Commonwealth countries about this matter. Noble Lords will know that Zimbabwe has not been invited to the conference by the Nigerian Government, which is hosting the event.
Baroness Park of Monmouth: My Lords, we have been told—and I am sure it is true—that we are working very closely with the EU on this matter. The EU is, in turn, beginning to work very closely with the African Union. I think that the Minister will agree that the African Union has consistently blocked our efforts to bring the issue to the United Nations. Is it part of our express policy to urge all our EU partners to press the African Union no longer to continue that opposition, but to allow a resolution to be properly discussed, as it should be, in the United Nations?
Baroness Amos: My Lords, we have continued to work with our EU partners. The noble Baroness will recall that the EU-Africa summit, which was due to be held earlier this year, did not go ahead precisely because the EU and the AU could not reach agreement about the possible attendance or non-attendance of Mugabe at that summit. We shall continue to do that work. The noble Baroness will also be aware that there are differences among European Union countries with respect to an ongoing strategy on Zimbabwe.
Viscount Goschen: My Lords, perhaps I may take the noble Baroness back to the question posed by my noble friend Lord Howell. Is she satisfied that the South African Government are doing everything possible to apply pressure on Mugabe's regime to bring it to an immediate close?
Baroness Amos: My Lords, noble Lords will know that we have been in discussions over many months with the South African Government. They have assured us that they are engaged in discussions on these matters with the Government of Zimbabwe, and indeed with the MDC.
Earl Attlee: My Lords, the Minister talked about the monitoring of the distribution of food aid. Can she say how many irregularities have been detected recently?
Baroness Amos: My Lords, no irregularities have been detected recently.
Noble Lords: Oh!
Baroness Amos: That is absolutely right, my Lords. I remind noble Lords of a point I have made in this House before. The international community provides food aid, but the Government of Zimbabwe itself provides food aid through the Grain Marketing Board. So many of the irregularities that may have been brought to your Lordships' attention relate not to international aid through either the World Food Programme or the Department for International Development but to the food aid being delivered by the Government of Zimbabwe. If noble Lords know of irregularities, I should be happy if they brought them to my attention.

International Development Funding
3 p.m.
Baroness Greengross Baroness Greengross asked Her Majesty's Government:
Whether they have any plans to reduce international development funding to middle-income countries.
Baroness Amos: My Lords, the Government are committed to spending 90 per cent of DfID country programmes in low-income countries by 2005–06. That, together with contributing to the cost of

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recovery in Iraq, will lead to some reductions in aid to other middle-income countries in future years. Further details are provided in a Written Answer I have today given in reply to my noble friend Lord Radice. I have placed a copy of that Answer in the Library of the House.
Baroness Greengross: My Lords, I thank the noble Baroness the Leader of the House for that reply and declare an interest as a board member of HelpAge International, an international development charity working for and on behalf of older people in many middle-income countries.
I welcome the Government's continued commitment to increase overall international development funding and support for multinational organisations such as HelpAge International. I hope that Iraq will soon rejoin the group of middle-income countries. However, I am disappointed that the extra spending on its reconstruction has meant that a further £50 million has been cut from funding for middle-income countries in the next two years. That may be especially harmful to programmes in Latin America and Eastern Europe.
Noble Lords: Question!
Baroness Greengross: My Lords, I seek the Minister's reassurance that central to her department's international development agenda on poverty reduction is another change in circumstances that we face, which is the global revolution in ageing, which is impacting on all parts of the world, especially developing countries.
Baroness Amos: My Lords, I assure the noble Baroness that the commitment of the Government and of the Department for International Development to the poorest countries in the world will continue. What is happening at present is an acceleration of the trend to which we are already committed. We have a target to move our spending from a current base of 78 per cent spent on the lowest income countries in the world to 90 per cent by 2005–06. Iraq counts as a middle-income country. We have considered how we spend the money that we allocate to middle-income countries and have had to reallocate within it. But our commitment to the poorest countries in the world continues.
Baroness Northover: My Lords, does the Minister recall that on 12th March 2003, it was stated:
"It would clearly be wrong to consider withdrawing DfID funding from other humanitarian emergencies or development efforts elsewhere in the world"?
Clare Short, the noble Baroness and the Prime Minister all said that reconstruction costs in Iraq would come from DfID reserves. However, on 6th November, Hilary Benn stated—and the noble Baroness echoes him—that the,
"withdrawal from programmes, earlier than we had previously decided".—[Official Report, Commons, 6/11/03; col. 42WS.],
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was because of expenditure in Iraq. What other battles is DfID likely to lose over Iraq?
Baroness Amos: My Lords, the noble Baroness, Lady Northover, misunderstands the nature of DfID funding. The money we spend on humanitarian aid and emergencies around the world is separate from the money we spend on our bilateral and multilateral programmes. There has been no cut in our humanitarian or emergency assistance to any country as a result of our programmes in Iraq. What we have considered reallocating—not during this year but from next year—is the money spent in middle-income countries, which we were already doing in any event so that we could meet our commitment to 90 per cent of our spending going to low-income countries.
Baroness Rawlings: My Lords, the middle-income countries whose budgets have constantly been under threat under this Labour Government are still home to at least 140 million people living in poverty. The Secretary of State, Mr Benn, released a shocking Written Statement last week describing reduction of spending in middle-income countries of about £100 million. Only in October did he pledge £544 million for Iraq, with no mention of cutbacks.
Of course we support aid for reconstruction of Iraq, but not at the expense of countries such as Albania, Romania and Bulgaria, to mention but a few, or poor countries such as those in Latin America. Why do the Government continue to calculate by pure numbers of people per country, not by percentage? There will always be more people below the poverty line in China than Albania, for example. How do the Government expect aid programmes to continue if they are cut so suddenly?
Baroness Amos: My Lords, the noble Baroness represents a party which presided over a dramatic fall in the amount going to overseas development. Since 1998, UK aid spending has increased by 74 per cent in real terms. So I do not understand her point about our overseeing cuts in expenditure on development. We have made a commitment to the poorest in the world that 90 per cent of our bilateral funding will go to them through our commitment to low-income countries.
Lord Joffe: My Lords, some middle-income countries, such as South Africa, are being ravaged by HIV/AIDS. Their needs are perhaps even greater than those of Iraq, especially bearing in mind that they are not in receipt of the massive reconstruction budget presently offered by the USA to Iraq. Will the Leader of the House outline the key criteria applied by DfID in reallocating funds from middle-income countries to Iraq and confirm that those criteria are consistent with those usually followed by DfID in allocating funds?
Baroness Amos: My Lords, I reassure the noble Lord, Lord Joffe, that dealing with HIV/AIDS is central to our work in sub-Saharan Africa and will continue to be, regardless of whether it occurs in a middle-income country such as South Africa or

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elsewhere. On the criteria, post-conflict countries have always been important to our development agenda. We are developing a strategy for our work in middle-income countries.

Business of the House: Armistice Day
Baroness Amos: My Lords, as the House will know, tomorrow is Armistice Day. Although the House will not be sitting at 11.00 a.m., Members of the House, their staff and officials of the House will be attending to their duties. I think that the House will agree that it is appropriate that we should join the nation in observing the two-minute silence at that time, so that we might remember those who gave their lives for their country to help to preserve our democratic freedom. Instructions will also be issued to Heads of Department, so that those members of staff who wish to observe the two-minute silence are enabled to do so.

Health and Social Care (Community Health and Standards) Bill
3.8 p.m.
The Parliamentary Under-Secretary of State, Department of Health (Lord Warner): My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Lord Warner.)
On Question, Motion agreed to.
Schedule 3 [Transfer of staff]:
[Amendment No. 232 not moved.]
Clause 26 [Sections 23 to 25: supplementary]:
Lord Warner Lord Warner moved Amendment No. 233:
Page 11, line 20, leave out subsections (3) and (4).
On Question, amendment agreed to.
[Amendment No. 234 not moved.]
Clause 27[Mergers]:
Lord Warner Lord Warner moved Amendments Nos. 235 to 239:
Page 12, line 16, leave out "he" and insert "the regulator"
Page 12, line 20, leave out from beginning to "will" in line 21 and insert "the applicant has taken steps to secure that (taken as a whole) the actual membership of any public constituency, and (if there is one) of the patients' constituency".
Page 12, line 25, leave out "he" and insert "the regulator".
Page 12, line 25, at end insert—
"( ) In deciding whether it is satisfied as to the matters referred to in subsection (5)(c), the regulator is to consider (among other things)—

(a) any report or recommendation in respect of either of the applicants made by the Commission for Healthcare Audit and Inspection,

(b) the financial position of the applicants."

Page 12, line 26, leave out from beginning to "the" in line 27 and insert—
"( ) The applicants must consult about the application in accordance with regulations.
( ) In the course of the consultation the applicants must seek the views of—

(a) any Patients' Forum for an applicant,

(b) the staff employed by the applicants,

(c) individuals who live in any area specified in the proposed constitution as the area for a public constituency,

(d) any local authority that would be authorised by the proposed constitution to appoint a member of the board of governors,

(e) if the proposed constitution provides for a patients' constituency, individuals who would be able apply to become members of that constituency,

(f) any persons prescribed by regulations.

( )"
Page 12, line 28, leave out "he" and insert "it".
On Question, amendments agreed to.
[Amendment No. 240 not moved.]
Clause 28 [Section 27: supplementary]:
Lord Warner Lord Warner moved Amendment No. 241:
Page 13, line 2, leave out subsection (4).
On Question, amendment agreed to.
[Amendment No. 242 not moved.]
Clause 29 [Co-operation between NHS bodies]:
[Amendment No. 243 not moved.]
Clause 30 [Public involvement and consultation]:
[Amendment No. 244 not moved.]
Clause 31 [Patients' Forums]:
Lord Warner Lord Warner moved Amendment No. 245:
Page 13, line 21, at end insert—
"( ) In section 15 (establishment of Patients Forums), after subsection (2) there is inserted—
"(1A) The Secretary of State shall also establish a Patients' Forum for each NHS foundation trust, unless a resolution of the board of governors of the trust under section 18A has had effect.
(1B) In relation to a Patients' Forum established by virtue of subsection (1 A) references in this Part to the trust, or NHS trust, for which it is established shall be read as references to the NHS foundation trust.""
The noble Lord said: My Lords, my ability to clear the Chamber is impressive. As I have said previously, we support independent patient involvement. NHS foundation trusts, like other NHS bodies, will be under a duty to consult and involve patients and the public under Clause 30. The Bill did not require NHS foundation trusts to have patients' forums because we do not want to prescribe how NHS foundation trusts should implement their duty to consult and involve the public and patients. In that stance there was no intention to diminish the work of patients' forums.
However, we recognise that there are strong feelings and concerns on the issue, in the House and outside. We wish to respond to those concerns by proposing that all NHS foundation trusts will, in the first instance, have a patients' forum. An NHS foundation trust must continue with a patients' forum for at least a year from establishment, under the government amendments in the group that we are moving. That will give a trust's governance arrangements a chance to get fully up and running, and the trust will have had the opportunity to consider the best way of fulfilling its duty to consult and involve patients and the public. At

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that stage, the board of governors will gain a power to vote on dissolving the patients' forums under those amendments.
Before voting on dissolution of its patients' forum, the board of governors would first need to consult the members of the trust and the patients' forum itself. The board of governors would also need to be satisfied that satisfactory alternative arrangements were in place for fulfilling the independent patient involvement and scrutiny role of the patients' forum. At least three-quarters of the members of the board of governors must vote to dissolve the patients' forum at a general meeting for such a resolution to be passed. That is what Amendments Nos. 245, 248, 249 and 252 would achieve.
I hope that all sides of the House will feel able to support the government amendments and that colleagues on the Liberal Democrat Benches will not press their amendments. I beg to move.
Lord Clement-Jones: My Lords, I thank the Minister for introducing the government amendments as he did. They were not unexpected in view of the Minister's assurance in Committee carefully to consider an alternative to provide more comfort for patients' interests and to show that we are serious about patient involvement on the providers' side. Some of the subsidiary amendments are sensible tidying-up arrangements, as were the amendments tabled by the Liberal Democrats at the previous stage. To that extent, they are welcome. We welcome, in particular, Amendment No. 249, which amends Section 19 of the 2002 Act, and Amendment No. 252, which gives the commission the right role as regards foundation trusts. We very much welcome the introduction of statutory consultation requirements on merger proposals, which has been under debate.
We do not accept the underlying principle behind the Government's amendments. Patients' forums are a statutory link with the community, so the community should decide whether that link is severed, not the foundation trust. Amendment No. 245 and subsequent amendments tabled by the Government attempt to provide a consultation procedure, but it starts from the wrong end. It is no good to consult a foundation trust patients' forum without a duty to have regard to what it says. It is all very well to consult, but the process must be taken seriously, and there should be a duty to do so. Will the overview and scrutiny committees of local authorities be consulted? Those are essential pre-requisites to any power.
Our fundamental objection is that we see patients' forums as the standard operating requirement for patients' involvement in the NHS, whether an ordinary NHS trust or a foundation trust. They should, and will, be a useful independent informed voice for patients and will be able to act as a support for governors, counterbalancing the influence of trust management on the governing body. They should be able to link up accountability mechanisms, particularly through their powers of referral to
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overview and scrutiny committees. They should link up also with national accountability, through the referral of issues of concern to the commission.
The bottom line is that the Government themselves made a commitment that there should be a patients' forum in every trust and PCT. That was the underlying basis of the 2002 Act. By the simple expedient of getting rid of NHS trusts and turning them into foundation trusts, they are attempting to climb out of that commitment, albeit with that caveat. That is a major problem for us.
There are problems with individual amendments. What sticks out most is the aspect of timing. Under the Government's provisions, by my calculations, the minimum period for which a foundation trust should have a patients' forum is 15 months—I do not know whether the Minister will be able to confirm that. That is a ridiculously short time in which to have a patients' forum to see whether that will operate. Even in their own terms, the Government's amendments seem extraordinarily flawed.
Many of us have considerable doubts about what constitute adequate arrangements to secure the performance of functions corresponding to those of the patients' forum for that trust. One could go into detail specifying that; indeed, if we were to accept the provision, such detail would have to be included. But, having looked carefully at the provisions, I am afraid to say that I do not believe that the Government have gone far enough. They will have to stretch themselves to go that extra mile.
3.15 p.m.
Earl Howe: My Lords, I support the noble Lord, Lord Clement-Jones, in what he says on this group of amendments. I recognise that the Minister has tried to be helpful in tabling the government amendments, but I am sorry to say that, having read them, I do not think that they will do.
The central point is that the governors of a foundation trust should not be made judge and jury on the question of whether to get rid of a patients' forum. That is surely what they would be, as the consultation that they would be required to perform under proposed subsection (5) is only that—consultation. As the noble Lord said, it does not include a duty to pay attention to the feedback that the governors receive or to act accordingly.
The chairman of the board of governors is in a particularly awkward position since he is also the chairman of the trust, who would have a clear interest in wanting to remove the patients' forum. Like the noble Lord, Lord Clement-Jones, I do not see why the overview and scrutiny committee has been omitted from the consultation process. One of patients' forums' main powers is that of referral to the local overview and scrutiny committee. That is part and parcel of their democratic underpinning. It seems extraordinary to ignore the views of the OSC.
I agree that the Government need to explain the meaning of subsection (1) of Amendment No. 248. It is not clear what replacement arrangements there

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could be for a statutory power to refer a matter to the OSC or the Commission for Patient and Public Involvement in Health; nor is it clear what replacement arrangement there could be for a statutory duty to find out the views of patients.
As a matter of drafting, the Government's amendments, taken together, cause me some puzzlement. Amendment No. 248 refers to the circumstances in which a patients' forum may be dissolved. That presupposes that a patients' forum exists to be dissolved. Yet, Amendment No. 245 says that a patients' forum need not be set up in the first place, if a resolution under Amendment No. 248 has been passed. How could that resolution have been passed if the patients' forum did not exist? I should be glad, if the Minister could explain.
I feel let down by the Government's approach to patients' forums in the Bill, despite the fact that they tried to meet us halfway. The promise was made only a few months ago—after three years of negotiation— that every hospital would have its own forum. If patients' forums are to be abandoned across the piece in acute trusts, the least that should happen is that the community itself should do the deciding. The government amendments adopt the wrong approach.
Baroness Masham of Ilton: My Lords, I am pleased that the Government have listened and have moved a bit on foundation hospitals and patients' forums. As there are so many changes and new bodies in the National Health Service, I ask the Minister to spell out what patients' forums will do. There is confusion on so many bodies at the moment.
Lord Warner: My Lords, on the last point, I can say that, under foundation trusts, patients' forums will do the same job as they do under the existing arrangements. There is no change in their functions. They will continue the functions that they have performed under an NHS trust, when that trust becomes an NHS foundation trust.
In response to the point made by the noble Earl, I say that, together, the amendments achieve the transfer of the patients' forum. We disagree with his view that they do not. I am happy to consider the point again with parliamentary counsel to ensure that the amendments achieve the purpose that we said they would achieve. It was my intention, in approving the amendments, that they should achieve that purpose. There would be no point in our making elaborate arrangements for possible dissolution, if we had not ensured that they would continue when the NHS trust became an NHS foundation trust. I hope that, with that reassurance, the noble Earl will accept that we have endeavoured to do that.
We think that some of the remarks made by the noble Lord, Lord Clement-Jones, are a bit harsh. If we examine the detail of what we have provided, we will see that there is a high threshold for getting rid of a patients' forum through a foundation trust. We have required a 75 per cent vote at a meeting of the board of governors. That is a fairly high threshold. The
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governors must be satisfied that there is alternative provision that satisfactorily carries out the functions of a patients' forum. There will have to be powerful evidence that an alternative to the patients' forum can be provided, and the vote must pass the 75 per cent threshold that we have specified.
Lord Skelmersdale: My Lords, is the noble Lord withdrawing the amendment, so that we can go back to it at Third Reading? Is he going to consider it again between now and Third Reading? This is Report, and I do not believe that he will be able to consider the amendment again, if we agree it now.
Lord Warner: My Lords, I am sorry if I have misled the House. I have absolute confidence in our amendments. I thought that I had moved the amendment earlier. For the avoidance of doubt, I beg to move.
3.25 p.m.
On Question, Whether the said amendment (No. 245) shall be agreed to?
Their Lordships divided: Contents, 106; Not-Contents, 127.

Division No. 1

CONTENTS

Acton, L.

Faulkner of Worcester, L.

Ahmed, L.

Filkin, L.

Allenby of Megiddo, V.

Fitt, L.

Amos, B. (Lord President)

Gale, B.

Andrews, B.

Gavron, L.

Archer of Sand well, L.

Gibson of Market Rasen, B.

Ashley of Stoke, L.

Golding, B.

Ashton of Upholland, B.

Goldsmith, L.

Barnett, L.

Gordon of Strathblane, L.

Bassam of Brighton, L.

Goudie, B.

Berkeley, L.

Gould of Potternewton, B.

Bernstein of Craigweil, L.

Greengross, B.

Blackstone, B.

Gregson, L.

Borrie, L.

Grocott, L. [Teller]

Brooke of Alverthorpe, L.

Hannay of Chiswick, L.

Brookman, L,

Harrison, L.

Campbell-Savours, L.

Haskel, L.

Carter, L.

Hayman, B.

Chorley, L.

Hilton of Eggardon, B.

Christopher, L.

Hogg of Cumbernauld, L.

Clarke of Hampstead, L.

Hollis of Heigham, B.

Clinton-Davis, L.

Howarth of Breckland, B.

Colville of Culross, V.

Howells of St. Davids, B.

Corbett of Castle Vale, L.

Hughes of Woodside, L.

Craig of Radley, L.

Hunt of Kings Heath, L.

Crawley, B.

Irvine of Lairg, L.

Davies of Oldham, L. [Teller]

Jay of Paddington, B.

Derby, Bp.

Joffe, L.

Desai, L.

Jones, L.

Dixon, L.

King of West Bromwich, L.

Dormand of Easington, L.

Kirkhill, L.

Dubs, L.

Lea of Crondall, L.

Eatwell, L.

Lipsey, L.

Elder, L.

Lockwood, B.

Evans of Temple Guiting, L.

Lucas, L.

Evans of Watford, L.

Macdonald of Tradeston, L.

Falconer of Thoroton, L. (Lord

McIntosh of Haringey, L.

Chancellor)

MacKenzie of Culkein, L.

Farrington of Ribbleton, B.

Mason of Barnsley, L.

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Massey of Darwen, B.

Sheldon, L.

Merlyn-Rees, L.

Simon, V.

Mitchell, L.

Stallard, L.

Morgan, L.

Stone of Blackheath, L.

Morris of Aberavon, L.

Symons of Vernham Dean, B.

Morris of Manchester, L.

Tanlaw, L.

Ouseley, L

Tenby, V.

Patel of Blackburn, L.

Tomlinson, L.

Paul, L.

Turner of Camden, B.

Warner, L.

Ponsonby of Shulbrede, L.

Wedderburn of Charlton, L.

Prys-Davies. L.

Whitaker, B.

Rendell of Babergh, B.

Whitty, L.

Richard, L.

Wilkins, B.

Rooker, L.

Williams of Elvel, L.

NOT-CONTENTS

Addington, L.

Kimball, L.

Alexander of Weedon, L.

Laing of Dunphail, L.

Arran, E.

Liverpool, E.

Astor of Hever, L.

Lyell, L.

Attlee, E.

Macfarlane of Bearsden, L.

Avebury, L.

MacGregor of Pulham Market,

Barker, B.

L.

Biffen, L.

Mackay of Clashfern, L.

Blatch, B.

Masham of Ilton, B.

Boothroyd, B.

Mayhew of Twysden, L.

Bowness, L.

Miller of Chilthorne Domer, B.

Bradshaw, L.

Miller of Hendon, B.

Bridgeman, V.

Monro of Langholm, L.

Brigstocke, B.

Montrose, D.

Brittan of Spennithorne, L.

Mowbray and Stourton, L.

Brooke of Sutton Mandeville, L.

Moynihan, L.

Brougham and Vaux, L.

Murton of Lindisfarne, L.

Byford, B.

Newby, L.

Caithness, E.

Noakes, B.

Campbell of Alloway, L.

Northesk, E.

Carnegy of Lour, B.

Northover, B.

Clement-Jones, L. [Teller]

O'Cathain, B.

Cope of Berkeley, L.

Onslow, E.

Crickhowell, L.

Park of Monmouth, B.

Cuckney, L.

Parkinson, L.

Cumberlege, B.

Perry of Southwark, B.

Dholakia, L.

Peyton of Yeovil, L.

Dixon-Smith, L.

Phillips of Sudbury, L.

Dundee, E.

Pilkington of Oxenford, L.

Eden of Winton, L.

Plumb, L.

Elles, B.

Quinton, L.

Elliott of Morpeth, L.

Rawlings, B.

Emerton, B.

Razzall, L.

Ezra, L.

Reay, L.

Falkland, V.

Redesdale, L.

Feldman, L.

Rees, L.

Finlay of Llandaff, B.

Rees-Mogg, L.

Fookes, B.

Rennard, L.

Gardner of Parkes, B.

Roberts of Conwy, L.

Garel-Jones, L.

Rodgers of Quarry Bank, L.

Gilmour of Craigmillar, L.

Roll of Ipsden, L.

Glentoran, L.

Roper, L.

Goodhart, L.

Russell-Johnston, L.

Gray of Contin, L.

Scott of Needham Market, B.

Griffiths of Fforestfach, L.

Seccombe, B.

Hanham, B.

Sharp of Guildford, B.

Harris of Richmond, B.

Shaw of Northstead, L.

Hayhoe, L.

Skelmersdale, L.[Teller]

Henley, L.

Slim, V.

Higgins, L.

Smith of Clifton, L

Hodgson of Astley Abbotts, L.

Steel of Aikwood, L.

Holme of Cheltenham, L.

Strathclyde, L.

Howe, E.

Swinfen, L.

Howe of Aberavon, L.

Taverne, L.

Howe of Idlicote. B.

Thomas of Gresford, L.

Howell of Guildford, L.

Thomas of Walliswood, B.

Jeger, B.

Tope, L.

Jenkin of Roding, L.

Tordoff, L.

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Trefgarne, L.

Walmsley, B.

Trumpington, B.

Walpole, L.

Vivian, L.

Warnock, B.

Wade of Chorlton, L.

Weatherill, L.

Wakeham, L.

Wigoder, L.

Wallace of Saltaire, L.

Wilcox, B.

Resolved in the negative, and amendment disagreed to accordingly.
3.37 p.m.
Lord Clement-Jones Lord Clement-Jones moved Amendments Nos. 246 and 247:
Page 13, line 22, leave out subsection (2) and insert—
"(2) In section 15 (establishment of patients' forums) in subsection (1), after paragraph (b) there is inserted "and
(c) for each foundation trust."" Page 13, line 29, after "reports)" insert—
"(a) in subsection (2)(c)(ii) after "NHS trust" there is inserted "or foundation trust";"
On Question, amendments agreed to.
Lord Warner Lord Warner had given notice of his intention to move Amendment No. 248:
Page 13, line 32, at end insert—
"( ) After section 18 there is inserted—
"18A POWER OF NHS FOUNDATION TRUSTS TO DISSOLVE PATIENTS' FORUM

(1) Subsection (2) applies where the board of governors of an NHS foundation trust is satisfied that adequate arrangements are in place to secure the performance of functions corresponding to those of the Patients' Forum for that trust.

(2) The board may pass a resolution to dissolve the Patients' Forum with effect from a specified date.

(3) The date so specified must be not less than three months after the date on which the resolution is passed.

(4) The resolution must be passed at a general meeting by not less than three quarters of the members of the board.

(5) Before passing a resolution, the board must consult the members of the trust and its Patients' Forum.

(6) The board may not pass a resolution until the end of the period of twelve months beginning with the date of the trust's authorisation to become an NHS foundation trust.""

Lord Clement-Jones: My Lords, different considerations apply to the later amendments. On these Benches, we would not wish to move amendments in priority to government amendments. We would appreciate it if the Minister would move his amendments formally, to determine what the House might do in those circumstances.
Lord Warner: My Lords, I am in some difficulty here. I am being encouraged by the noble Lord to move Amendment No. 248.I am being advised not to move Amendment No. 248 by my advisers on the grounds that, given the vote, we would not move our amendments in this group. We have to look at the amendments moved by the noble Lord, which have

1099
been carried, to determine whether, technically, they require any tidying up. In the light of that, we will not be moving Amendment No. 248.
Lord Clement-Jones: My Lords, before the Minister sits down, we particularly wish that he would move Amendment No. 249.
[Amendment No. 248 not moved.]
Lord Warner Lord Warner moved Amendment No. 249:
Page 13, line 32, at end insert—
"( ) In section 19 (supplementary), in subsection (2)—

(a) in paragraph (k), after "an NHS trust, " there is inserted "an NHS foundation trust, ",

(b) in paragraph (p), after "NHS trusts, " there is inserted "NHS foundation trusts, "."

The noble Lord said: My Lords, I have nothing to add. There seems to have been a change of heart in the box since I last spoke to my advisers. They say that I should move Amendment No. 249.I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 250 and 251 not moved.]
Clause 32 [Commission for Patient and Public Involvement in Health]:
Lord Warner Lord Warner moved Amendment No. 252:
Page 13, line 34, leave out from beginning to "in" in line 36 and insert—
"( ) Section 20 of the National Health Service Reform and Health Care Professions Act 2002 (c. 17) (Commission for Patient and Public Involvement in Health) is amended as follows.
( ) In subsection (10), after "an NHS trust, " there is inserted "an NHS foundation trust, ".
( ) In subsection (12), "
The noble Lord said: My Lords, there has been a change of heart. We wish to move Amendment No. 252 as well. I beg to move.
On Question, amendment agreed to.
[Amendment No. 253 not moved.]
Clause 33 [Taxation]: [Amendment No. 254 not moved.]
Clause 34 [Other amendments relating to NHS foundation trusts]:
[Amendment No. 255 not moved.]
Lord Warner Lord Warner moved Amendment No. 256:
After Clause 34, insert the following new clause—
"CONDUCT OF ELECTIONS
(1) Regulations may make provision as to the conduct of elections for membership of the board of governors of an NHS foundation trust.
(2) The regulations may in particular provide for—

(a) nomination of candidates and obligations to declare their interests,

(b) systems and methods of voting, and the allocation of places on the board of governors, at contested elections,

(c) filling of vacancies,

(d) supervision of elections,

(e) election expenses and publicity,

1100

(f) questioning of elections and the consequences of irregularities.

(3) An NHS foundation trust must secure that its constitution is in accordance with regulations under this section.
(4) Pending the coming into force of regulations under this section, elections for membership of the board of governors of an NHS foundation trust, if contested, must be by secret ballot."
On Question, amendment agreed to.
Schedule 4 [Amendments relating to NHS foundation trusts]:
[Amendment No. 257 not moved.]
Clause 35 [Offence]:
Lord Warner Lord Warner Amendments Nos. 258 to 260:
Page 14, line 18, leave out from "form" to end of line 19 and insert "stating which constituency he is a member of.
Page 14, line 22, leave out "relevant constituency" and insert "constituency for which the election is being held"
Page 14, line 26, leave out "relevant constituency" and insert "trust"
On Question, amendments agreed to.
[Amendment No. 261 not moved.]
Clause 36 [Representative membership]:
Lord Warner Lord Warner moved Amendment No. 262:
Page 14, line 38, leave out "its public" and insert "any public constituency and (if there is one) of the patients'".
On Question, amendment agreed to.
[Amendment No. 263 not moved.]
Clause 37 [Audit]:
[Amendment No. 264 not moved.]
Schedule 5 [Audit of accounts of NHS foundation trusts]:
Lord Warner Lord Warner moved Amendment No. 265:
Page 130, line 30, after second "the" insert "board of governors and board of directors of the"
The noble Lord said: My Lords, for the avoidance of doubt, in moving Amendment No. 265, I shall speak also to Amendments Nos. 266 and 267. Schedule 5 sets out the duties, powers and responsibilities of an NHS foundation trust auditor. Paragraph 3 places a requirement on the auditor to consider whether he should make a report in the public interest on any matter which comes to his notice during the course of the audit.
These amendments have been tabled in response to the concerns expressed in Committee by the noble Baroness, Lady Noakes. She argued powerfully that in order to ensure proper accountability, it is important that there is a mechanism for ensuring that the membership is made aware of any auditors' reports on an NHS foundation trust and that they are made in the public interest. We propose to amend the Bill to ensure that any such public interest reports are sent to the board of governors, as the representative of the members, as well as to the directors of the NHS foundation trust, at the same time as they are submitted to the regulator. I beg to move.
Baroness Noakes: My Lords, I thank the noble Lord for listening to our arguments in Committee. I am pleased with the amendments.
On Question, amendment agreed to.
Lord Warner Lord Warner moved Amendments Nos. 266 and 267:
Page 130, line 33, leave out "trust and" and insert "board of governors and board of directors of the trust and to"
Page 130, line 37, leave out "trust" and insert "directors"
On Question, amendments agreed to.
[Amendment No. 268 not moved.]
Clause 38 [General duty of NHS foundation trusts]:
[Amendment No. 269 not moved.]
Clause 39 [Interpretation of Part I]:
Lord Warner Lord Warner moved Amendment No. 270:
Page 15, leave out lines 16 to 18.
On Question, amendment agreed to.
[Amendment No. 271 not moved.]
Schedule 6 [CHAI: supplementary]:
3.45 p.m.
Earl Howe Earl Howe moved Amendment No. 272:
Page 132, line 13, leave out paragraph (a) and insert—
"(a) a person appointed as chairman by the body specified in section 183(2B), "
The noble Earl said: My Lords., in moving Amendment No. 272, I shall speak at the same time to Amendments Nos. 273 to 282 inclusive, and Amendments Nos. 406 to 408 inclusive. In moving this amendment. I return to one of the key themes of our Committee debates: the extent to which both CHAI and CSCI are to be allowed to operate independently of government.
Independence from government is far from being some kind of heretical suggestion. On the contrary, it is the very characteristic that will ensure the: one outcome that we all want to see emerge from these provisions, which is that the two new bodies should command total public confidence. They must not be seen in any sense to be the stooges of Ministers. They must be free to offer advice and to reach conclusions impartially, and must be seen to do that.
I agree that neither body can operate in a way which isolates them from the broad drift of government policy or from the way in which Ministers may wish to see health policy and the health service develop but, as a matter of principle, the leverage that a government are able to exercise over CHAI and CSCI should be kept to the absolute minimum.
There are several levels on which such independence can manifest itself. The first relates to the question of who should appoint the chairman and members of CHAI. As the Bill stands, those appointments are in the gift of the Secretary of State. I do not think that the Government have made the case for this. They have said that it is their intention for all such appointments to be delegated to the NHS Appointment
1102
Commission. If that is so, then I ask the obvious question: why should that not be written on the face of the Bill?
In Committee, the Minister said that he felt it sensible for the Government to reserve for themselves a power of appointment of the chairman and members of the two bodies. He also said that the Government should be judged on their past performance as regards their readiness to delegate appointments to the commission. I am afraid that I am not swayed by either of those arguments. Even if one were to accept the slightly challenging proposition that this Government are a model of fairness and objectivity in the way that they approach appointments of this kind, the acceptability of the Bill, as the Minister knows, should not be judged according to the practices of the current administration. Those things are beside the point; the Bill should set down rules and procedures appropriate for this or any other government. We know what scope there is for political bias and for the subjective judgment of Ministers to influence their choice of appointee. With bodies as important as these, there is a cast-iron case for ruling out that possibility from the beginning.
I do not propose to deprive the Secretary of State of the power to remove either the chairman or any of the members on the grounds set out in the schedule. Those provisions seem sufficiently fair to cater for a situation where things may be going wrong and speedy action needs to be taken. However, I do not see why the remuneration of the chairman and members of CHAI and CSCI should be directly determined by the Secretary of State. Instead I propose that the Bill should adopt the same formula as that used in the Bank of England Act 1998. Under that Act, it is for the Bank itself to determine the Governor's pay, with the approval of the Secretary of State. That may be a shift only of emphasis, but it is an important shift.
Similarly, it should not be for the Secretary of State to say whether there should be pensions and allowances for the chairman and members. Following once again the model of the Bank of England Act, CHAI and CSCI themselves should be allowed to settle that question. If they decide that there should be pension arrangements, as I expect they would, then they should seek the approval of the Secretary of State for that decision. The Secretary of State would then be responsible for deciding what those arrangements should be.
Lastly, remaining with the theme of independence, the bodies must be independent financially. If they cannot be sure that they can have the money necessary to carry out their functions, they will not be truly independent. Amendments Nos. 277 and 282 amend Schedules 6 and 7 respectively for CHAI and CSCI to remove the absolute prohibition on borrowing other than from the Government with a power to borrow other than from the Government. This new power is not unconstrained, but would allow cumulative additional borrowing up to the amount of the previous year's annual expenditure.
In the ordinary course of events, if CHAI needed to borrow money, it would do so from the Government. As the Minister pointed out in Committee, that is the cheapest course, but it is not necessarily bad value for money—as the Minister went on to allege—to pay a higher interest rate. Value for money is not only about economy, it is also about efficiency and effectiveness. If CHAI is prevented investing in, say, some new technology because the Treasury's finances are in a mess, the efficiency or effectiveness of CHAI's operations could be seriously harmed. It could represent very good value for money to allow CHAI to borrow if it meant that the body could then discharge its functions in the best way possible.
I am sure that CHAI and CSCI will be responsible bodies; they will have the Comptroller and Auditor General breathing down their necks if they act otherwise. However, to suggest, as the Minister did in Committee, that borrowing by these responsible bodies could present a real danger to the effective performance of their duties is carrying things too far. The reverse is the truth: they have to be given financial freedom if they are to carry out their functions effectively.
The spirit of what the Government said they wanted to see from these provisions is that there should be freedom consistent with proper accountability to Parliament. I believe that our amendments conform with that principle. I beg to move.
Baroness Carnegy of Lour: My Lords, these are important amendments. There is a great difference between how it feels to be the chairman of a quango if you are appointed by the Secretary of State and your salary and conditions of service are fixed by him, and how it feels if you are appointed independently by someone else and your salary and conditions of service are determined by the body of which you are the chairman. It is a completely different feeling.
In my experience, there are two possible kinds of independence in these circumstances. If one has been appointed by the Secretary of State, there is independence within the broad spectrum of what is acceptable to him and to the Government of the day. Should one go on into a different kind of government, one's freedom changes slightly and one is prepared to accept that. However, if one is appointed quite independently, one can, if necessary, stand up to the Secretary of State and be truly independent. That is what we want in this case. We want the two bodies to be able to carry out, within their terms of reference, a completely independent job.
Of course we understand that there are two ways of doing so, but this is a new situation. Foundation trusts are supposed to be independent hospitals and they need independent bodies to inspect them. I strongly support the amendments.
Lord Clement-Jones: My Lords, I support the amendments. When they first announced the merger of the acute inspection aspects of CHI and the
1104
National Care Standards Commission, the Government promised a new CHAI which would be every bit as independent of government as the Audit Commission. In a sense, these amendments are designed to ensure that the Government honour that obligation. They are a natural way of ensuring that the independence of CHAI and CSCI is absolutely clear. As the amendments are drafted in moderate tones, I shall be surprised if the Government can find any reason to resist them.
Baroness Howarth of Breckland: My Lords, the noble Earl has raised a number of issues. I shall deal with them steadily as I am not as practised a parliamentarian as I hope to be in the future.
I support Amendments Nos. 278 and 281 in relation to appointments because they reflect current practice in that chairs and board members are appointed by the NHS Appointments Commission. I do not understand therefore what difficulty there will be in establishing that as a pattern. It has nothing to do with the issue of accountability through Parliament and the Secretary of State for the work carried out, but it does give a degree of separation in terms of appointment. It is suggested that an independent element could be added to the system for the appointment and dismissal of the chair and board members. This is similar to the existing system for local authority chief executives. Both suggestions are valuable.
However, I have real concerns about the amendments that would allow the commissions— certainly in relation to CSCI, which I would understand more than I would CHAI—to repay borrowed money. This is because of the complexity in regard to how repayments would be made and how money would be raised in order to make such repayments. It must be remembered that these organisations will have the freedom to impose fees and to increase them in certain circumstances. I am concerned that fees should be kept at a proper level and not used to pay for borrowed money.
It would be extraordinarily helpful if CSCI and CHAI—I do not quite understand how the process works—were able to make direct submissions to spending reviews independent of the Department of Health. The problem at the moment is that they must make their submissions through the Department of Health's total submission, where they are in competition with other groups rather than able to make their own direct interventions.
A great difficulty may arise if both commissions are not properly resourced in the future by the Government, but I am sure that the noble Lord, Lord Warner, will assure us that they will have appropriate resourcing in the future.
Lord Warner: My Lords, this large group of amendments concerns the appointment, pay and financial independence of the two commissions and the regulator.
The effect of Amendments Nos. 272, 273, 278, 406, 407 and 408 would be that all appointments to the boards of both CHAI and CSCI and also the

1105
independent regulator would be automatically delegated to a special health authority—effectively the NHS Appointments Commission.
I said previously that the Government envisage that the vast majority of national appointments for which the Department of Health is responsible will be delegated to the NHS Appointments Commission, with only a very small proportion of appointments being made directly by the Secretary of State. The position regarding CHAI and CSCI has already been made quite clear in Committee and in another place. The Government are committed to delegating all stages of the appointments processes for both commissions to the NHS Appointments Commission for chairs and non-executive members Ministers will not be involved other than by setting the criteria against which candidates are judged.
As regards the independent regulator for NHS foundation trusts, it is the Government's intention that the Secretary of State will appoint the regulator on first establishment. He may in the future consider delegating appointment of the independent regulator to the NHS Appointments Commission. It is likely that appointments to the new board structure will also be delegated in that way. Against this background, we do not believe that there is any need for the amendments.
As regards Amendments Nos. 274, 275, 276, 279, 280 and 281—which concern the determination of remuneration and other allowances—we do not believe that the parallel with the Bank of England is at all valid. The effect of the amendments is that CHAI and CSCI would themselves be responsible for determining remuneration and other allowances, including pensions, of the chairmen and members of the commissions. This would be highly inappropriate because, as I said in Committee, it is proper that these functions should belong to the Secretary of State as he sets the overall budget for CHAI and CSCI in consultation with the inspectorates—and, in the case of CHAI, with the National Assembly for Wales—and he will be able to ensure that the remuneration paid to the chair and other members is appropriate and proportionate.
It would be a little bizarre to follow the path of the amendments because the chairs and other members of CHAI and CSCI are public appointees rather than employees of the commissions. As such, their remuneration should not be determined by themselves as that would hardly ensure proper public accountability. It cannot be right for the chair and other members of CHAI and CSCI to determine themselves the amount of remuneration they are to receive. I am not sure that they would wish to do so as this would leave them open to accusations of lining their own pockets. Certainly, as someone who has chaired an NDPB, I would not want to be in the position of effectively fixing my own pay. The backstop proposed by the noble Earl of the Secretary of State having to approve such determinations would put him in an impossible position because he might have to disagree publicly with the proposals put forward by the commissions.
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I am unclear about what benefits the amendments would have. They would not serve to make the commissions more financially independent as the Secretary of State—in consultation with the Assembly in the case of CHAI—will remain responsible for setting the overall budget. The amendments would serve only to set up a system for CHAI and CSCI which, for no good reason, would be different from all other public appointments to NDPBs and would muddy the waters of accountability.
Amendments Nos. 277 and 282 seek to allow CHAI and CSCI to borrow money from the private sector. In Committee, I made clear that the Government are committed to ensuring that CHAI and CSCI are fully funded to carry out all their functions effectively, whether that funding is obtained through fee income or through central funding. Clearly, we would not wish to go to all the trouble and expense of setting up a new and powerful independent set of commissions only to render them incapable of doing their work due to lack of funding.
It would be unprecedented for NDPBs such as CHAI and CSCI to be able to raise money by borrowing from the private sector in this way. As I stated in Committee, there are good reasons, we think, in terms of value for money on interest rates and accountability for their core functions why we should not take this particular path. It is not the case, as the noble Earl has previously suggested, that this unwillingness to allow the commissions to borrow from the private sector undermines our stated belief in their capabilities and independence.
CHAI and CSCI will be independent inspectorates of health and social care, and we have every confidence in their undoubted expertise in these areas. However, I see no reason why we should depart from well established financial practices for NDPBs for CHAI and CSCI. I do not believe that these amendments make sense.
Earl Howe: My Lords, I am grateful to the Minister for setting out the Government's stall so clearly. The way in which he has done so starkly opens up the difference in philosophy between ourselves and the Government on what these two bodies should look like. I thank my noble friend Lady Carnegy for what she said. I am grateful, too, for the support from the noble Baroness, Lady Howarth, at least in part, for what I had to say.
I simply do not think that the Minister has made the case for reserving a power of appointment to government. He has not said why or in what circumstances this power would be needed. If, as they say they do, the Government intend to use the NHS Appointments Commission for the vast bulk of these appointments, that is surely the track we should pursue. For the life of me, I cannot think why this should not be set down.
There is a very good reason for creating that Appointments Commission. Our memories do not need to be that long to recall that there was some of controversy during this Government's initial period in

1107
office over politically biased appointments. Whether the allegations were well founded is another matter, but the Appointments Commission was set up to address that concern, and I applauded it.
Lord Warner: My Lords, will the noble Earl remember back to before 1997, when there was quite a lot of controversy, as I recall, about his government's appointments to NHS bodies? It is a bit rich to take a genuine effort by this Government to take many of these appointments out of the political arena and say that that action was simply a result of concerns about this Government's behaviour.
Earl Howe: My Lords, I am the first to acknowledge that every government want to ensure that there are people in important public positions who are broadly sympathetic to the drift of government policy. Of course that is so. However, the Minister is being a little disingenuous; there is simply no comparison, if one looks at the statistics on politically biased appointments in the current Government's time and in that of the previous Government. Yes, of course Conservatives were appointed to some positions, but there was much more of a balance in those days than a few years ago. I say no more than that.
Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Earl for giving way. Is he really saying that the last government did not exercise political bias in their appointments to NHS bodies? My Lords, they did. They appointed a considerable number of Conservatives. Very few people who were identified as Labour Party members and supporters were appointed.
Earl Howe: My Lords, I have just said that of course Conservatives were appointed to key positions, but it is a matter of degree. That is the point. The blatant attempt to bias the process when this Government came to power was there for all to see. I, for one, welcomed the creation of the Appointments Commission as a means of getting us away from all that and, to a very great extent, it has done so.
The Minister rejected the analogy I attempted to make with the Bank of England, and suggested that CHAI and CSCI were simply not the kind of non-departmental public bodies which could accommodate the freedoms that I propose in these amendments. Again, I simply do not agree with him. The fact that they are public servants—
Lord Warner: My Lords, is the noble Earl aware that the chairman of the Audit Commission has his salary set by the Secretary of State? Is the noble Earl suggesting that the Audit Commission chair is not independent because his salary is set by the Secretary of State?
Earl Howe: My Lords, I do not feel the need to comment on that. The analogy I was making was with the Governor of the Bank of England. He is a public
1108
servant, as much as the chairman of CHAI or of CSCI will be. There is a good argument for saying that if we want to make these bodies as independent and politically unbeholden as possible, we should look very seriously at the simple device of allowing these bodies to set salaries, with the veto of the Secretary of State. I am not suggesting that there should not be such a veto.
As the amendments make very clear, the Secretary of State would have a say in this. He would be able to disagree with whatever proposals he did not like, and I do not see what is wrong with that. It would be a public disagreement, but I do not see why that is undesirable.
As to the freedom to borrow, I hope I have made it clear that these proposals are simply designed as a safety valve. They would not be used in the routine course of events for capital requirements, but they could be used if needed. Again, I think that is a sensible proposal; each body would have to exercise its judgment responsibly and would be audited and examined on the strength of that judgment. It is not as if no controls or checks would be made on them.
I think we have reached an important point of disagreement between this side and the Government, and I would like to test the opinion of the House.
4.8 p.m.
On Question, Whether the said amendment (No. 272) shall be agreed to?
Their Lordships divided: Contents, 155; Not-Contents, 113.

Division No. 2

CONTENTS

Addington, L.

Cumberlege, B.

Alexander of Weedon, L.

Dholakia, L.

Allenby of Megiddo, V.

Dixon-Smith, L.

Alton of Liverpool, L.

Dundee, E.

Anelay of St Johns, B.

Eden of Winton, L.

Arran, E.

Elles, B.

Astor of Hever, L.

Elliott of Morpeth, L.

Attlee, E.

Emerton, B.

Avebury, L.

Ezra, L.

Barker, B.

Falkland, V.

Beaumont of Whitley, L.

Fearn, L.

Biffen, L.

Feldman, L.

Blackwell, L.

Finlay of Llandaff, B.

Blatch, B.

Fookes, B.

Bowness, L.

Fowler, L.

Bradshaw, L.

Gardner of Parkes, B.

Bridgeman, V.

Gilmour of Craigmillar, L.

Brittan of Spennithorne, L.

Glentoran, L.

Brooke of Sutton Mandeville, L.

Goodhart, L.

Brougham and Vaux, L.

Gray of Contin, L.

Byford, B.

Griffiths of Fforestfach, L.

Campbell of Alloway, L.

Hamwee, B.

Carnegy of Lour, B.

Hannay of Chiswick, L.

Chalfont, L.

Harris of Richmond, B.

Clement-Jones, L.

Hayhoe, L.

Coe, L.

Henley, L.

Colville of Culross, V.

Higgins, L.

Cope of Berkeley, L. [Teller]

Hodgson of Astley Abbotts, L.

Craigavon, V.

Holme of Cheltenham, L.

Crickhowell, L.

Hooper, B.

Cuckney.L.

Howarth of Breckland, B.

1109

Howe, E.

Reay, L.

Howe of Aberavon, L.

Redesdale, L.

Howe of Idlicote, B.

Rees, L.

Howell of Guildford, L.

Rees-Mogg, L

Hunt of Wirral, L.

Rennard, L.

Jenkin of Roding, L.

Roberts of Conwy, L.

Kimball, L.

Rodgers of Quarry Bank, L.

Kingsland, L.

Roper, L.

Kirkham, L.

Russell, E.

Laing of Dunphail, L.

Russell-Johnston, L.

Lamont of Lerwick, L.

Ryder of Wensum, L.

Listowel, E.

St. John of Bletso, L.

Liverpool, E.

St John of Fawsley, L.

Lucas, L.

Saltoun of Abernethy, Ly.

Macfarlane of Bearsden, L.

Sandberg, L.

MacGregor of Pulham Market,

Scott of Needruun Market, B.

L.

Seccombe, B. [Teller]

Mackay of Clashfern, L.

Sharp of Guildfbrd, B.

Maddock, B.

Sharpies, B.

Marsh, L.

Shaw of Northstead, L.

Masham of Ilton, B.

Shutt of Greetland, L.

Mayhew of Twysden, L.

Skelmersdale, L.

Miller of Chilthorne Domer, B.

Slim, V.

Miller of Hendon, B.

Smith of Clifton, L.

Molyneaux of Killead, L.

Stewartby, L.

Monro of Langholm, L.

Stoddart of Swindon, L.

Montrose, D.

Strange, B.

Mowbray and Stourton, L.

Tanlaw, L.

Moynihan, L.

Taverne, L.

Murton of Lindisfarne, L.

Tenby, V.

Newby, L.

Thomas of Gresford, L.

Newton of Braintree, L.

Thomas of Walliswood, B.

Noakes, B.

Thomson of Monifieth.L.

Northesk, E.

Tope, L.

Northover, B.

Tordoff, L.

O'Cathain, B.

Trefgarne, L.

Onslow, E.

Trumpington, B

Park of Monmouth, B.

Vivian, L.

Parkinson, L.

Wade of Chorlton, L.

Perry of Southwark, B.

Wakeham, L.

Peyton of Yeovil, L.

Wallace of Saltaire, L.

Phillips of Sudbury, L.

Walmsley, B.

Pilkington of Oxenford, L.

Walpole, L.

Plumb, L.

Warnock, B.

Quinton, L.

Weatherill, L.

Rawlings, B.

Wigoder, L.

Razzall, L.

Wilcox, B.

NOT-CONTENTS

Acton, L.

Crawley, B.

Ahmed, L.

Davies of Oldham, L. [Teller]

Alli, L.

Derby, Bp.

Amos, B. (Lord President)

Desai, L.

Andrews, B.

Dixon, L.

Archer of Sandwell, L.

Dormand of Easington, L.

Ashton of Upholland, B.

Dubs, L.

Barnett, L

Eatwell, L.

Bassam of Brighton, L.

Elder, L.

Berkeley, L.

Evans of Temple Guiting, L.

Bernstein of Craigweil, L.

Evans of Watford. L.

Billingham, B.

Falconer of Thoroton, L. (Lord

Blackstone, B.

Chancellor)

Borrie, L.

Farrington of Ribbleton, B.

Bragg, L.

Faulkner of Worcester, L.

Brooke of Alverthorpe, L.

Filkin, L.

Brookman, L.

Fitt, L.

Burlison, L.

Gale, B.

Campbell-Savours, L.

Gavron, L

Carter, L.

Gibson of Market Rasen, B.

Christopher, L.

Golding, B.

Clarke of Hampstead, L.

Goldsmith, L.

Clinton-Davis, L.

Gordon of Strathblane, L.

Cohen of Pimlico, B.

Goudie, B.

Corbett of Castle Vale, L.

Gould of Potternewton, B.

Craig of Radley, L.

Gregson, L.

1110

Grocott, L. [Teller]

Mishcon, L.

Harrison, L.

Mitchell, L.

Haskel, L.

Morgan, L.

Hayman, B.

Morris of Aberavon, L.

Hilton of Eggardon, B.

Morris of Manchester, L.

Hogg of Cumbernauld, L.

Murray of Epping Forest, L.

Hollis of Heigham, B.

Ouseley, L.

Howells of St. Davids, B.

Patel of Blackburn, L.

Hughes of Woodside, L.

Paul, L.

Hunt of Chesterton, L.

Plant of Highfield, L.

Hunt of Kings Heath, L.

Ponsonby of Shulbrede, L.

Irvine of Lairg, L.

Prys-Davies, L.

Janner of Braunstone, L.

Rendell of Babergh, B.

Jay of Paddington, B.

Richard, L.

Joffe, L.

Roll of Ipsden, L.

Jones, L.

Rooker, L.

Kennedy of The Shaws, B.

Sainsbury of Turville, L.

King of West Bromwich, L.

Sheldon, L.

Kirkhill, L.

Simon, V.

Lea of Crondall,L.

Stallard, L.

Lipsey, L.

Stone of Blackheath, L.

Lockwood, B.

Symons of Vernham Dean, B.

Lofthouse of Pontefract, L.

Temple-Morris, L.

Macdonald of Tradeston, L.

Thornton, B.

McIntosh of Haringey, L.

Tomlinson, L.

McIntosh of Hudnall, B.

Turner of Camden, B.

MacKenzie of Culkein, L.

Warner, L.

Mackenzie of Framwellgate, L.

Warwick of Undercliffe, B.

Mason of Barnsley, L.

Whitaker, B.

Massey of Darwen, B.

Wilkins, B.

Merlyn-Rees, L.

Williams of Elvel, L.

Resolved in the affirmative, and amendment agreed to accordingly.
4.19 p.m.
Earl Howe: My Lords, it would be for the convenience of the House if I made clear a decision that we reached during the Division. We shall not press the amendments relating to financial freedoms; the only amendments that we shall press are the ones for which there is a wider consensus in the House and which relate to the independent appointment. I believe that the House has agreed to Amendments Nos. 272, 278, 407 and 408. I shall not move any of the other amendments.
[Amendments Nos. 273 to 277 not moved.]
Schedule 7 [CSCI: supplementary]:
Earl Howe Earl Howe moved Amendment No. 278:
Page 135, line 29, leave out "Secretary of State" and insert "body specified in section 183(2C)"
On Question, amendment agreed to.
[Amendments Nos. 279 to 282 not moved.]
Clause 44 [Quality in health care]:
Baroness Barker Baroness Barker moved Amendment No. 283:
Page 16, line 20, at end insert "; and
(c) services to support independent living and rehabilitation"
The noble Baroness said: My Lords, we return to an issue on which we spent some time in Committee regarding the duties of the health service vis-à-vis services which are designed to bring back and facilitate independent living. The latter amendments in the group—Amendments Nos. 354, 355 and 356— concern the lack of clarity regarding the role of the NHS and the inspection of some long-term conditions.
When we debated this matter in Committee the noble Lord, Lord Warner, gave one of the most surprising and disappointing responses that we have had during the whole of the proceedings on the Bill. He questioned the role of acute trusts and foundation trusts in relation to rehabilitation and prevention. I greatly appreciate the information that the noble Lord supplied to noble Lords on this side of the House in his letter of 4th November to the noble Baroness, Lady Noakes. In that letter he greatly clarified the situation as he pointed out—perhaps more fully than he could in Committee—that he believed that the bulk of the responsibility for rehabilitation and independent living lay with primary care trusts. However, in so doing, the noble Lord led us to the exact problem. In our original amendments we did not—and we are not doing so in these—refer to the role of primary care services or, indeed, community services. We referred specifically to the role of foundation trusts and acute services regarding rehabilitation and independent living.
During our previous discussion the noble Baroness, Lady Finlay of Llandaff, talked about the role of acute trusts in physiotherapy. A great many services that, historically, were carried out in the premises of acute hospitals are no longer dealt with in that way. A number of services, including cancer services, are now carried out in community-based premises as opposed to acute hospital premises. With the growth in intermediate care in particular—that is an area that I know particularly well, but there are others—an increasing number of people who for one reason or another would have received treatment in acute hospitals now receive similar treatment in other settings. It is the responsibility of the acute services provider, and of the inspection regimes under which the providers provide those services, that we seek to establish. That is perhaps clearer in the later amendments in the group which concern drug and alcohol services. Another area would comprise the role of medical services in care homes and in nursing care homes.
The amendments are tabled because there is a huge lack of clarity about exactly how CHAI and CSCI will work in relation to these services, which have moved from their typical location but which continue to be medical services run alongside social services. The responses that we received in Committee served, if anything, to highlight the confusion but they did not add any clarity. That is why we present them again for further debate today. I beg to move.
Baroness Finlay of Llandaff: My Lords, I support the amendment. I agree with the noble Baroness, Lady Barker, that there certainly was some confusion when the matter was discussed in Committee.
There used to be a clear dividing line between health and social care particularly for those patients who are cared for at home in the community. However, some very complex clinical scenarios now exist where independent living and rehabilitating someone back into society can occur only where there is a very high
1112
quality, highly specialised outreach service from the hospital combined with other infrastructure services to provide support in the patient's own home. A good example of that is patients who require intermittent positive pressure ventilation at night. The respiratory team will set that up and will be based in the acute hospital. The patient may be at home and may even be at work during the day but needs to be on ventilation over night and requires careful monitoring and support with the equipment, particularly if he or she has had a tracheotomy.
There is an increasing shift towards providing services where the patient wants them with more and more outreach services. The Bill's present wording seems to suggest that everything stops when someone has been treated. However, these patients have a continuum of rehabilitation and supportive care that often continues right through the rest of their lives. In some cases the acute medical infrastructure—I use the word "medical" in the broadest sense meaning all the medical health services—can later be withdrawn and the patient cared for with more of a social services infrastructure of support.
I have a slight concern that the amendment should contain the word "health" before "services" to make it read,
"health services to support independent living and rehabilitation".
That might remove some of the confusion. That is my only reservation with the wording of the amendment. I completely support its spirit.
Baroness Howarth of Breckland: My Lords, my noble friend Lady Finlay illustrated why I find it difficult to support the amendment, without the need for further clarification. When services move into the community many people would rather have a service that does not have a particular medical orientation. What they want to receive is a medical service in a social or community setting. One of the great difficulties that has arisen in providing services, for example, in old people's homes where people are heavily dependent on care, and with adult disabled people—I declare an interest as the president of John Groom's Association for Disabled People, so I have some knowledge of these kinds of services—is making sure that you have the right balance of care.
I do not underestimate the difficulty of making decisions as regards which camp they fall in. My great concern is that they do not all become health services with medical orientation, thus losing some of the social care issues that come with rehabilitation.
4.30 p.m.
Lord Warner: My Lords, we have already discussed the issues raised by Amendments Nos. 283, 354, 355 and 356 in Committee, and I wrote to Peers on them on 4th November. With respect to Amendment No. 283, I explained that we did not believe that we should change the existing definition of healthcare in such a way, because to do so would suggest that services concerned with rehabilitation and independent living were generally provided by NHS bodies. In fact, they

1113
are most frequently provided by local authorities as social services, with health services provided as ancillary to those services. I totally agree with the points made by the noble Baroness, Lady Howarth.
I want to be absolutely clear that I am not suggesting in any way that such services will always fall within the definition of social care or always be regulated by CSCI. The NHS also provides rehabilitation services and, where that is the case, those will fall within the definition of healthcare as services provided in connection with the treatment of illness, and will be subject to inspection by CHAI.
The terms "rehabilitation" and,
"services to support independent living",
used in the amendment are so broad that they could almost cover the entirety of adult social care. To amend the definition of healthcare as suggested would therefore give a misleading impression of the services to be dealt with by CHAI under the Bill, and those to be dealt with by CSCI.
I accept the point made by the noble Baroness, Lady Finlay of Llandaff, in terms of a continuum of care, and nothing that I say would seek to go against that. I shall give some examples to illustrate the point that I have been trying to make. In some cases, a discharge will be to onward rehabilitative care provided by the NHS. For instance, where an individual had recently had a limb amputated, they would be provided with ongoing pain management and rehabilitative services. Such services would be inspected by CHAI.
In other cases, a discharge might be made to a social care facility, where rehabilitation could take place. For example, a patient who had been admitted to hospital as a result of a fall might be discharged and provided with a care package to a sheltered housing facility. That facility would be subject to inspection by CSCI under the 2000 Act, even though there may be an element of healthcare such as community nursing in the care package. I am trying to illustrate that we want to see where the balance of effort lies in particular packages of care, always accepting that there will be a continuum of care. The definition in the Bill is appropriate.
Amendments Nos. 354, 355 and 356 were also tabled in Committee, and I return to the arguments that I made then. Services providing long-term care and treatment for drug and alcohol abuse are not providing acute medical intervention, as do hospitals, for people with those conditions. They primarily provide secondary care to aid recovery or manage ongoing secondary symptoms. Those facilities may have substantial input by nurses and allied health professionals, but have limited input from consultants or other doctors.
Nevertheless, those services are also providing substantial personal care for service users, including the most intimate forms of that care with toileting and bathing. In common with other care homes providing nursing input and personal care, those services should properly continue to be inspected by CSCI so that their
1114
welfare needs can be most appropriately met. CSCI will of course be able to seek assistance from CHAI where healthcare professional expertise is needed.
I understand the concerns highlighted by the noble Baroness, Lady Barker, about inconsistencies in registration for facilities providing services for long-term conditions and drug and alcohol abuse. We accept that in some cases the line between health and social care is very fine, and difficulties can occur around that line, regardless of where it is drawn. I agree that a consistent approach to registration should be taken, and CHAI and CSCI will work closely together and with providers to ensure such consistency of approach. However, the issue must be solved by working with the regulators themselves, rather than revisiting issues that were discussed, at length if I may say so, during the passage of the Care Standards Act in an attempt to redraw the boundary between health and social care.
The amendments will not solve the problem, but they could create new ones. They should not be pressed or they should be rejected.
Baroness Finlay of Llandaff: My Lords, will the Minister clarify for me that the inspection process for patients who have a lot of clinical input as well as a lot of social care input will be conducted only by CSCI? Alternatively, is he saying that, for patients for whom there are big outreach services from hospital, there would be a joint inspection process to make sure that there were not gaps in provision and that the patient did not miss out on high quality services on both sides of their spectrum of need?
Lord Warner: My Lords, I am saying exactly that— that the two inspectorates would work together, but who would lead would turn on where the balance of post-hospital care was being provided from. It would depend on whether there were, in effect, an outreach of the hospital or a transfer largely to the supervision of the social care agency.
Baroness Barker: My Lords, I thank the Minister for his answer, which served to strengthen my argument. There is still a tremendous lack of clarity about who will inspect medical services provided in the community. I agree with the noble Baroness, Lady Howarth, about the importance of social care and social rehabilitation. She and I have no argument on that at all. My concern remains about the quality of medical services, no matter how few or incidental they may be, to people cared for primarily in a social care service. I do not think that CSCI will ever be in a position to make clinical judgments about care of people in the community; that is the concern behind the amendment.
The comments of the noble Baroness, Lady Finlay of Llandaff, are helpful and have got us somewhere. Clearly we shall not get much further on the matter at this stage. We may not return to the issue, but professionals certainly will, time and again. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Earl Howe Earl Howe moved Amendment No. 284:
After Clause 44, insert the following new clause—
"STANDARDS

(1) The CHAI stall be the principal guardian of standards in the NHS and shall prepare and publish standards in relation to the provision of health care by and for English NHS bodies, Welsh NHS bodies and cross-border SHAs.

(2) The CHAI must keep the standards under review and shall publish amended standards whenever it considers it appropriate.

(3) The CHAI must consult the Secretary of State, the Assembly and such other persons as it considers appropriate before publishing a statement or amended statement under this section.

(4) The standards set out in statements under this section are to be taken into account by every English NHS body, every Welsh NHS body and every cross-border SHA in discharging its duty under section 45."

The noble Earl said: My Lords, in moving Amendment No. 284, I shall speak to Amendments Nos. 286, 287, 288, 333, 340 and 342. We come to an issue that, perhaps par excellence in this part of the Bill, points out the major gulf between the Government and ourselves, which is the question of who should carry responsibility for setting the standards in health and social care that CHAI and CSCI are to police. The Government say that if standards are not set by Ministers, that is an abrogation of ministerial responsibility and that, furthermore, it is wrong in principle for CHAI or CSCI to be both standard setters and the judges of whether those standards have been complied with.
I fundamentally take issue with those propositions. If there is one overriding problem with the NHS, it is the tendency of Ministers to second guess the clinicians and managers working in the service by setting them objectives that are, at root, political. They do it for understandable and well intentioned reasons, but it is a mistake. As the noble Earl, Lord Russell, shrewdly observed in Committee, benchmarks set for the NHS by politicians contain hidden clinical judgments, which politicians are in no position to make. If we are serious about de-politicising healthcare, Ministers have to stand back from the whole business of dictating targets and standards. They need to do that in order that the patient can be quite certain that the health service is being assessed, not in terms of what Ministers believe that patients should want, but in accordance with objective standards of quality devised by those professionally fit to devise them.
In making that case, I am not seeking to deny that the Secretary of State has a legitimate interest in the standards set in healthcare. He clearly does, and should be consulted accordingly. His views should count. Nor am I suggesting that CHAI and CSCI should not listen to anyone else in drawing up and interpreting the standards to which they work. Plenty of other people, not least patients themselves, have a legitimate role in that context. Clinicians, managers and voluntary organisations also have a role. But when we talk about who should have primary responsibility for the standards that operate, who should take ownership of them arid who should be their chief defender and promoter, there can be only one answer: the two professional bodies themselves.
In 1997, a standard was set for the NHS. That was to reduce waiting lists. That standard was no more sensible than that which was subsequently set by the Government, which was to reduce waiting times. Both those standards required clinicians and managers to do things that ran directly counter to their professional judgment. If CHAI and CSCI find themselves in a position where they are unable to defend to the hilt the standards they propound as being clinically and ethically well founded, they will not be seen as credible organisations. That is not to say that they should ignore the budgetary constraints within which the NHS must operate or set standards that are financially or practically out of reach. However, if the Minister were to speak to Sir Ian Kennedy, as I am sure that he has done, he would realise that Sir Ian has a clear idea of the domains of work in which CHAI will be engaged, and that those domains, which are relatively few, will embody the standards to which CHAI will work. I was dismayed when the Minister told me in Committee that the draft standards to be published later in the year would incorporate a multitude of subject areas. The Government seem to be in danger of making the same mistake as they have made for the past six years, which is to be far too prescriptive in their approach to healthcare.
I do not expect to persuade the Minister of my views, but I hope that other noble Lords will be persuaded. The work that we are discussing is directly comparable in its need for impartiality and professionalism to that of the Audit Commission. The idea that the standards to which the Audit Commission works should be set by politicians ought to fill us with horror. It is the same in this respect. CHAI and CSCI must be able to do their work without fear or favour, because only in that way will we fully trust them. I beg to move.
Lord Peyton of Yeovil: My Lords, I shall speak to my Amendments Nos. 285 and 287. I hope that the Minister will be a little more receptive than he was last Thursday, when he accused my noble friend, of all people, almost of obstructing the Bill, which was the last thing he was seeking to do. He was so ungracious that the only people who were indebted to him— although I do not suppose that they thanked him as cordially as they might—were the Opposition Whips. They enjoyed a successful vote largely due to some of the language that the Minister used.
The amendments reflect the muddle that the Government are in in having two horses, the Department of Health and CHAI. The Bill states that the Secretary of State "may" prepare and publish statements of standards. It is important that somebody should publish statements of standards. It would be difficult for practitioners to comply with requirements that have not been made absolutely clear to them. I notice that Clause 46, which deals with the standards that are to be set by the Assembly, states:
"The Assembly may prepare and publish statements".
It goes on to state:
"The Assembly must keep the standards under review".

1117
My amendment would put the Secretary of State under a clear duty to do that. The preparation and publication of statements of standards should not be carried out on a voluntary basis. It should be an obligation. Clause 45(2) states:
"The Secretary of State must keep the standards under review".
That is quite right, so why should he not be obliged to make them clear in the first place? I do not suppose that the Minister will accept the amendments, but they are tabled in the pious hope that he might perhaps be a little more receptive and not think that everybody on this side of the House is out simply to obstruct the passage of the Bill. We seek merely to help the Government. Some of us are hurt and upset that they appear to be as unappreciative as they usually are.
4.45 p.m.
Baroness Finlay of Llandaff: My Lords, the amendments are interesting because they draw out the distinction between clinical standards and service delivery targets. The latter are often called standards, but that is a misnomer.
Clinical standards are absolute. They are evidence based and they are the result of scientific inquiry— usually level one evidence from randomised control trials. Those standards are set within the context of national service frameworks. They are set according to NICE guidance; prescribing standards; the royal colleges' clinical standards; and the National Patient Safety Agency.
The second group are the targets: the service configuration standards, which vary according to political emphasis. They provide performance benchmarks such as waiting times. Clinical standards between England and Wales do not and cannot differ. It would be to fly in the face of scientific evidence to suggest that they could differ. However, performance standards inevitably will differ, because they will reflect policies, priorities, structures and circumstances on the two sides of the border. The Welsh Risk Pool, for example, has its own performance frameworks. The royal colleges' advice on service configuration will be interpreted slightly differently depending on the population to which it has to be applied. Service targets will arise from them that are within ministerial control.
I shall try to illustrate that difference with one clear example. The diabetes national service framework suggested that retinopathy should be detected early through a retinopathy screening programme. In Wales, that was instigated immediately, but there was a lag in England and Scotland. Nobody has disputed the clinical standard against which retinopathy should be screened, but the service targets varied on the two sides of the border. I am proud that England and Wales have now decided to follow the Welsh example.
That is a clear example of how distinct the clinical standards are. The amendments draw out that distinction and clarify that the guardian of the clinical standards cannot be within ministerial control. Those standards must relate to the bodies which conduct the background research and systematic reviews and
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which produce the hard, often irrefutable evidence that dictates the direction in which the service should go.
Baroness Carnegy of Lour: My Lords, I support my noble friend. I shall also take up the remarks of the noble Baroness, Lady Finlay. To a lay person, the distinction between the two sets of standards is sometimes blurred. I remember an announcement of the Minister of Health in the Scottish Executive about improving standards of cleanliness and asking everybody to wash their hands. I do not know if that is a clinical judgment. It is a grey area; it falls on the borderline.
I shall mention an aspect of the issue on which my noble friend did not touch, but which was prominent in the debate in Committee; that is, the effect on finance of decisions on standards. On the fourth Committee day, the Minister said:
"I was very interested in the noble Earl's view that one can let an inspection body set the standards, irrespective of the cost of funding those standards in the public arena. I suggest that that would be an interesting approach to budget-setting for any future Chancellor of an alternative government to the present one".— [Official Report, 16/10/03; col. 1135.]
The Minister was assuming that an improvement in standards would automatically be more expensive—or perhaps he was assuming it might be cheaper. If CHAI were setting the standards, it would not be able to change the budget because that would be the Minister's responsibility. As is illustrated by the hand-washing episode, not all improvements are expensive. It costs no more to wash your hands than not to wash them. It costs no more to clean the ward properly than to go around not cleaning it properly.
I do not want to trivialise the issue, but it is not right to assume that improvements in standards are bound to be more expensive. In any case, as my noble friend Lord Howe said, budget setting and standard setting would not necessarily be separated. An alteration in standards which would cost money would never be set by the chairman of CHAI without discussing the desirability with the Secretary of State. There would be plenty of consultation. I do not therefore believe that the money argument should apply.
There is not the smallest question but that the temptation is great for the Secretary of State to use announcements about standards here and there and at different times because a focus group has made a complaint or because the press has reported something and a comment needs to be made. It is used as a political tool. It has been by all governments and it always will be. That temptation would be greatly enhanced if the Secretary of State took all the decisions. It is desirable that CHAI should have this role and I hope that the House will see that argument.
Baroness Howarth of Breckland: My Lords, the amendment presents a huge temptation. To have standards and to be free from some of the political interventions of the National Care Standards Commission makes me want to vote for it. However, I have some real reservations.

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It can be an elephant trap for a commission to set its standards and be the keeper of those standards and it lets the Government off the hook. It is up to the Secretary of State and the government department to be clear about the policy drive. That must take us into the way in which the standards are being implemented.
It is crucially important that the responsibility for publishing standards is a joint one. As the noble Earl, Lord Howe, said, many of them are put together in consultation. However, there might be some differences in the way in which standards are set in CSCI and CHAI. I agree with my noble friend Lady Finlay that there is great confusion about clinical standards, which we use also in social care.
Targets and standards are distinctly different issues and we should be pressing the Government to clarify them. Frameworks and sets of standards are clearly set out and from those the targets emerge. As regards CSCI, once we have the standards we can get on with the targets and not be deflected by government intervention.
I find it difficult to support the amendment, although noble Lords will be able to hear from my hesitation that I am tempted by it. I would like to be able to set such standards but it is a temptation I should resist.
Lord Warner: My Lords, I am grateful for the noble Baroness's promise to resist temptation in this area. I was chided by the noble Lord, Lord Peyton, for being unappreciative of offers of help from the Opposition Benches to improve the Government's Bill—
Lord Peyton of Yeovil: My Lords, I did not say Opposition Benches; I said Opposition Whips.
Lord Warner: My Lords, perhaps I may reassure the noble Lord that I did not get much thanks from the Opposition Whips either. I do not propose to conduct a seminar, though the temptation is enormous, on standards criteria for meeting them and methodologies for rating those criteria. However, I must set out the Government's position on the issue, which is both principled and rational.
The report from the Office of Public Service Reform, published earlier this year, clearly sets out government policy on the respective roles and responsibilities for those involved in the inspection of public services. It remains our view, as stated in that report, that the role of Ministers and their departments is,
"to set standards determining how the service is to be delivered and to make sure effective performance management systems are in place".
It also remains our view that it is wrong for the bodies responsible for inspecting services, in order to ensure that they comply with standards, to be responsible also for setting those standards, as these amendments propose. Furthermore, it is also entirely wrong for the Government to abrogate their responsibility for setting the standards of care for NHS
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patients and those in receipt of social care to independent commissions. That would be the effect of these amendments.
It is not clear to me what noble Lords opposite are trying to achieve. Amendments Nos. 284 and 288 give the healthcare standards-setting role to CHAI, while Amendment No. 286 seems to go half way to trying to restrict the publication of healthcare standards to those that the Secretary of State,
"considers to be of considerable significance."
We on this side of the House do not believe that healthcare standards can be carved up in this way.
It remains our view that, as Clause 45 provides, it is for the government of the day to determine the standards and framework within which the NHS should operate and to set the budget commensurately. Setting the standards for health and social care provision enables the department to match performance expectations with funding. It would be entirely inappropriate, even irresponsible, to divorce the function of setting standards for the performance of public services from the function of determining the level of funding that those services should receive.
I must point out to the noble Earl that I had a number of interesting discussions with the chairman of CHAI. He is totally comfortable with the idea that it is for the government of the day to set standards and it is for him, as under the Bill, to propose the criteria. He has no problems with that approach, which the noble Earl seems to have.
The publication of standards by government is also a vital tool for ensuring the democratic accountability of health and social services. Were governments to be prevented from setting standards for health and social care, it is difficult to see how they could be held accountable to Parliament for the performance of those same services.
In our response to Sir Ian Kennedy's Bristol report, we undertook to ensure the development of standards for the NHS. This remains a core function for the Secretary of State deriving directly from the department's responsibilities for securing resources and delivering healthcare services of an acceptable level. This has been no secret. It is not as though we suddenly announced that approach. When the Government announced the setting up of CHAI in Delivering the NHS Plan, we stated there would be inspection against clear national standards committing the Secretary of State to publish such statements of standards and to keep these under review. We fully intend to fulfil this undertaking.
Well before CHAI takes up its responsibilities, we shall have draft NHS standards in the public arena for consultation with interested parties, including CHAI. I can assure the noble Earl that they will be considerably fewer in number than the 700 or so that we have at present and that were around under his government.
It is obviously desirable that the Secretary of State should continue to update the statements of standards from time to time—perhaps reflecting advice and guidance provided by CHAI, which we are enabling it

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to do under Clause 53. A similar power is provided to CSCI in relation to social care standards under Clause 75 of the Bill.
As I have already said, the power of defining the standards will be an inclusive one. As I made clear in Committee, earlier this year, during the preparation of the draft healthcare standards on which we consulted, the Department of Health held numerous workshops and meetings. Those were attended by key stakeholders drawn from patients, clinicians, representatives of professional and voluntary organisations, NHS managers and many others. The advice from all those individuals is helping in the development of the draft standards, which we shall publish.
For English local authority social services, there is a long and well tested route for setting out standards as guidance under Section 7 of the Local Authority Social Services Act 1970. Guidance often takes the form of national service frameworks. Guidance issued under Section 7 is well known and respected by local authorities and, in the past, has been used in the assessment of performance by the Social Services Inspectorate. CSCI will continue that practice and will be able to take an overview of the quality of all social care services using the guidance issued under Section 7 and national minimum standards when; applicable— for example, under the Care Standards Act functions and local authority adoption and fostering functions—issued under the Care Standards Act.
The national service frameworks issued under Section 7 guidance are well respected. The amendments would place conflicting duties upon social care providers, who would be under duties to take into account both the Section 7 guidance and the standards drawn up by CSCI. It is unclear what would happen if CSCI decided to issue different standards from those already in place under Section 7.
We believe that the amendments will create confusion among providers and hinder the delivery of effective standards. We consider the present structure of the Bill to be appropriate with the Secretary of State setting standards and CHAI providing the criteria, which ultimately the Secretary of State must approve to ensure that the criteria are consistent with the standards set for the National Health Service.
5 p.m.
Earl Howe: My Lords, this has been a very interesting debate. I am grateful, not for the first time, for the comments made by my noble friend Lord Peyton in my defence. I am also very grateful to the noble Baroness, Lady Finlay, for her helpful comments, particularly those which sought to point out the distinction between standards and targets. I thank my noble friend Lady Carnegy for her wise observations on the financial effects of standard setting.
The noble Baroness, Lady Howarth, made a characteristically thoughtful intervention. I believe her hesitation would be understandable if we were talking about a few key clinically based standards emanating
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from government. Like her, I have less of a problem with that notion. The trouble is that we are likely to be considering a large number of standards, many of which may well be quite prescriptive and more appropriately classified as targets.
I listened carefully to the Minister's warnings about the amendments and the comments of other noble Lords. In the light of those, I have decided not to press the amendments today as I want to reflect further on the whole matter. I cannot guarantee that I shall not return to this issue at Third Reading but, for the time being, I believe it is appropriate that I withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 45 [Standards set by Secretary of State]:
[Amendments Nos. 285 to 288 not moved.]
Clause 46 [Standards set by Assembly]:
Earl Howe Earl Howe moved Amendment No. 289:
Page 17, line 3, at end insert "other than health care provided by English NHS bodies"
The noble Earl said: My Lords, in moving Amendment No. 289, I shall speak also to Amendments Nos. 324, 329 and 332. In Committee, we had a number of debates which drew attention to what one might term the "cross-border impact" of the Bill—that is, its effect on Wales as distinct from England and how, if we are not careful, one country will be directly affected by the provisions in the Bill which apply to the other country.
I admit that some of the amendments tabled in Committee were designed more to make a point about the perverse consequences of devolution than to offer up constructive answers to those problems. Nevertheless, the problems remain, and I regret to say that I do not believe that our debates thus far have resolved them.
The first issue relates to the standards which are meant to apply in English hospitals which treat patients under a contract from a Welsh commissioning body. On that issue the Minister said:
"In cases where English bodies provide healthcare to Welsh patients, they will be acting, in effect, as sub-contractors, as they always have done. As with any other contract, Welsh commissioning bodies would expect to be able to set the contract conditions, which, in this case, would be the standard to which healthcare is to be provided. In the same way, Welsh bodies contracting with English commissioning bodies to provide services to English patients in Wales would expect those services to match the standards set by the Secretary of State and CHAI".— [Official Report, 16/10/03; col. 1145.]
The question that arises from those statements is this: what will be the difference between the standards in force on each side of the border? The Minister said that, in practice, there would not be any difference. But she went on to say that in Wales things may well be done differently in an organisational sense and in relation to the priorities set there. She cited the example of more work being done through the medium of Welsh. Therefore, Welsh health bodies would be expected to work to a suite of standards, as I believe she put it—not simply clinical standards but others as well.
That is where the difficulties arise. If it is the case that different standards are to operate on either side of the border, English hospitals which are located near the border with Wales and which treat Welsh patients will have two sets of standards in force—the standards set by CHAI and those set by the Welsh Assembly. I submit that that is not a sensible way to proceed.
Without any disrespect to Wales and its right to devolution in health matters, Wales should not be in a position to impose Welsh priorities, Welsh organisational standards or Welsh national service frameworks on English providers. If those in Wales attempt to do so, confusion will reign. A patient in one bed will be eligible for a different standard of treatment from the patient in the next bed with the same complaint. Clinicians will be expected to work to standards of which they cannot take ownership.
If that happens, how is the delivery of services to be assessed, and by whom? We cannot have two inspectorates, one from each side of the border, visiting the same English hospitals; nor can we sensibly ask the Welsh Assembly to delegate its overseeing role to CHAI because CHAI would be placed in the impossible position of having to police standards to which it did not itself subscribe. Yet one or other of those is the logical consequence of the Bill as it stands.
I stress again that in no sense am I seeking to turn back the clock on devolution. Let the Welsh Assembly decide on the appropriate standards and priorities for Wales. But, the moment we allow that jurisdiction to spill over into England, even by means of cross-border commissioning arrangements, we shall introduce unnecessary and inappropriate burdens that will do nothing but waste resources and place professional people in difficulties. The rule should be that if we have Welsh devolution, as we do, then its force should be felt in Wales and nowhere else. I hope that the Minister can be a little more reassuring on these issues than she was on the previous occasion. I beg to move.
Baroness Finlay of Llandaff: My Lords, I quake when I hear the noble Earl, Lord Howe, describe the differences between England and Wales. Offa's Dyke is not a Berlin Wall; it is an administrative boundary which is permeable and across which patients flow in both directions. I shall return to the figures of patient flow.
Because of that flow, the Assembly inspectorate, which will be Health Inspection Wales, and CHAI must co-operate and collaborate. I have already outlined why there can be no difference in clinical standards between England and Wales. However, there are, indeed, differences in the way that the service is being prioritised within Wales, and these are the standards which differ. For example, the National Assembly for Wales has set a 24-hour wait to be seen in primary care, not a 48-hour wait. Different priorities are set for emergency care. There is a priority for screening, immunisation and vaccination, all within Wales, and there are free prescriptions, which are meant to be for Welsh residents. I fear that there
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may be some abuse of that service at present but that will be addressed by a Question and not within this debate.
The demography in Wales differs from England, and across Wales there are vast differences. Overall 2 per cent more of the population in Wales are over 65, but in Cardiff 14 per cent are over 65 compared with 23 per cent being over 65 in Conwy. So, the Assembly has huge challenges in its devolved functions in delivering appropriate healthcare. Mortality rates vary enormously with Merthyr having a 50 per cent higher mortality rate than some rural areas.
I have said how the configuration of NHS systems differs. The local health boards took over the commissioning in Wales in March 2003. Health Commission Wales was established in April 2003 and commissioned specialist services. It commissioned £40 million worth of specialist services in England, which is 10 per cent of its total budget. It is specifically for that reason that there must be collaboration with CHAI and CHAI must be involved in setting thematic reviews; for example, of cancer services, diabetic services and coronary heart disease.
The reason that the Assembly needs to have an inspectorate is to have this strong focus on Welsh health priorities but it must in the process collaborate with CHAI. I hope that that is the spirit of the wording of the amendments tabled in my name. In Wales we have community health councils, which are able to identify gaps in provision. The Welsh NHS structure needs to be considered. Assembly Ministers also need to be able to respond to the intense scrutiny they are now under through robust, transparent, thorough and speedy reviews that can withstand that scrutiny.
I shall move on to why the chair of an inspection service in Wales must be independently appointed. The appointment of the head of Health Inspection Wales should be by an independent process. I understand that the Minister should not be able to veto the appointment of the individual but only the whole process and require that it starts again. Health Inspection Wales must have editorial control over its reports and those reports must go simultaneously to the Minister for Health and Social Services in Wales and to the Assembly Committee for Health and Social Services. They would also go simultaneously to CHAI.
The director should be accountable to a senior assembly director, who is not the director of the NHS in Wales and should have right of independent access to the Ministers and the Assembly Committee for Health and Social Services. Complaints should be dealt with by the Assembly complaints procedure and the Ombudsman. Delegation of functions will be through the permanent secretary, not the director of NHS in Wales.
Formal protocols are required for working between Health Inspection Wales and other parts of the Assembly, and formal agreements are required for working collaboratively between Health Inspection Wales and CHAI because of the cross-border flows.

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The inspectors should be made up of permanent inspectors and lay assessors. I hope that there will be an exchange scheme within the NHS within the whole of the UK including exchange with inspectors in the NHS Quality Improvement Scotland so that we establish methodologies and robust cross-border inspections as patients move across the borders.
For Health Inspection Wales the work programme should be generated by them and signed off by the Minister. Within Wales, co-operation and co-working needs to be with other bodies, such as the Audit Commission, the Care Standards Inspectorate for Wales and Social Services Inspectorate for Wales, all working with the community health council. That means that Health Inspection Wales will take over inspecting all services which deal with patients in Wales, including those that have home care teams that are currently subject to inspection by other departments. I am not sure that the noble Earl, Lord Howe, is aware that some teams have not been subject to health service inspections at present and have been inspected by bodies such as weights and measures, which is completely inappropriate. Health Inspection Wales will address all of that within Wales. However, when we come to the cross-border flows it must work collaboratively with CHAI as part of the contract monitoring process.
The simultaneous inspections will look at clinical and financial performance by all providers and that needs to be wherever the patients are cared for. The information from that process will be in the public domain and any inspections and information obtained by Health Inspection Wales will be fast-tracked back to CHAI.
I turn to the data. Last year 31, 500 Welsh patients were cared for by English providers; 20, 000 of whom were elective and 11, 500 emergency treatment patients. However, the flow is also in the other direction. There were 11, 500 English patients treated in Wales; 2, 800 electively and 8, 700 as emergency patients. So to try to separate the way that patients are cared for across Offa's Dyke does not become feasible.
The cost of Health Inspection Wales will be contained within the current envelope of £3.1 million and the collaboration should meet the criticisms of the noble Baroness, Lady Noakes, raised in Committee, that the Secretary of State needs advice through CHAI. Health Inspection Wales reports which are on the web will certainly be immediately available to everyone. But the collaboration that must be established—I sought to provide for that in Amendment No. 330 tabled in my name—is to ensure that the minutiae of detail of intelligence that is available to Health Inspection Wales would be fast tracked into CHAI through their collaborative working arrangements and they would develop joint methodologies.
The amendments standing in my name support how the inspectorates within Wales are driven by the Assembly but also support collaborative arrangements in both directions across the administrative divide between the Assembly and the Department of Health.
5.15 p.m.
Baroness Carnegy of Lour: My Lords, before the noble Baroness sits down, is she saying that a hospital surgeon in a given hospital might have to operate different standards depending on whether a person came from Wales or England? That sounds as if it would be very difficult.
Baroness Finlay of Llandaff: My Lords, I am grateful to the noble Baroness, Lady Carnegy, for raising the question and for the opportunity to clarify it. No, the clinical standards are absolute. The clinical standards to which the patient must be subject will be the same wherever the patient is but the way that the service is delivered and configured is different, particularly as regards community care. For example, patients who receive care in England for a transplant will be transferred back into Wales for their ongoing care and support. Protocols need to be established between providers in Wales and England concerning the point at which referral back to the English service is triggered and about what is delivered and conducted within Wales so that patients will receive long-term care close to their home. However, acute management, for example, of transplants, or specialist paediatric services, will be conducted under the contract of the specialised commissioning services within this £40 million envelope. The contract monitoring processes need to check that the flow of care on both sides of the border does not mean that patients hit a gap when they transfer from the English provider back to Wales.
Lord Thomas of Gresford: My Lords, I support the amendments in the name of the noble Baroness, Lady Finlay of Llandaff. Generally speaking, we who live in Wales are very satisfied with the quality of care we receive if we have to go to English hospitals, which happened to me a year or two ago.
Perhaps I may illustrate one problem that might arise. About 12 months ago it emerged that Welsh patients were placed at the end of the waiting list in the Robert Jones and Agnes Hunt Orthopaedic Hospital in Oswestry. The result was that some 30 or 40 patients from Wales exceeded the time limits that everyone was striving for. The reason given was that the hospital was receiving less per patient from Wales than it received from the English authorities. That is the kind of issue that must be ironed out. I am therefore very happy to support placing proposals for collaboration on the face of the Bill, particularly Amendment No. 330, which ensures that there must be collaboration with CHAI on cross-border issues.
I speak only as a Welsh resident receiving care in England, but I am sure that examples could be found in the opposite direction. It is important that clinical standards remain the same on both sides of the border and that a proper inspection process ensures that that is so.
My second point is that I am very happy that the noble Baroness should seek to place in the Bill an absolute commitment that recognises the principle of devolution. Of course, the Welsh Assembly is in charge of health issues in Wales. If it commissions reviews, it is

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only right that the people who carry out those reviews should report directly to the Assembly. The Assembly is directly accountable to the people of Wales, who have elected its Members. That direct link should be made.
I hope that the Minister will be generous in his response on this matter, despite the fact that Wales defeated England yesterday in Brisbane in the Rugby World Cup. I know that England scored more points, but that is really not the issue. I hope he recognises who won that game.
Baroness Andrews: My Lords, it is always good to start by welcoming a moral victory. I am absolutely in agreement with the noble Lord on that.
I am happy to respond to this group of amendments, which have been illuminated forensically by the noble Baroness, Lady Finlay, and at a personal level by the noble Lord, Lord Thomas of Gresford. It was useful to have some sense of the breadth of the issue. I welcome and appreciate the remarks of the noble Earl, Lord Howe, about devolution.
We had a very lively debate on this issue in Committee. This group of amendments goes very much to the heart of the issue which we addressed at earlier stages. The amendments revolve around the functions that the Bill confers on the National Assembly for Wales to set standards under Clause 46 and, more importantly in a way, against those standards, to conduct reviews and investigations of health services provided by English hospitals for patients from Wales.
In the light of what I shall say a little later, I will not at this stage pursue in any detail the debate on standards. In her analysis, the noble Baroness, Lady Finlay, has covered that issue. I would prefer now to talk about our response to some of those issues. It is both logical and proper, as noble Lords have said, that the Assembly, having commissioned services from organisations across the border, should be given the powers to ensure that they are being provided. This is not a unique or unusual power. It is identical to that given to CHAI under Clause 51, which gives CHAI the equivalent power in relation to services provided for English patients in Wales.
That is separate from the additional and very welcome function given to CHAI to conduct thematic reviews of particular types of healthcare—for example, for cancer, chronic heart disease and so on, as the noble Baroness, Lady Finlay, said—across England and Wales.
In Committee, noble Lords were concerned—and I understand their concern—about the possibility that the Assembly might choose to exercise its powers unreasonably, unhelpfully or inefficiently or that it might undertake reviews that conflict with or duplicate those being undertaken by CHAI. Amendments Nos. 289 and 234, which have been tabled by the Noble Earl, Lord Howe, seek to eliminate the issue by denying the Assembly the power to undertake those reviews under Clause 68 and consequently to deny the Assembly the power to enter premises in England.
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We understand the concerns about possible duplication or the lack of co-ordination. We also understand that there is a need for co-operation and, indeed, collaboration between the Assembly and CHAI. Obviously they would collaborate on the thematic reviews and, as the noble Baroness, Lady Finlay, said, it is very important to ensure that CHAI has all the relevant data and information in that respect.
I was slightly disappointed that the assurances that I gave here, and which were given in the other place, did not satisfy noble Lords. Those assurances were that the clear duty which Clause 141 places on the Assembly and CHAI to collaborate would ensure that such conflict did not arise. In fact, we have previous examples of collaboration. I refer briefly to the negotiation between the Community Health Councils—CHCs—and patients forums across the borders. We have some precedents there.
As the noble Baroness, Lady Finlay, said, the flow of care is the important point. Given that we want cross-border arrangements to flourish, the duty of partnership, co-operation and collaboration should entail the flourishing of fundamental arrangements regarding adequate flows of data and information, data sharing, co-ordination of timing and scope, the relative priority and nature of reviews and the joint methodologies referred to by the noble Baroness. All of that should help to ensure that there is no duplication of work. It should therefore follow, for example, that inspections across the border by Health Inspection Wales are generally less frequent and more narrowly focused. Collaboration also covers the practical processes for improvement and redress. It would involve agreeing the mechanisms for dealing with reports of concerns about quality and safety.
It is of the greatest importance that the Assembly has the capacity to establish the effectiveness of local Welsh commissioning with regard to the expectations of the local health board, the medical staff and the patients themselves. I am grateful for the support given by the noble Lord, Lord Thomas of Gresford, and by the noble Baroness, Lady Finlay, on the noble Earl's amendment. Without that capacity, which reflects local and expert knowledge, commissioning in Wales would inevitably be a less reliable and less responsible process.
I would suggest to noble Lords that taking a hatchet to the Assembly's functions is not the way to proceed. Noble Lords are concerned that the Assembly might not exercise its function in a way that meshed well with the exercise of the identical powers of CHAI. The answer to that is not to remove the powers, but to improve their operation.
In that spirit, I am prepared to reflect further on this issue and to return to it at Third Reading. I shall consider in particular whether the duty of co-operation between the Assembly and CHAI in Clause 141—which is rightly identified by the amendment of the noble Baroness, Lady Finlay, as the key to this particular issue—might be strengthened to place on

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them a specific requirement to collaborate, particularly on cross-border reviews, perhaps with an emphasis on avoiding unnecessary duplication.
In the light of that assurance I hope that the noble Baroness will be prepared not to press her amendment. I should perhaps add that I understand that the Assembly fully intends to have a memorandum of understanding. That will cover, for example, information and data from Wales which might be included in an annual report on the state of the NHS in England and Wales; national performance data to be published by CHAI; collaborative working on national reviews of England and Wales; and collaborative working on cross-border CHAI reviews. I hope that noble Lords will be greatly reassured by that.
Perhaps I can briefly turn to Amendment No. 325, in the name of the noble Baroness, Lady Finlay. In Committee, the noble Baroness, Lady Noakes, made it very clear that she thought that it was wrong in principle that the review anđ investigation of healthcare services provided by English hospitals to patients from Wales should be carried out by a politically-controlled organisation—the Assembly. I recall that she also thought it was rather inefficient. Amendment No. 325 addresses that same issue by seeking to bolster the independence of the HIW. I hope that I can persuade both noble Baronesses that their concerns are unfounded. Amendment No. 325 is unnecessary. It would require any body that conducted a review of healthcare in Wales to report to the Assembly. In fact, only two bodies will be conducting such reviews.
CHAI has the function of conducting thematic reviews. Clause 50 places a duty on CHAI to publish a report of such reviews; Clauses 52 and 53 require CHAI to report to the Assembly any failings that it identifies. It can also conduct reviews of healthcare provided by Welsh NHS bodies—again it is under a duty to publish a report. As the noble Lord, Lord Thomas, said, most investigations in Wales will be conducted by the Health Inspectorate Wales, but that is not to say that that will be a purely introspective exercise.
During the past 20 years—and predating the devolution settlement—Wales has developed a range of independent inspectorates that are now responsible to the Assembly. I mentioned the Education Inspectorate Wales. I did not know that weights and measures were involved; that comes as something of a shock. There is also the Social Services Inspectorate Wales, the Care Standards Inspectorate Wales and so on.
HIW will enjoy the same operational independence and safeguards as existing inspectorates. That independence is assured by several Assembly protocols and procedures. For example, under Clause 68 it will be required to publish a report after conducting a review. The head of HIW will have editorial control of such reports—just as does the Social Services Inspectorate Wales. They will be
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provided simultaneously to the Minister for Health and Social Services and the Assembly's Health and Social Services Committee.
To ensure independence from political intervention, the head of the HIW—again, like the other inspectorates—will be accountable to a senior Assembly director, but will enjoy rights of independent access to the Minister for Health and Social Services. To return to the amendment, in all logic, as HIW will be part of the Assembly, it would be impossible and unnecessary to require it to report directly to itself.
On the chair of reviews, which is dealt with by the second part of the amendment, it would again be inappropriate to provide for that in the Bill, as the chair of reviews will in effect be the head of HIW, who will be a senior civil servant. Those appointments are conducted under Civil Service Order in Council 1995 rules, which involve open competition on merit, and so forth.
Those conducting the reviews and investigations for HIW will, like those on other bodies, be a mix of permanent and seconded peer inspectors and lay assessors. In addition to recruiting its own inspectors through open recruitment, the Assembly wants to establish an exchange scheme with other NHS inspection bodies, including CHAI and Quality Improvement Scotland.
I think that that in some way addresses the point about efficiency made by the noble Baroness. A duty to collaborate between CHAI and the Assembly in the exercise of cross-border functions would allow the sort of joint working and sharing of experience which maximises efficiency.
I have gone rather quickly through my response to the concerns raised, but I hope that it satisfied noble Lords on the issues and that they will not press their amendments.
5.30 p.m.
Earl Howe: My Lords, strictly speaking, the amendments tabled by the noble Baroness, Lady Finlay, address slightly different points from my amendments. I do not think that they cut across the points that I sought to make, but the Minister's welcome offer to reconsider the whole question of cross-border co-operation—which I am sure will be welcomed by the noble Baroness—also goes to the heart of the concerns that I raised. I therefore for my part thank the Minister for her offer. I am all for co-operation across the, border; I encourage it and do not belittle the force of Clause 141, to which the Minister drew our attention once again, but if at the end of the process of co-ordination and co-operation there are differences in standards, how will we deal with them?
Unlike the noble Baroness, Lady Finlay, I doubt that CHAI will be spending its time monitoring contracts. I do not see that as its central role. It is unfair on doctors and nurses to expect them to work to dual standards. That is a simple point. I am more than

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happy to accept that English patients in Wales should have to accede to what is on offer in Wales. There should be no problem about that.
So it is very welcome that the Minister will consider how to strengthen the provisions. I consider her offer to be more than sufficient reason to withdraw my amendment, and beg leave to do so.
Amendment, by leave, withdrawn.
Clause 47 [Introductory]:
Lord Peyton of Yeovil Lord Peyton of Yeovil moved Amendment No. 290:
Page 17, line 17, leave out subsection (1).
The noble Lord said: My Lords, this case can be put briefly, but the amendment is serious. Enough has already been said during our proceedings to suggest that the partnership between the department and CHAI will not be all that comfortable or loving a relationship. I hope that the Minister will give the matter his serious attention.
We must face a harsh fact that endures through all governments: they are readier by far to delegate than to trust. They invariably move, as they have in the Bill, to do what looks to them like the right thing, but then get worried and hedge round what they have done with unnecessary and tiresome restrictions which only ensure one thing: that their original purpose will be frustrated.
As your Lordships are aware, the department's role concerning standards is set out in Clause 45. It is for the Secretary of State to prepare standards. CHAI's role is defined in Clause 47. It,
"has the general function of encouraging improvement in the provision of health care by and for NHS bodies".
I hope that I am not being too slow, but I thought that that was and remains the function of the department. Subsection (2) states that CHAI will be particularly concerned with,
"availability of, and access to, the health care;… the quality and effectiveness of the health care;… the economy and efficiency of the provision of the health care; … the need to safeguard and promote the rights and welfare of children; and … the effectiveness of measures taken for the purpose of paragraph (d) by the body in question".
Surely, all those measures will remain the active concern of the department.
I do not find it easy to imagine the department saying, "Now that the Government have set up CHAI, we are content to leave it at that", and not be constantly looking over its shoulder with advice and instruction, which may not be all that welcome or helpful. It is in the nature of the beast that a department is readier to expand than to retract its frontiers. I hope that the Minister will consider whether there is a way to improve those two clauses. My amendment would merely leave out subsection (1) of Clause 47.I have not suggested an alternative form of words because I thought that the Government would prefer to do that.
As the Bill stands, there is every possibility of misunderstanding and conflict between the two bodies. I hope that the Minister will bear in mind
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patients' needs and interests—I am sure that he will want to—and the concerns of those who, from time to time, make somebody feel slightly better. On the whole, government departments have no particular talent for making anybody ever feel better, and I doubt whether CHAI will either. It is important that there should be no conflict or friction between the two bodies, although I fear that there will be. It would merely make life even more impossible for those at the sharp end who look after patients and make them feel better.
Whatever the Minister may have thought previously, I am not being frivolous in any way. It is more than likely that there will be much friction between the two bodies. I hope that, while the Government have the opportunity, the Minister will think carefully about the need to remove that possibility in so far as he can. I beg to move.
Earl Howe: My Lords, my noble friend Lord Peyton made some extremely powerful points, which I hope the Minister will consider carefully. Although my noble friend did not dwell long on Amendment No. 359, it reinforces the compelling argument advanced in Committee that, once the Bill comes into force, the NHS and the independent healthcare sector should be judged according to a uniform set of standards. There was a wide measure of agreement from all noble Lords who spoke in favour of that level playing field. Amendment No. 358, which I have tabled, focuses on that issue.
As I see it, the case rests on two main planks: the fact that both healthcare sectors will shortly fall under a single regulator, and the fact that in recent years the NHS has moved from being a monolithic managed service to being much more a healthcare system commissioned to provide services in the round, as the noble Lord, Lord Hunt, pointed out. In so far as the taxpayer can access state-funded care either through NHS facilities or the independent sector, it makes sense to ensure that, wherever a patient is treated, the care that he receives will be assessed against exactly the same benchmarks and standards. The concordat and the Government's policy to give patients greater choice in where they are treated are both factors that strengthen the case for having that consistency.
It emerged from our previous debate and it was pointed out by the Minister that it is not always possible or appropriate to have identical standards operating in both sectors. For one thing, the range of activities provided by the NHS is much greater than that in the independent sector. Some NHS standards will be irrelevant to a private hospital. Some of the minimum standards applicable to an independent hospital may not be quite suitable for an NHS hospital.
The amendments that I moved in Committee did not find favour with noble Lords. I accept that they were unrealistic, for the reasons that I have given. I have therefore reformulated the amendment so that, although it speaks of a timescale within which CHAI must apply a uniform set of standards, it allows CHAI

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some discretion in how it applies that uniformity by reference to what is both practical and relevant. That is a better formulation.
The Minister said that over time he expected a common set of standards to be developed for the NHS and independent healthcare providers. That was welcome, but I am sure that he will have picked up the sense from the Committee that "over time" was not a phrase that carried the degree of urgency that some of us sought. We may not be able to be as prescriptive about the timescale as I would like; nevertheless, it ought to be possible to estimate fairly clearly how long it will take CHAI to introduce a common regime. The Minister said that he would take the matter away and consider whether he could be a little more reassuring on the point. I very much hope that he can.
5.45 p.m.
Lord Clement-Jones: My Lords, I shall speak to Amendment No. 362, which is in many ways similar to the amendment to which the noble Earl, Lord Howe, has just spoken. Although they are in the same group, they are different considerations to those raised by the noble Lord, Lord Peyton.
Celebrations of the announcement that CHAI would inspect the independent healthcare sector and the NHS were premature given the sting in the tail regarding the two sets of standards. That was certainly our motive in moving a similar amendment in Committee. The Minister's reply is interesting. My construction is different from that of the noble Earl, Lord Howe—he thinks that the glass is half full, while I think that it is probably half empty. I did not understand the Minister's reply as the noble Earl interpreted it. It seemed that the Minister accepted more or less the case for a common set of standards. No doubt, this is where the Kremlinologists will have to come into play. He started by saying:
"It is not our intention that NHS care standards will totally subsume the national minimum standards for independent healthcare providers but we expect that over time a common set of standards"—
a common set of standards—
"covering both NHS and independent healthcare providers will be developed".—[Official Report, 20/10/03; col. 1385.]
I take it from that that there are common standards. Obviously, where independent healthcare providers do not provide particular services, they cannot be subject to standards, but common standards will apply where an independent healthcare provider chooses to provide a set of services that the NHS also provides.
I understand exactly what the Minister said about not having a prescriptive timetable. The interesting thing about the noble Earl's amendment and mine is that they are not prescriptive; effectively, they invite the Government to set down a timetable. I do not regard that as prescriptive. Surely, it is sensible to have a planning framework for the adoption of a common set of standards rather than giving people the impression, for example, that the common set of standards is being drafted, that it is just around the corner, or that it might be a long way off. The Minister has indicated at various times that a common set of
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standards is currently being drafted and that it is fairly realistic to expect that they will emerge sooner rather than later. I very much hope that he can shed more light at 5.50 p.m. than he was able to do at 10.15 p.m. in Committee.
Lord Warner: My Lords, I think that I am always better at 5.50 p.m. than at 10.15 p.m., so I hope that I can reassure the noble Lord. He does not need to be too worried about Kremlinologists; you do not need them in interpreting what Department of Health Ministers say.
Before responding to the amendments tabled by the noble Lord, Lord Peyton, I wish to reassure him that I do not think that there will be friction between CHAI and Department of Health Ministers, as he suggested. Early discussions with CHAI suggest that there will be a businesslike working relationship in which each side knows its different roles. I do not expect many problems in that area. The noble Lord seemed unduly pessimistic.
The noble Lord, Lord Peyton, also implied that there was a spirit of expanding territory by the Department of Health. I remind him that we have already committed ourselves to shifting the balance of power, with a reduction of 38 per cent in the number of staff in the Department of Health. That is hardly aggrandisement; if it is, it is inept. We are not starting from those positions.
Amendment No. 290 goes against a fundamental purpose of inspection. Wide public consultation by the Better Regulation Task Force and the Office of Public Services Reform suggested that inspection is valueless without seeking to secure improvement. The functions with which we are providing CHAI under the Bill will influence and improve healthcare. CHAI will identify and report areas of significant failure; issue annual performance ratings; work co-operatively with other inspectorates in health and social care to ease the burden of inspection on front line staff; and demonstrate to the public how the additional investment that we are making in the NHS improves healthcare. Although we continue to believe that CHAI could not but help to encourage improvement in healthcare as part of its day-to-day functions, we feel that subsection (1) should remain, as a clear signal to healthcare providers, patients and the public of CHAI's primary purpose.
We also reject Amendment No. 357. It is entirely proper that the Bill should state clearly that CHAI has a more general duty to keep the Secretary of State— who is, as we have said, accountable to Parliament for the regulation of the independent health sector— informed about the general provision and the availability and quality of independent healthcare provision. That is a significant role for CHAI, and I envisage that it will want to use all the information that it has to hand about the performance of independent healthcare providers to advise the Secretary of State of issues relating to the availability and quality of care. I remind noble Lords that such provision is, in many cases, also used by NHS patients.

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The National Care Standards Commission is already under a similar duty under the Care Standards Act 2000. Tellingly, the noble Lord offers no viable alternative as to who should take the function forward, once CHAI has subsumed the commission's independent healthcare responsibilities.
Amendment No. 359 would place a duty on CHAI to encourage the improvement of the quality of independent health services provided in England to a level similar to that achieved by organisations in the NHS. That is similar to the intention behind Amendment No. 358 and the new clause proposed in Amendment No. 362. In short, the amendments propose a convergence of the quality standards and criteria for monitoring standards applied to the NHS and local authority services with those applied to the independent sector under the Care Standards Act 2000. The amendments are unnecessary. I repeat what I said with regard to an earlier amendment: it is not for CHAI to set standards for the health service, as Amendment No. 358 proposes. That is a role for the Secretary of State, and Clause 45 makes that clear.
First, the standards applied to independent services and local authorities are, under the Care Standards Act, already consistent. So, for example, an independent care home or children's home provider has the same quality standards applied to it as a local authority provider. There is no substantial difference. Furthermore, the National Care Standards Commission regulates local authority providers and independent providers against the same criteria, when determining whether standards are being met. That will remain the basis upon which CSCI will take over the regulatory work to be transferred to it by the National Care Standards Commission under the Bill. For that reason, the new clause is inappropriate to social care.
We will ensure that there is a significant read-across between the standards for NHS and independent healthcare, particularly as the latter will often provide independent care under contract to the NHS. In the draft standards that we will publish, there will already be considerable convergence. I shall not repeat all that I said earlier. We are trying to ensure that the standards apply, wherever possible, to the independent sector.
I repeat what I said in Committee: there will, inevitably, be some areas in which it is inappropriate to apply the same standards to the independent sector as apply to the NHS. Such differences will apply. A good example would be public health and accident and emergency services, which are not a function of the independent healthcare sector. We will provide for standards for the NHS in those areas.
As I said, we intend to consult on the NHS standards, and that consultation will include the independent sector. There will thus be ample opportunity for interested parties to comment on the proposed standards. They will be out in the public area well within the next six months—much sooner, in all probability. There is no need for the five-year
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timescale that noble Lords suggest in the amendments. I have given that assurance, and I am confident that the standards will be available for consultation in the near future.
Lord Peyton of Yeovil: My Lords, the noble Lord is entitled to his view, and there is nothing that I can say to dislodge it. Nevertheless, I find it difficult to accept that total harmony will always prevail between those who set standards and those whose duty it is to implement them. The people who set standards—the noble Lord's department—will always be looking over the shoulders of the people who implement them. They will be anxious to burden them with advice that will often look very like instruction.
I recognise that I will achieve nothing by going on. Reluctantly, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Warner Lord Warner moved Amendment No. 291:
Page 17, line 23, at end insert—
"( ) the availability and quality of information provided to the public about the health care;"
The noble Lord said: My Lords, Amendment No. 291 was tabled following our discussion in Committee of the areas to which CHAI should pay particular attention, in encouraging improvement in healthcare. We have also tabled Amendments Nos. 326, 334 and 353, relating to CSCI and the Assembly, to ensure consistency.
The amendments make it clear that it will be a function of CHAI, the Assembly and CSCI to be concerned about the quality of the general information on health services made available to patients and service users. They have been deliberately drafted with the intention of covering generic information that is not specific to an individual patient or service user— for example, leaflets, signage, telephone helpline services and other patient and service user information, such as information available about medical conditions generally.
The amendments do not extend a power for the inspectorates to evaluate the provision of specific information, such as medical advice given to patients in a consulting room, for instance. That might involve CHAI requiring far greater access to individual patient records than we consider necessary or expedient. Furthermore, it might place CHAI in a position in which it would be forced to make an assessment of whether the information given to patients in individual cases was clinically appropriate. That would be unsuitable.
As they are grouped with the government amendment, I could speak briefly to Amendments Nos. 309, 311, 336 and 337, although I am happy to wait until the relevant time. I beg to move.
6 p.m.
Baroness Noakes: My Lords, I shall speak briefly to Amendments Nos. 309, 311, 336 and 337 standing in my name in this group. They address a slightly different aspect of information to the public. We

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understand that the amendments to which the Minister has just spoken represent significant improvements in the way that information will be made available to the public. On that basis, I have no intention of pressing my amendments.
Lord Warner: My Lords, I have nothing further to add.
On Question, amendment agreed to.
Baroness Noakes Baroness Noakes moved Amendment No. 292:
Page 17, line 24, after "of insert "disadvantaged and vulnerable persons including"
The noble Baroness said: My Lords, in moving Amendment No. 292, I shall speak also to Amendments Nos. 335, 360 and 361, which are similarly worded. Amendments Nos 292 and 360 relate to CHAI; Amendments Nos. 335 and 361 relate to CSCI. In exercising their functions, the Bill requires CHAI and CSCI to be concerned in particular with,
"the need to safeguard and promote the rights and welfare of children".
If it is necessary to mention one group whose rights and welfare need to be safeguarded and promoted, that implies that other worthy groups are of less importance. In Committee, we discussed other formulations; that is, "elderly people" or "other vulnerable adults" being added after "children". Today's amendments take a slightly different approach; namely, that CHAI and CSCI should safeguard and promote the rights and welfare of disadvantaged and vulnerable persons, including children. We are using children as a specified example of disadvantage or vulnerability rather than the only specified focus for CHAI and CSCI.
Perhaps I may be clear that we are not seeking to diminish the roles of CHAI and CSCI in relation to children. In Committee, the noble Baroness, Lady Howarth, who knows much about the vulnerability of children, spoke in favour of the wording in the Bill because children get lost in hospital and those within the scope of social services are vulnerable. We have no problem with that; we agree with it. However, so much can go wrong for other groups that they, too, should have a special focus for CHAI and CSCI.
Not all elderly people are vulnerable, but that is not a good reason for excluding them. There are many stories of elderly people in hospitals who end up severely malnourished because no one ensures that they are fed. In care home settings, there are too many stories of abuse to be comfortable with the situation. Other groups, such as the disabled or those with learning difficulties, are not always treated fairly and properly in the health or social care systems.
I hope that the Minister will reconsider the skewed drafting and, as proposed in the amendments, be prepared to accommodate a more holistic approach to disadvantage and vulnerability. I beg to move.
Baroness Howarth of Breckland: My Lords, I have no difficulty with the amendment. At no time have I felt that vulnerable persons should not be included. In
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general, adults are not necessarily vulnerable when using services. Children, per se, generally are because they are dependent. Of course, I have a great vested interest in not losing children from the face of the Bill. However, I work across the spectrum of people with difficulties and conditions. Therefore, I would be very happy with the proposed amendment.
Baroness Carnegy of Lour: My Lords, following that extremely understandable comment made by the noble Baroness, it still seems that the Bill is odd. There may be good reasons for specifically selecting children, but the amendment puts the issue better in context. It reads better. I do not know whether the Minister will accept the amendment, but, as the Bill stands, it is slightly strange.
Lord Warner: My Lords, the amendments bring us back to our previous discussions regarding the need of inspectorates to pay particular concern to the needs of vulnerable people. I do not question the importance of the issues raised, but I continue to believe that the principle of CHAI and CSCI having regard to safeguarding and promoting the rights of all patients and service users is of paramount concern.
I hope that no one would call into doubt the integrity of Professor Sir Ian Kennedy. He has already outlined his intention that CHAI should promote a concept of "equal citizenship" by ensuring that the well-being and healthcare of vulnerable groups— including children, older people, people with mental illness or learning disabilities, people from areas of social deprivation or for whom English is not a first language—are fully reflected in CHAI's assessments and that rights are safeguarded. I am confident that such intentions are equally matched by Denise Platt, whose appointment as chair of CSCI follows a distinguished career in social services.
Having considered the issue further between Committee and Report, I continue to believe that it remains difficult to define precisely the term "vulnerable person". Therefore, it would be inappropriate to do so here. Noble Lords will recall that in Committee I explained the problems of providing an adequate definition of vulnerable adults that would not include large numbers of people who would not want to find themselves considered vulnerable.
I am therefore surprised that a new term, "vulnerable person", has been proposed, which is probably even broader and more difficult to define. It remains the case that individuals may be vulnerable in some context, but not in others. That was the burden of my argument in Committee, which I shall not repeat.
In my personal experience as a former director of social services, all users of social services potentially could be classed as vulnerable at some stage. The more particular groups are picked out, the more we move away from the idea that CSCI and, by extension, CHAI, should be concerned with the individual and the unique needs of particular service users. Therefore, for reasons that 1 explained previously, we have chosen

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to continue to ensure that children—in our view, the most vulnerable group in society—are covered specifically. I am sorry that the noble Baroness, Lady Howarth, is not with me on this occasion.
As I have already made clear, singling children out for particular attention does not mean that other vulnerable groups will not have their rights and welfare within the sights of both commissions. Resisting the amendment does not mean that the Government do not take their responsibilities for the well-being of individuals seriously. Having placed those reassurances on the record, I hope that this group of amendments will not be pressed.
Baroness Howarth of Breckland: My Lords, before the Minister sits down, perhaps I may reassure him that, whatever else occurs, I am convinced that children must be on the face of the Bill.
Baroness Noakes: My Lords, I thank the Minister for that reply. For the record, we are in no way doubting the integrity of Sir Ian Kennedy. That is far from what is in our minds. I have no doubt that Sir Ian Kennedy has all the issues debated in this context under control. The issue is not what Sir Ian Kennedy or Denise Platt would do in relation to CHAI and CSCI in the foreseeable future. The issue is what the Bill will drive CHAI or CSCI to do over the longer term or the implication it will carry to those without a detailed knowledge of our discussions in Committee. I regret that the Minister has chosen not to take this forward, but we shall not press the matter to the bitter end. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Earl Howe Earl Howe moved Amendment No. 293:
Page 17, line 28, at end insert "; and
( ) the implementation of any guidance issued by a Special Health Authority set up to provide guidance on health technologies and the clinical management of specific conditions"
The noble Earl said: My Lords, we had a useful although somewhat inconclusive debate in Committee about CHAI's responsibilities for ensuring that guidance issued by the National Institute for Clinical Excellence is being implemented throughout the health service. I say that the debate was "inconclusive", because unfortunately I cannot say that I found the Minister's eloquence on that occasion wholly persuasive. I shall not repeat at any length my concerns about these issues, but they centre on what are commonly referred to as "postcode prescribing" and the postcode lottery of services, not only in relation to medicines but also as regards the availability of medical technologies in different parts of the country, and the geographical disparities in the management of clinical conditions. I cited the examples of statins and atypical antipsychotics. I also mentioned certain kinds of cardiac and orthopaedic treatments. My firm view is that, if ever a body should be tasked with monitoring and reporting on these matters, the body should be CHAI.
The Minister's answer was reassuring, but only up to a point. He sought to persuade us that the amendment was unnecessary by arguing that NICE guidance would assuredly be built into the national standards which CHAI would have to take into account when conducting its reviews. Further, CHAI will need to monitor the way in which NHS bodies comply with their statutory obligations, one of which is that they must implement NICE guidance within three months of it being issued.
However, my difficulty with those arguments is that CHAI's duty to monitor the implementation of NICE guidance will remain implicit rather than explicit. In certain circumstances, that could lead to insufficient emphasis being placed on the importance of NICE pronouncements. If the Minister's statements in Committee are correct, and I am sure that they are, NICE guidance will be only one of many ingredients contained in the standards by which NHS bodies will be expected to operate. While, under the terms of Clause 45, the national standards will carry some degree of statutory force in that NHS bodies will have to take account of them in fulfilling their duty of quality, that is not the same as giving CHAI the legal duty to ensure that NICE guidance is being implemented.
There may well be, for example, a time lag between the issuing of guidance by NICE and the updating of a particular standard. That might provide an excuse for NHS bodies—not many, but some—but they should not be able to deploy such an excuse. I hope that the Minister will feel able to take these concerns on board and perhaps review his position on what is, in our eyes, a critical issue for patient care. I beg to move.
Baroness Finlay of Llandaff: My Lords, I wish to support Amendment No. 293 and speak to my Amendment No. 300 which is grouped with it. These amendments go to the heart of the principle of evidence-based healthcare. Welcome and desperately important moves have been made under this Government to ensure that more and more of what is done is based on robust evidence. NICE guidance has received much publicity around its pharmaceutical recommendations, and a little on some concerning technical and medical devices, but it also issues guidance on service configurations.
The range of technical advice that has been subject to very careful scrutiny of all the research evidence is extremely wide. While I do not wish to detain the House, I shall cite two examples of completed reviews. The first relates to tension-free vaginal tape for stress incontinence and the recommendation that the procedure should be performed only by those with specialist training and who have ongoing practice. The second concerns the use of 2-D imaging ultrasound guidance for central venous catheter insertion into the jugular vein in adults and children in elective situations and, wherever possible, in the emergency situation. A strong recommendation goes with it that audio-guided Doppler ultrasound guidance is not recommended for

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CVC insertion. These are highly technical pieces of guidance, but they are extremely important because of the strong evidence behind them.
I am concerned that guidance is now also coming out as regards service configuration in my own field— here I declare an interest, having been involved in the consultations on it—on supportive and palliative care. That includes detailed guidance on care delivery processes.
If CHAI is not specifically charged with ensuring that evidence-based guidance is being implemented and is further not charged with ensuring that old and unsound practices are abandoned, then I ask the Minister this: who is charged with making sure that these very important review and evidence-based recommendations and standard-settings are being rolled out across the NHS for the benefit of patients everywhere?
6.15 p.m.
Lord Clement-Jones: My Lords, I rise briefly to support both the noble Earl, Lord Howe, in his amendment and the noble Baroness, Lady Finlay, in her Amendment No. 300, to which I have added my name. The Minister gave an interesting response to similar amendments tabled in Committee. I understood clearly his remarks to the effect that NICE guidance would be included in the work on standards. However, what was less clear—and on this I seek chapter and verse from him—was the reminder he gave to the Committee that NHS bodies are also under an obligation to provide funding for treatments and drugs recommended by NICE within three months of its guidance being issued. The Minister also reminded us that that is a statutory obligation.
However, as I understand it, a duty is imposed on PCTs by the Secretary of State to fund such developments, but I should be most interested to learn where the statutory duty comes from. Of course, if there is a statutory duty then much of what we are talking about would fall away, but there is a very big difference between an injunction from the Secretary of State and a statutory duty. One of the points of having been in this job for six years is that I can well remember the Secretary of State announcing that, in the future, he would require NICE guidance to be implemented within three months.
The reason why I am so particularly concerned about this—here I declare an interest as a trustee of CancerBACUP—is that ever since the NICE guidance was put into effect on a variety of different cancer drugs—as I recall, one of the first NICE guidances to be issued related to tamoxifen—CancerBACUP has undertaken surveys of how far "postcode prescribing" was still continuing—the problem that NICE was supposed to do away with.
The most recent CancerBACUP survey, whose results were released at the end of October, elicited an impressive reaction from the Secretary of State at the time. He pledged action via the cancer tsar and so forth. However, that seems rather peculiar in these circumstances. Why should it be for a charity such as
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CancerBACUP to undertake the monitoring at every stage? The charity has monitored the take-up of nearly all the cancer drugs for various conditions in respect of which NICE guidance has been issued. However, these amendments sensibly put that duty on to CHAI, which is the body that should carry out such reviews.
Let us consider the situation. The Secretary of State, on a one-off basis and probably as the result of a major cancer conference held a day or so previously, rushes to announce that he has decided to make various pledges and so forth. That is not to deny that the Secretary of State has taken swift action and it is not to deny that we have an extremely effective cancer tsar who is well aware of many of these issues. However, the process would be far more coherent if CHAI was the body which actually checked on whether NICE guidance is taking effect and whether PCTs are taking notice of it. We would then know about the situation and take action in a proper and methodical fashion. For me, that sums it up: we do not seek an extraordinary and draconian power for CHAI, we are trying to ensure a better health service.
Lord Warner: My Lords, I was really enjoying the oration of the noble Lord, Lord Clement-Jones, since he was becoming quite wound up. However, my response is going to be rather flat on this issue. The statutory basis here is the obligation on PCTs to comply with NICE guidance provided for in Section 17 of the National Health Service Act 1977, where it states that the Secretary of State may issue directions to PCTs and other NHS bodies. NICE guidance directions are made under that section. I am glad that the noble Lord did not know that, otherwise I would have missed his speech.
As regards the points made by the noble Baroness, Lady Finlay, I can reassure her that we are not in any way trying to resile on our commitment to evidence-based practice. I shall say a little more about why we are not convinced of the need for the amendments.
Amendment No. 293 seeks to place a duty on CHAI to pay particular concern to the implementation of guidance issued by a special health authority with respect to health technologies and the clinical management of specific conditions. That is what it does. The noble Earl made much of the fact that he was particularly concerned about the implementation of NICE guidance. In effect, that is what Amendment No. 300, tabled by the noble Baroness, provides for.
I appreciate the sentiments behind the amendments but they are too specific. In fact, you could argue that they elevate the output of a special health authority such as NICE to a point over and above guidance issued by other eminent sources such as, for example, the Medical Royal Colleges and the UK chief medical officers, and also outputs from the Government's national service frameworks. This could lead to confusion in the minds of many in the health service as to what should be given priority in terms of implementation.

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As I previously outlined, NICE's formal remit is,
"the promotion of clinical excellence and the effective use of available resources in the health service as the Secretary of State may direct".
It is therefore central to our plans to modernise the NHS, and drive up standards.
As the Minister with key responsibility for NICE, I want to do nothing whatever to undermine its position. I wish to place on record the fact that it currently has the largest programme of clinical guidance and technology appraisals in simultaneous preparation in any country. I hope it gives some comfort to the noble Baroness that we are committed to continuing along a path of evaluating practice and ensuring that evidence of best practice is disseminated.
It is worth bearing in mind that the Explanatory Notes to the Bill make clear that it is envisaged that any statement of standards issued and published by the Secretary of State under Clause 45 is likely to be informed not only by NICE guidance but also by other relevant sources such as, for example, the national service frameworks.
I shall not go over the grounds of Clause 45 and the standards provision but, together with the duty of quality under Clause 44, it makes it clear that NHS bodies are to put and keep in place arrangements to monitor and improve the quality of care they provide or commission on behalf of the patients they serve. To make this crystal clear, Clauses 49, 50 and 51 state that CHAI must take account of those standards when exercising its reviews and investigations functions under those clauses. I am sure that it will want to take account of them when exercising its other functions.
As I said, NHS bodies are already under a statutory obligation to provide funding for treatments and drugs recommended by NICE within three months of guidance being issued. That takes account of the fact that there is still provision under exceptional circumstances—as has been done on one or two occasions—to vary that recommendation where there are capability issues within the NHS about its ability to fulfil the three-month deadline. I am confident that CHAI will take into account statutory obligations on NHS bodies when carrying out its reviews.
Let me gently say to the noble Lord, Lord Clement-Jones, that the Secretary of State did not overreact in relation to cancer. He did not run around; he merely asked the cancer tsar to carry out a review. It was a perfectly sensible response to a set of concerns expressed by the public.
In the light of these reassurances, I hope that the noble Earl will feel able to withdraw his amendment.
Earl Howe: My Lords, that was a helpful reply. This is not an appropriate matter to press but, at the same time, the House will be grateful to the noble Baroness, Lady Finlay, and the noble Lord, Lord Clement-Jones, in particular, for having spoken in the way in which they did about a matter that has raised much concern.
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The Minister said that my amendment and the amendment of the noble Baroness, Lady Finlay, and the noble Lord, Lord Clement-Jones, would give NICE guidance an unfair emphasis. My concern is that NICE guidance does not have enough emphasis. While the Minister was no doubt right to point to the importance and salience of guidance from the Chief Medical Officer and the Medical Royal Colleges, for example, I am not aware that guidance from those sources has given rise to particular concern as to its non-implementation. I am, however, aware that there is concern about the non-implementation of NICE guidance. So this is an appropriate issue for an amendment.
Nevertheless, we must take on board what the Minister said. There is time between now and Third Reading to give further consideration to the issue and it is right that, for now, I should beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Barker Baroness Barker moved Amendment No. 294:
Page 17, line 28, at end insert "; and ( ) the availability of and access to specialist services"
The noble Baroness said: My Lords, I return to a subject that we addressed in Committee. As in the amendments we have just debated, it is a subject on which there was a fair amount of ambiguity in the answer given by the Minister. Hence we return to it now.
The amendment concerns the role of CHAI in overseeing the accessibility and availability of specialist services within the new set up. In his response to points that I raised in Committee, the Minister spoke at length about the duty of co-operation between different trusts. He rightly put that forward as one way in which the issue of the availability of specialist services could be addressed. However, he did not sufficiently cover in his response the question of whose responsibility it is to ensure that specialist services, which are needed by only a minority of the population, are delivered equitably across the whole country. What happens if a specialism is considered to be so expensive that no foundation trust in a vast area of the country chooses to provide it? What happens to the people who need such treatment in that area?
We know that there are at the moment chronic shortages in some important specialist fields. For example, neurological and paediatric services are inadequate—there is no other word to describe them. The amendment seeks to elicit from the Minister a more detailed response on the role of CHAI in ensuring that the necessary specialist services are equitably distributed across the NHS. It is as simple as that. I beg to move.
6.30 p.m.
Lord Warner: My Lords, as the noble Baroness knows, it is the responsibility of commissioners to ensure that specialised services are made available to meet the needs of their populations, whether

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individually or in co-operation with other commissioners. That is the short answer to some of the questions that she was raising.
I can understand the sentiment behind Amendment No. 294, but we believe it has already been adequately captured by the scope of the clause as it stands. CHAI will be able to concern itself with the provision of specialised services under subsection (2)(a). Furthermore, CHAI is also able to consider the quality and effectiveness of any such care under subsection (2)(b) of the clause.
Including references to specialised services on the face of the Bill is in our view unnecessary because this is already provided for. As I have said, no doubt CHAI will want to look at whether there are particular problems in particular parts of the country if it turns out that commissioners are not making adequate provision, but that will be picked up in the inspection of providers. It will be for CHAI to identify any such concerns in the reports resulting; from those inspections.
Baroness Barker: My Lords, I thank the Minister for that answer, but I do not think that it fully meets the reality, nor is it likely to. A commissioner can commission services as they like, but if there are no suitably qualified people in the field of paediatric neurology to provide the services, under this future system—as now—they will not exist. That is the issue I am seeking to address. Who has the responsibility for making up for those deficiencies? I am not sure that leaving it solely to commissioning will be the answer, particularly in the new set-up of financial flows. However, I take what the noble Lord says on board— I believe his interpretation of subsection (2)(a) is somewhat more generous than mine would be, but I understand his argument and will not, at this stage, press the amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Finlay of Llandaff Baroness Finlay of Llandaff moved Amendment No. 295:
Page 17, line 28, at end insert—
"( ) the equity in provision of healthcare; and
( ) the implementation of ethical principles in decision making processes"
The noble Baroness said: My Lords, in moving this amendment I shall speak also to Amendment No. 328, which is in this group.
It is only fair to tell the Minister that I feel very strongly about these amendments. Equity lies at the heart of the philosophy of the NHS. It is equitable that people are prioritised by need, not by demand. It is equitable that they are not disadvantaged in the care that they receive by dint of any prejudice against the person on any grounds, by pre-judging their personal or social situation, by pre-judging them because of any pre-existing disability, or because they live in the wrong postcode area.
People with disability have spoken very openly and loudly about their fears of inequity in the service that they already receive. There have been discussions on the Floor of the House at many points during the Bill's proceedings over concern about a two-tier system. It is accepted by many in the House that things are not as they should be—there are areas of much worse care and areas of much better care. There are currently inequities in the system.
I have a major concern. Clause 47(2) states that CHAI shall be concerned in particular with,
"the quality and effectiveness of the health care".
I do not quibble with that. It also states that CHAI shall be concerned in particular with,
"the economy and efficiency of the provision of health care".
I do not quibble with that. However, there is no mention of equity.
The commissioning arrangements by primary care trusts and in Wales by local health boards must ensure that providers adhere to equity. Indeed, the commissioning arrangements themselves must not create "two-tierism" or, worse, three or "four-tierism" across parts of the health service.
When trusts were first established and the competition of the internal market seemed to reign supreme, inequities emerged which caused a great deal of anxiety. I hope that no such inequities will re-emerge as a result of the Bill. CHAI and the Assembly inspectorate must ensure that provision is equitable and that the contracts that are in place do not jeopardise that equity.
The Government have shown a commitment to patient choice and to informed decision-making by patients in partnership with professionals. However, the relationship between patient and professional contains an inherent and, sadly, inevitable imbalance. The patient is vulnerable—he may not have any knowledge of physiology, anatomy or disease processes. He is often fearful, and those fears are informed by anecdotes and personal witnessed events, either in his care or the care of his family and friends, or as portrayed in the media. Unfortunately, sensational stories in the media do not always present a balanced view and at times they do not provide helpful public education to improve health.
When CHAI and the Assembly inspectorate look at the processes of care, it is essential, in my view, that they can confirm that decisions are driven by the principles of bio-ethics, of informed choice, of actions guided by the patient's best interest, and by the just allocation of resources.
The inspectors will be in a unique position. They will be auditing clinical processes, they will have access to records, to patients and to staff at all grades. They will be able to detect inconsistencies. They must be formally charged with a duty to enhance good clinical processes. I beg to move.
Baroness Barker: My Lords, I support the noble Baroness, Lady Finlay, wholeheartedly, and should like to speak to Amendment No. 316 in particular.

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Noble Lords on these Benches were puzzled in Committee that matters such as economy and efficiency were of such importance that they were on the face of the Bill yet equity was consigned to the penumbra of regulation. I do not believe that we received at that stage a compelling answer from the Minister about why equity should not be a principle equal to those on the face of the Bill, and we remain unconvinced. The Minister will recall that I tackled equality in a number of different ways in Committee. He rejected most of them on the grounds that they were far too prescriptive. To contain a principle of equity is not prescriptive.
The noble Baroness, Lady Finlay of Llandaff, is right that the health system as it stands is not equitable. However, the aim or the goal of equity is within the health service, and it should continue to be so, particularly when foundation trusts come into being and are not so tied to management structures as they would otherwise have been.
The noble Baroness is quite right about the potential skewing of healthcare towards those people who are knowledgeable and articulate, and capable of putting forward their demands in the right terms. It is beginning to happen in primary care and I have no reason to believe that it will not happen in acute care when foundation trusts become membership organisations.
I doubt whether anybody will be as disarmingly honest as the person whom I recently met from a PCT who said, "In our borough, we have highly articulate, very well off middle-class parents of children. That is why we are putting our money into children's services, not older people's services". It may sound breathtaking, but for once it was a joy to meet somebody in the NHS who told the truth straight up and did not dance around the subject. But there is always a danger that those who are not articulate or strong, and who have not worked out all the clinical angles, will not be included in the legislation. That is why we believe the matter to be important.
Finally, I imagine that the Minister will say, as he did in a previous debate, that equality legislation is in place and that, therefore, the amendment is not necessary. If equality legislation applied to healthcare, that argument might be right—but in not all respects does it do so. Tremendous strides have been taken in the health service, especially with the work on age discrimination and some of the other work included in the national service framework. However, an undertaking throughout the health service is not in place that everyone, no matter who, has a right and the same opportunity to have the same treatment, even though it is not specific to the group to which they belong. Therefore, I believe that the noble Baroness, Lady Finlay of Llandaff, has got the matter absolutely right. This is one of the most important aspects of the Bill.
Lord Warner: My Lords, it would be difficult to disagree with many of the points made by the noble
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Baroness, Lady Finlay, and I have no intention of trying to do so. I appreciate the sentiments and thoughts behind her amendments. However, in as gentle a way as possible, I suggest that there are real problems with the workability of the amendments.
My most important concern is the scope for the interpretation of the term "equity", and the actions that could result. The word could be interpreted in a variety of ways: in terms of fairness, equality, or subsets of those words. Not everyone will place the same interpretations on the word. Such words pose real problems for parliamentary draftsmen and for the inspectorates as to the possible interpretations that might be placed on them.
For example, if equity were interpreted to mean "fairness", there would be considerable uncertainty about how CHAI would apply such a concept to the making of clinical decisions in trusts. CHAI's judgments, in theory and possibly in practice, could cut across difficult clinical decisions involving a weighing up of all the relevant factors. Some will say that equity should relate to access to healthcare, which is what the noble Baroness, Lady Barker, said. However, we already state in subsections 2(a) and 4(a) of Clauses 47 and 68 that CHAI and the Assembly shall be concerned in particular with,
"the availability of, and access to, healthcare".
When appropriate, therefore, CHAI and the Assembly can already consider equity in the sense that I have described, so I am not sure what the word would add in those situations.
As for equity in terms of ethical decision making, we believe that, traditionally, many of those issues should be left to the General Medical Council, and to the other regulatory bodies of the healthcare professions. I have already mentioned, so I shall not repeat it, the point made by Sir Ian Kennedy, the chairman of CHAI, about promoting the concept of equal citizenship. That deals with many of the concerns expressed about putting equity into the terms of the Bill. The needs of all service users are adequately provided for in the Bill, and we see no reason to believe that CHAI would not champion those issues or ensure that they are properly pursued in the reviews and inspections that it carries out. I am sure that those sentiments will apply to the Assembly.
Amendment No. 316 to Clause 58 is similar to that previously considered in Committee. However, as I said at the time, noble Lords will know from Second Reading that we have made clear in Clause 47 that CHAI is to be concerned with all factors related to the quality of healthcare, when it exercises any of its functions for the provision of healthcare under Clause 47(1) or Clauses 48 to 56. It is our view that regulations under Clause 58 could require CHAI to be concerned with any of the factors listed in Clause 47(2) in connection with any new function, which is what the amendment deals with. To do so could be considered part and parcel of conferring a new function. We do not believe that the provision in the amendments is necessary.
6.45 p.m.
Baroness Finlay of Llandaff: My Lords, I am most grateful for the Minister's detailed reply, and for the gentle way in which he responded to my points. I am glad that he agrees with the sentiments and thoughts behind the amendments, which I feel very strongly about, and I accept that he has given me information about the workability difficulties with the wording as it stands, and the problems that the amendment's wording might pose for inspectorates.
I do not want to do anything that would make clinical decision making any more complex than it is already. Nor do I want to do anything that cuts across the role of the regulatory bodies, especially not the GMC—with which I am registered, so must declare an interest. That body has done a great deal to raise clinical standard setting and to ensure that clinicians are fully aware of the principles of bio-ethics, producing some excellent guidance on that matter.
In the light of that, I shall take further advice and read the Minister's words. However, I have a nagging concern that the economic factors have been put in place without ensuring that we do not create two-tierism. Therefore, while I will not press the amendment, I do not want to abandon the principle behind it completely. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 48 [National performance data]:
[Amendment No. 296 not moved.]
Clause 49 [Annual reviews]:
Earl Howe Earl Howe moved Amendment No. 297:
Page 17, line 37, after "rating" insert ", in a form to be determined by the CHAI, "
The noble Earl said: My Lords, in moving the amendment I shall speak to the other amendments grouped with it.
We return to a familiar, not to say perennial, topic of debate in this Chamber—that of star ratings. When I raised the issue in Committee on 20th October, I was grateful for the support that I received from around the Chamber for my criticism of the star rating system. The notable exceptions were the noble Lord, Lord Hunt, and the Minister himself, who resembled no one so much as Nelson with the telescope up against his blind eye. Apart from them, all noble Lords who spoke reflected the widespread disenchantment in the NHS about performance ratings in the form that they currently take.
To put the case at its simplest, star ratings are a crude and very blunt instrument. Not only do they often fail to reflect what is important in a hospital's performance, because by their nature they tend to average out a disparate range of indicators, but they also fail to distinguish adequately the hospital that is failing from the hospital that is succeeding. The successful hospital, according to the Audit Commission, will tend to be one that has competent management running it. Yet the commission also makes clear that the star rating system is only weakly related to either the level of performance or the quality of management.
Star ratings count for a lot in terms of the rewards that ensue from them, or the lack of such rewards, so they matter very much to NHS staff. A poor star rating can affect morale adversely, not simply because it is seen as a public sign of failure but because everyone knows that the rating is a poor mirror on reality. Hospitals feel, sometimes with justification, that they have been unfairly rated. The difference between a two and a three star rating can be a matter of a very few percentage points.
My belief is that the whole system needs a thorough-going rethink. There is no better body to do that than CHAI, under the chairmanship of Sir Ian Kennedy. I do not know whether the Minister saw Sir Ian quoted in last week's Health Service Journal. Sir Ian himself used the word "crude" to describe star ratings, and suggested that any kind of rating should use the language of improvement to illustrate how well an organisation is doing. The use of numbers, he said, is at best unhelpful. I believe that the performance ratings awarded by CHAI, and, indeed, the equivalent ratings to be awarded by CSCI, should be ones that are devised and formulated by those bodies themselves. Sir Ian's vision is clear. It is not so much to judge organisations as to hold up a mirror to them; not to be governed by a centrally imposed one-size-fits-all formula but to look at a hospital's performance more broadly, using localised targets where these are appropriate.
"The language of improvement" is a phrase I like because it gets us away from crude numbers to something more sophisticated and sensitive which, all being well, will achieve what we want to see from this system, which is a constructive tool for raising standards. The raising of standards would not be by means of hospitals being named and shamed and told what to do by other people, but rather by hospitals taking the initiative for themselves, taking ownership of their failings and being guided by CHAI towards the necessary improvements.
If hospitals can see that the targets they have are directly relevant to their own situation, there will be much more point in devoting management effort to them. As it is, a great deal of management effort is being channelled into chasing targets that often serve to distort clinical priorities and which are therefore regarded with some cynicism. Variations in performance between hospitals need to be exposed to the light of day but this has to be done in a sensitive and relevant fashion so that staff are able to sign up fully to the goals they need to reach.
I hope that the Minister can provide us with a little more comfort on this very important issue than he was able to do on the previous occasion. I beg to move.
Lord Turnberg: My Lords, the noble Earl is absolutely right to say that the current star rating system leaves a lot to be desired. There is much dissatisfaction with the lack of attention being paid to the clinical care angle of what a hospital provides. I should like to see a review of the star rating system. The difficulty lies in giving that job to CHAI. A thorough review and a lot more work are required but

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I am not convinced that that should be done by CHAI. The Bill's present wording suggests that annual reviews,
"must award a performance rating to each such body".
It says nothing at all about how that performance rating will be carried out or what it should comprise. It does not prescribe how that should take place; it leaves it open. I believe that that is reasonable.
Baroness Carnegy of Lour: My Lords, the whole idea of the star rating system is to act as an incentive for the raising of standards. On the face of it, that is one way to do these things. However, there is nothing worse when you are actually working in the system than feeling that the system for rating your achievement— in this case the star rating system—is unfair. There is a widespread feeling—I believe that the noble Lord, Lord Turnberg, identified it on a previous occasion, as did others—that the star rating system is unfair because it is too blunt an instrument. It needs to be much more subtle, much more accurate and therefore much fairer. It has to be accepted as a good means of assessment so that if the hospital next door—or whatever part of the health service is being assessed— does better than you, you feel that that is right; otherwise, it acts as a disincentive. So far as I can make out, a good deal of disgruntlement in the health service is brought about by the feeling that this system is unfair.
Lord Warner: My Lords, I am grateful for the thoughtful remarks of my noble friend Lord Turnberg. I say to the noble Earl, Lord Howe, that even in my visually challenged state if I put the telescope up to either eye and I look at targets, I can still see that they have done rather more for patient access to services than some of the measures that were taken in previous times. I acknowledge all the limitations of targets, but they have changed people's ability to get access to services when they really need them both in outpatient and inpatient departments. We should not lose sight of that in our rush to vilify targets and to review them. No one is arguing that the system cannot be improved but we should not lose sight of the benefits that targets have brought to patients.
Amendments Nos. 297 and 338 would allow both CHAI and CSCI the freedom to determine the form that performance ratings may take. Of course it is up to both commissions, as independent commentators, to determine expressly how the performance ratings will look and feel. This has always been our intention and I therefore feel that, given the reassurances I have placed on record, these amendments are unnecessary.
Amendments Nos. 298, 317, 339 and 349 propose to remove the duties on both commissions to seek the approval of the Secretary of State, and in the case of CHAI the Assembly, before issuing relevant criteria under Clauses 49, 59, 79 and 83 of the Bill. I shall not go over the ground again but I have already said on numerous occasions in our deliberation of the Bill that we are giving Ministers the role of approving such criteria proposed by the two commissions in order to
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ensure that the statements of criteria reflect and are consistent with the national standards set by the Secretary of State under Clause 45. After all, the Secretary of State remains accountable to Parliament for the delivery of health and social care provision. These clauses as drafted seek to avoid situations in which CHAI or CSCI's criteria might inadvertently create an additional alternative set of priorities for NHS bodies or social care providers.
However, as I have already made clear, although Ministers will have ultimate responsibility for approving inspection criteria, both CHAI and CSCI will be responsible for drawing them up. This will allow both commissions plenty of opportunities to listen to the concerns expressed in this House and elsewhere and to use their expertise to ensure that the criteria against which health and social care providers are inspected are fair and reflective of the needs of service users. I am sure that both commissions will have in the forefront of their minds the needs of patients. I suggest that it would be a brave Minister who did not listen carefully to Sir Ian Kennedy and his colleagues regarding the criteria and methodologies that they propose.
Amendment No. 344 would prevent CSCI using the lowest level of rating as a measure of poor performance for advising the Secretary of State on the action to be taken to improve such services. The lowest level of rating is given only to authorities who are clearly failing to provide a satisfactory level of social services to their local community generally or where either children's or adults' services are of an unacceptable standard. CSCI, in making these assessments, will use a mixture of data that it has from its general reviews and investigations, statistical data, performance data it receives from the authority and any information available from local inspectors. These decisions are not made on the basis of snap judgments but on the basis of regular liaison with local authorities. Changing from this position to one where action can be taken only where there is significant cause for concern would not be in the best interests of service users. It could be seen to suggest that action might be taken only where serious harm had already been done to the welfare of children or vulnerable adults and that is not acceptable to the Government.
Clause 79(3) already imposes on CSCI an obligation to report to the Secretary of State where any social services authority is failing to discharge any of its functions to an acceptable standard. Therefore the star rating given to the local authority is not the only trigger for such a report to be made. We consider it right that there should be two bases for reports to be made to the Secretary of State, one where its overall level of service is such that it receives the lowest star rating, and a second where any particular service is below an acceptable standard. That two-part test is right, and the proposed additional test would not add anything.
7 p.m.
Earl Howe: My Lords, I thank the Minister for that full and helpful reply. I shall reflect further on what he

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said as regards Amendments Nos. 344 and 349 in particular. I am grateful to him for confirming something that I am not sure emerged from our earlier debates, which is that CHAI and CSCI will themselves be tasked with responsibility for the performance-rating system. That is good news, and I am sure that it is the right way to go. I shall certainly not dwell on the amendments any further, other than to express my pleasure at the Minister's answer.
I still do not understand why, on the question of criteria, it is necessary for the Secretary of State to have a role in approving whatever CHAI and CSCI propose. Again, I shall think carefully about what the Minister said. His case seemed a little thin, but he took a good deal of trouble in answering the points, so the least that I can do is consider what he said fairly and fully. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 298 not moved.]
Lord Warner Lord Warner moved Amendment No. 299:
Page 18, line 10, at end insert—
"( ) The Secretary of State may, after consulting the CHAI, by regulations make provision as to the procedure to be followed in respect of the making of representations to the CHAI before the award of a performance rating under this section."
The noble Lord said: My Lords, I want to dwell briefly on the opposition amendments in this group, in order to explain my points on the government amendments. I am not in any way trying to inhibit other debate. The opposition amendments are the same as those tabled in Committee. They require CHAI and CSCI to give NHS bodies and local authorities the chance to comment on the contents of reports before they are published or shown to the Secretary of State. I argued in Committee that such amendments were unnecessary because it was already good practice to share copies of reports with the inspected bodies prior to publication. We are still confident that CHAI and CSCI will continue that practice.
However, I said that I would consider further the principle behind the amendments. Having given that further thought, I consider that it would be appropriate to include a provision in the Bill to formalise what will happen in any case through good practice. The government amendments tabled place a series of regulation-making powers in the Bill that will enable the Secretary of State to make provision for the procedure to be followed in respect of the making of representations to CHAI or CSCI before the award of a performance rating or publication of a report.
It is more appropriate that such matters should be dealt with in regulations than by having an explicit duty in the Bill, in order to allow for the flexibility required. We envisage that a regulation-making power which would specify in some detail differing numbers of days that NHS bodies and local authorities would have to respond to reports by CHAI and CSCI in different circumstances is the right way forward. For example, where a body was deemed by CHAI and CSCI to be failing, or they were concerned that the
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safety and welfare of patients or service users was put at risk, we could specify that a lesser number of days should be given than was generally the case. That would ensure that CHAI, CSCI and the Secretary of State were still able to act quickly to protect patients and service users. As I said in Committee, one of our principal concerns with the opposition amendment was that it might hinder them from doing so.
The government amendments require consultation with CHAI and CSCI before any regulations are made. We would of course also carry out a full public consultation on those regulations, to ensure that the particular timescales specified for different circumstances are entirely appropriate. I should make it clear to the House, however, that due to the fact that the regulation-making powers are being added only at this stage, it is unlikely to be possible to carry out such consultation and have the regulations in place by 1st April 2004, although we will aim to do so as soon as possible thereafter. I beg to move.
Baroness Noakes: My Lords, the Minister has already referred to Amendments Nos. 306, 307 and 345 in the group, which are in my name and that of my noble friend Lord Howe. Those amendments have been comprehensively upstaged by the Minister's own. He said in Committee that he would look again at the matter, and we regard the outcome as perfectly satisfactory.
On Question, amendment agreed to.
Clause 50 [Reviews: England and Wales]:
[Amendment No. 300 not moved.]
Lord Warner Lord Warner moved Amendment No. 301:
Page 18, line 38, at end insert—
"( ) The Secretary of State may, after consulting the CHAI, by regulations make provision as to the procedure to be followed in respect of the making of representations to the CHAI before the publication of a report under this section."
On Question, amendment agreed to.
Clause 51 [Reviews and investigations: England]:
Earl Howe Earl Howe moved Amendment No. 302:
Page 19, line 10, leave out subsection (4).
The noble Earl said: My Lords, in moving the amendment I am returning to an issue that we debated in Committee, which is the power granted to the Secretary of State in Clause 51(4) to require CHAI to conduct reviews or investigations.
The Minister sought to reassure us that such a power was right and proper. The Secretary of State is accountable to Parliament, and he should therefore have the ability to instruct CHAI to investigate issues that are in the public interest. Although that proposition sounds reasonable, I actually think that it is questionable. If we believe that as a general rule CHAI should be free to set its own work programme within the resources allocated to it, and to set its own priorities, it is doubtful, at least to me, whether the Secretary of State should have an automatic right to override those priorities.
The Minister said that the power set out in the provisions did not impinge on CHAI's independence, because it would be used only sparingly. I would feel happier about that reassurance if there were something in the clause to qualify the circumstances in which the power could be used, but there is nothing—it is open-ended. In theory, the Secretary of State could direct CHAI's entire work programme. That may not be the Government's wish or intention, but a future government could approach the matter differently.
There is also a risk that CHAI may be unnecessarily side-tracked by having to fulfil instructions from the Secretary of State in situations that are highly politically charged. There might be, for example, a story splashed all over the press of a hospital chapel being used as a temporary mortuary, as indeed happened some time ago. There was a huge fuss about that story, and immense outrage expressed in all the tabloid newspapers. Actually, although the situation at the hospital was highly regrettable, it hardly fell into the category of a major health concern. Yet one could easily imagine a Minister in such circumstances feeling browbeaten and deciding that he needed to "do something". If the provisions applied, the result might well be an instruction to CHAI to drop everything that it was doing and investigate what, in CHAI's own eyes, it did not regard as a pressing matter.
That is one sort of danger but, looking at the picture more broadly, I do not see why the Secretary of State needs a power to instruct CHAI in that way. If something important needs investigation and CHAI is unaware of it, it is always open to the Secretary of State to bring the matter to CHAI's notice. If the situation really is an emergency, one cannot envisage CHAI wanting to delay looking at it. There may be other issues arising at that moment which CHAI considers to be even more pressing. Why should it have to submit to the overriding request of the Secretary of State? The case has simply not been made.
The Minister will therefore see that several strands of thought run through the amendment. I am not saying that CHAI should have extra independence just for the sake of it. I hope that the Minister will respond constructively. I beg to move.
Lord Warner: My Lords, as the noble Earl said, the amendment would remove the Secretary of State's specific power to require CHAI to undertake reviews and investigations in certain circumstances. It is important that the Secretary of State, who remains accountable to Parliament for the provision of healthcare, has the ability to be able to require CHAI to undertake a review or investigation where there is a crisis of confidence in public services. That power does not apply to cases that may pop into the headlines, such as a chapel being used as a mortuary. However, it could be applicable to a specific NHS body, such as Bristol Royal Infirmary or Alder Hay, where a specific type of service or problem area such as retention of organs needs to be investigated. Such matters are of
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great public concern and the ramifications for the NHS go wider than the specific place to which they relate.
In those circumstances—nine times out of 10 and 99 times out of 100—we would expect CHAI, which would want to identify and actively respond to such concerns, to fit that into its programmes. However, circumstances could arise where the Government have to intervene and reshape slightly the priorities of CHAI where there was a crisis of confidence of the kind that I have mentioned and it is important that the Minister has that reserve power. I hope that my answer clarifies matters for the noble Earl. The Government certainly have no intention to interfere with the work of CHAI every day. As I pointed out earlier, the number of staff who will be around in the Department of Health to interfere in anybody's workload will be substantially reduced in the review that we are carrying out.
Earl Howe: My Lords, I would feel happier if the wording were less open-ended than it is. The wording is not qualified in any way. I was of course glad to hear the Minister say that if there were a crisis of confidence of some kind, such as Alder Hay, CHAI would normally set about the task of looking into those matters of its own accord. I still question whether the Secretary of State needs a power to instruct CHAI, but I shall not press the matter further. I hope and believe that the clause will be read in conjunction with the Minister's helpful remarks. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Warner Lord Warner moved Amendment No. 303:
Page 19, line 25, at end insert—
"( ) The Secretary of State may, after consulting the CHAI, by regulations make provision as to the procedure to be followed in respect of the making of representations to the CHAI before the publication of a report under this section."
On Question, amendment agreed to.
[Amendments Nos. 304 to 306 not moved.]
Clause 52 [Failings]: [Amendment No. 307 not moved.]
Lord Warner Lord Warner moved Amendment No. 308:
Page 20, line 38, at end insert—
"( ) The Secretary of State may, after consulting the CHAI, by regulations make provision as to the procedure to be followed in respect of the making of representations to the CHAI before the publication of a report under this section."
On Question, amendment agreed to.
Clause 53 [Functions relating to Secretary of State and Assembly]:
[Amendment No. 309 not moved.]
7.15 p.m.
Clause 54 [Functions relating to regulator]:
Earl Howe Earl Howe moved Amendment No. 310:
Page 21, line 14, leave out "is to keep the regulator" and insert "and the regulator are to keep each other"
The noble Earl said: My Lords, I beg to move Amendment No. 310, but merely as a means of expressing my appreciation to the Minister for tabling superior amendments which satisfy the point that I made in Committee by way of the amendment. I beg to move.
The Deputy Speaker (Baroness Fookes): My Lords, if Amendment No. 310 is agreed to, Amendment No. 311 could not be called by reason of pre-emption.
Lord Warner: My Lords, I have nothing more to say on the amendment.
Earl Howe: My Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 311 not moved.]
Lord Warner Lord Warner moved Amendment No. 312:
Leave out Clause 54.
The noble Lord said: My Lords, I beg to move Amendment No. 312.
Lord Skelmersdale: My Lords, we cannot allow the Minister to get away with the amendment. Amendments Nos. 312, 318 and 376 are grouped with Amendment No. 310. The noble Lord said that he wished to speak to the government amendment separately from the one that was tabled by my noble friend, and I suggest that he might like to do so.
Lord Warner: My Lords, I am always happy to satisfy the thirst for knowledge in your Lordships' House, but I thought that noble Lords would want to move along towards the dinner hour a little more briskly. Amendments Nos. 312, 318 and 376 were tabled in response to concerns raised in Committee, as the noble Earl has acknowledged.
Your Lordships sought to ensure that CHAI and the independent regulator of NHS foundation trusts should keep each other informed. The amendment would have placed an undue burden on the bodies. It is unlikely that the independent regulator will be regularly in receipt of information about the quality of healthcare provided by and for individual NHS foundation trusts, as it will not inspect the healthcare provided. That remains the role of CHAI.
We understand that the independent regulator may occasionally receive information that impacts on the provision of healthcare by NHS foundation trusts and that it is appropriate that that information is shared with CHAI. Therefore, subsection (2)(b) of Amendment No. 318 clarifies that such information should be shared.
It remains our expectation that CHAI will be regularly in receipt of relevant information concerning the provision of healthcare. CHAI remains under a duty under subsection (2)(a) to keep the independent regulator informed. That will support the regulator in
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carrying out its duties of granting authorisations to foundation trusts and keeping such authorisations under review.
Subsection (1) of the amendment would ensure that CHAI and the independent regulator must "co-operate with each other" in carrying out their functions. Subsections (1) and (2) would ensure that the provisions in Clause 54 are carried forward. Amendment No. 312 deletes Clause 54 as that clause is replaced by Amendment No. 318.
Amendment No. 376. would delete Clause 121(2), which allows CHAI to provide assistance to the regulator. The duty to co-operate has subsumed the duty in that clause. I beg to move.
On Question, amendment agreed to.
Clause 56 [Co-ordination of reviews]:
The Deputy Speaker: My Lords, if Amendment No. 313 is agreed to, I cannot call Amendment No. 314 by reason of pre-emption.
Lord Warner Lord Warner moved Amendment No. 313:
Page 21, line 28, leave out "may promote" and insert "has the function of promoting"
The noble Lord said: My Lords, Amendments Nos. 313, 347 and 352 have been tabled following our discussion in Committee about the feasibility of placing CHAI under an explicit duty to promote the effective co-ordination of reviews or assessments carried out by public bodies or other persons under Clause 56. We continue to believe that it would be inappropriate to amend the Bill in the manner proposed by Amendment No. 314 tabled by the noble Lords opposite. We have, however, consulted parliamentary counsel on this matter. He advises that the most appropriate way of giving the clause a more mandatory flavour is to amend it—and by extension, and to ensure consistency, Clauses 80 and 81—to give CSCI and the Assembly a function of promoting the co-ordination of reviews.
As with all other functions in the Bill, it will be for each commission to determine the precise manner in which the function will be discharged and which particular bodies and reviews it will seek to co-ordinate. I trust that noble Lords opposite will find that acceptable. I beg to move.
Baroness Noakes: My Lords, I have tabled Amendment No. 314, which I am pleased to regard as trumped by the Minister's Amendment No. 313. I am grateful to him for taking the matter away and finding a solution which satisfies that most difficult of individuals, parliamentary counsel, in achieving what we agreed in Committee.
On Question, amendment agreed to.
Clause 57 [Studies as to economy, efficiency etc]:
Lord Warner Lord Warner moved Amendment No. 315:
Page 22, line 5, at end insert—
"( ) The Secretary of State may, after consulting the CHAI, by regulations make provision as to the procedure to be followed in respect of the making of representations to the CHAI before the publication of any recommendations or the result of any studies under this section."
On Question, amendment agreed to.
Clause 58 [Additional functions]:
[Amendment No. 316 not moved.]
Clause 59 [Criteria]:
[Amendment No. 317 not moved.]
Lord Warner Lord Warner moved Amendment No. 318:
After Clause 60, insert the following new clause—
"CO-OPERATION BETWEEN CHAI AND THE REGULATOR

(1) The CHAI and the regulator must co-operate with each other in the exercise of their respective functions under Part 1 and this Chapter.

(2) In particular, for the purposes of subsection (1)—

(a) the CHAI must keep the regulator informed about the provision of health care by and for NHS foundation trusts;

(b) the regulator must give to the CHAI any information it has about the provision of health care by or for an NHS foundation trust which it considers would assist the CHAI in the discharge of its functions."

On Question, amendment agreed to.
Lord Warner Lord Warner moved Amendment No. 319:
After Clause 63, insert the following new clause—
"CO-OPERATION BETWEEN CHAI AND THE AUDIT COMMISSION
The CHAI and the Audit Commission must co-operate with each other in relation to matters in respect of which both have functions."
The noble Lord said: My Lords, throughout the passage of this Bill we have discussed the role that CHAI and the Audit Commission will have in relation to NHS bodies. We are clear that CHAI will be responsible for value-for-money studies in individual English NHS bodies or across a range of such NHS bodies.
The Audit Commission will, however, retain the function of undertaking studies for improving financial management in English NHS bodies. It will also appoint and guide the work of auditors of many NHS bodies and those auditors will cover at a local level many of the areas and issues within CHAI's remit. Amendment No. 319 seeks to strengthen the relationship between the two bodies by placing a duty on the bodies to co-operate in relation to those matters in respect of which they both have functions. In doing so, it also seeks to ensure that the bodies work together in reducing the burdens of inspection on the NHS.
Given the recent utterances on reducing inspection burdens by the Audit Commission and its chairman, I am confident that this amendment has their support. I beg to move.
Lord Clement-Jones: My Lords, I support the Minister's comments. It is eminently sensible and in line with the observation contained in the Better Regulation Task Force report. One of the issues we
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have debated throughout the passage of the Bill is the split of functions not only between CHAI and CSCI but also between CHAI and the Audit Commission. I believe that this duty of co-operation is sensible. They may have been the two Titans about which we spoke earlier, but perhaps this is a different set of Titans—my memory fails me. However, I am sure that both bodies will find it a welcome duty.
On Question, amendment agreed to.
Clause 65 [Right of entry: supplementary]:
Baroness Finlay of Llandaff Baroness Finlay of Llandaff moved Amendment No. 320:
Page 25, line 39, leave out "a" and insert "an anonymised"
The noble Baroness said: My Lords, Amendment No. 320 relates to the way in which electronically held records are handled. The Minister's amendment deals with many of the concerns that have arisen during previous stages as regards the way in which CHAI and CSCI can access confidential information. I am grateful to the Minister for having corresponded with several of us about these issues and outlining the meeting he had with Sir Ian Kennedy to discuss them further. The amendment in his name appears to link with the code of practice that has been drawn up with Sir Ian Kennedy, the General Medical Council, the Nursing and Midwifery Council and the National Consumer Council, about which there will be wide consultation.
The Minister's amendment does not deal specifically with electronic records and I have tabled Amendment No. 320 in order to ensure that anonymisation occurs. Anonymising electronic records is quite easy—simply with a substitution for different terms and fields which can render them anonymous quickly. However, hand-held records are extremely difficult and cumbersome to anonymise effectively. Given the legislation around electronically held records, it struck me as being important that there is a specific assurance that there will be anonymisation. It may be that the Minister in speaking to his own amendment will be able to give me the reassurances I seek. I beg to move.
Lord Clement-Jones: My Lords, I want to speak to Amendment No. 320A. We had an interesting debate in Committee which was informed by the Minister's notes to us. Again, the Minister has helpfully written about the code of practice. That is a significant step, but I should like to hear further from him on the role of the Secretary of State. There is the possibility of a considerable disagreement on the thrust of the code of practice. CHAI, the GMC and other bodies concerned with the protection of confidential information will have different interests. Who will resolve them? Who will be the referee? That is the key issue.
Amendment No. 320A is designed to answer those questions. I am not sure that the Minister's amendment yet does so, but I shall be interested to hear from him who will resolve the difficulties. It appears to us on these Benches that CHAI is solely in the saddle on this matter and other parties, perhaps

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not with equal powers but with override powers, can be brought into the equation if major problems arise in reaching agreement on the code of practice.
This is an important area of the Bill. The use of personal information is becoming increasingly important and we must be sure that this part of the Bill works.
Baroness Cumberlege: My Lords, I, too, have an amendment in this group; it is Amendment No. 323A. I am grateful to the Minister for introducing the code and putting it on the face of the Bill. He will remember that my solution was somewhat different from that suggested by the noble Lord, Lord Clement-Jones. He suggested the Secretary of State and I suggest the Patient Information Advisory Group, which was set up two years ago to look at patient information that was not anonymised and on which patients could not give their consent. The body was set up to scrutinise those applications.
I agree with the noble Lord, Lord Clement-Jones, that the Minister's amendment, although helpful, still puts CHAI in the saddle. One of my concerns is that CHAI will acquire the information; it will publish the code; it will consult persons it considers appropriate; and it will keep the code under review. I do not consider that to be a very good practice. I believe that we need an independent body. It seems to me strange that, where we have such a body which we know to work well, we do not use it.
I turn to the progress made by the Patient Information Advisory Group. It is interesting that, when that body was first set up, it was considered bureaucratic. Research applicants did not like it. The PIAG refused many applications because, I understand, the applications were so poor. The reasons given as to why patient consent could not be obtained were that it would be too difficult to do so or that patients would not want to be bothered. However, there was a strong suspicion that it was the applicants who could not be bothered.
I still appear to be the sole standard-bearer for the Patient Information Advisory Group, and am perhaps somewhat isolated in that context. However, I believe that in the PIAG we have an established organisation which is practical and which has a membership respected throughout the National Health Service with people of extremely high quality. We have a mechanism that works, and I am very disappointed that the Minister does not feel that we should use it, thereby avoiding a situation where CHAI would become judge and jury in its own case. That is not a good principle and certainly not a tradition in this country.
7.30 p.m.
Earl Howe: My Lords, very briefly I want to say to my noble friend that she need not feel isolated. I hope that the Minister will consider constructively her amendment in relation to the Patient Information Advisory Group. Surely the code of practice and the regulations need to be looked at independently. I have
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not been specific in my own amendments and I am not particularly speaking to them. However, I sympathise very much with what my noble friend said. I also thank the Minister for taking away this issue and dealing with it so constructively.
Lord Warner: My Lords, I am grateful to the noble Earl for his remarks. It is always a pleasure to be able to facilitate contact between the Opposition Front Bench and their Back-Benchers.
I shall speak, first, to government Amendments Nos. 381 and 382 to explain the Government's thinking. I shall then respond to the points raised by other noble Lords. Amendments Nos. 381 and 382 place a new statutory requirement upon CHAI and CSCI to prepare and publish a code of practice in respect of their access, handling, use and disclosure of confidential personal information. As we discussed in Committee, Sir Ian Kennedy has involved the GMC, the Nursing and Midwifery Council and the Consumers' Association in discussions about such a code on a voluntary basis. Perhaps I may refresh the memory of the noble Lord, Lord Clement-Jones. I believe that the two Titans to which he referred were the GMC and CHAI. I should not want him to have forgotten that memorable contribution.
However, I realise that noble Lords have remaining concerns that, unless the code is placed on a statutory basis, future chairs of the organisation might choose not to have in place such a code. I recognise that the handling of personal information is an extremely sensitive issue, particularly with respect to medical information, and it is right that organisations such as CHAI and CSCI, which have wide powers in respect of such information, should account for how they intend to handle it.
These amendments respond to noble Lords' concerns and will have the effect of placing the two commissions under a duty to prepare and publish codes of practice and to consult appropriate persons before doing so. Sir Ian Kennedy has informed me that it is intended that the CHAI code of practice should be in place on a statutory basis by April of next year.
Although the concerns about information expressed in Committee were focused principally on CHAI, the issue of CSCI's access to information was also raised. We believe it is appropriate that both commissions should be under a statutory duty to have a code in place. However, I want to be clear that the circumstances in which CSCI will need to access and use personal data are different from those for CHAI. It will need to do so on a more routine basis in order to ensure that vulnerable individuals are adequately protected.
Perhaps I may make it clear that CSCI will not routinely need to access personal medical records, although it may do so on occasion. It will, however, require regular access to social services records held by local authorities and social care records held by care

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homes. Those records may contain some medical information, such as information about a resident who needs equipment to enable him to get out of the bath because he has an artificial hip. CSCI will need, as the Social Services Inspectorate and National Care Standards Commission currently do, to look at social services records as a standard part of an inspection of a local authority, as poor record-keeping is often an indicator of poor social work practice.
Shadow CSCI came into being later than shadow CHAI and is now beginning work on a code of practice. I have written to the chair, Denise Platt, to ask about a possible timescale for putting a code of practice in place. I hope to be able to provide noble Lords with more information on that at Third Reading.
That is the background to the Government's thinking and the Government's amendments. Perhaps I may now turn to some specific points raised by noble Lords. In his amendment, the noble Lord, Lord Clement-Jones, also provides a role for the Secretary of State to approve such a code. I find it interesting that the Secretary of State, who would have been pushed out of the Bill if a number of other amendments from Opposition Benches had been passed, is now brought in as the wise arbiter on this issue. We do not believe that it is necessary for the Secretary of State to approve the code. We consider that CHAI and CSCI, as independent commissions with expertise in their respective fields, should be trusted to draw up their own codes, in consultation, as I said, with appropriate bodies. Our amendments make provision for that.
I turn to the points raised by the noble Baroness, Lady Cumberlege, concerning the Patient Information Advisory Group. As I said, our amendments provide that both CHAI and CSCI should consult appropriate bodies in drawing up a code of practice and that they should determine that procedure. I am sure that we would encourage CHAI and CSCI to utilise the Patient Information Advisory Group as a resource, but it will not be the only body with an interest in this area; nor do we believe it is right that either the Patient Information Advisory Group or, for that matter, any other single body should have a right of veto over the information that CHAI should be able to access through the code following an appropriate basis of public consultation.
I turn now to the points raised by the noble Baroness, Lady Finlay, about computerised information. We believe that the noble Baroness's proposal would cause significant problems for CHAI and the Assembly in carrying out their functions. For example, if they were investigating a case such as that of Dr Shipman, such a requirement could be detrimental to patient safety. On the other hand, the approach that we have taken means that the codes of practice will be able to deal with the issue of computer
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records, together with the issue of when it would be appropriate to anonymise them, but it would leave the bodies with the flexibility not to do so when doing so would prevent them exercising their functions properly and protecting the public.
In the light of those assurances, I hope that the noble Baroness will feel more confident and comfortable about not pressing her amendment. On the basis of the explanation that I have given, I commend the government amendments to the House.
Baroness Howarth of Breckland: My Lords, I am not sure whether this is the correct moment for me to ask a question. I probably should have raised it before the Minister sat down.
Baroness Finlay of Llandaff: My Lords, if I am not speaking out of turn, perhaps I may comment on what the Minister said. His words about the code of practice are welcome. When he spoke about computerised records, I hope he meant that in general practice they will be anonymised so that no clinician will have to work counter to the GMC guidance, which states that only where it is essential for the purpose may identifiable records be disclosed. That is where there is really significant danger of death or serious harm such as abuse. In those instances it would not be appropriate to anonymise the data. Like all noble Lords I sincerely hope that we never have another episode such as Shipman. However, I fear that there may be need occasionally for named records to be viewed.
Therefore, I am happy to withdraw my amendment but with the caveat that I shall seek reassurance from the Minister that it will be normal, routine practice for the records to be anonymised unless there are strong stated reasons otherwise.
Perhaps I may comment on the independent review of the records. The noble Baroness, Lady Cumberlege, highlighted a group with which those drawing up the code of practice would be well advised to consult. That group now has experience of considering various applications and formats of records. I would have hoped that on guidance too the Minister's words would have been a little stronger concerning the role of the Patient Information Advisory Group. However, I accept the Minister's comments on Amendment No. 320 and in the mean time beg leave to withdraw it.
Amendment, by leave, withdrawn.
Clause 66 [Power to require documents and information etc]:
[Amendments Nos. 320A and 321 not moved.]
Baroness Andrews: My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion I suggest that the Report stage begin again not before 8.41 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Northern Ireland (Date of Next Assembly Poll) Order 2003
7.41 p.m.
Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton rose to move, That the order laid before the House on 22nd October be approved [29th Report from the Joint Committee].
The noble Baroness said: My Lords, with the leave of the House, I shall speak also to the Northern Ireland Assembly (Elections) (Amendment) Order 2003, the Northern Ireland Assembly (Elections and Periods of Suspension) Act 2003 (Consequential Modifications) Order 2003 and the Northern Ireland Assembly (Elections and Periods of Suspension) Act 2003 (Consequential Modifications No. 2) Order 2003.
These orders are compatible with the European Convention on Human Rights and have or are being made in exercise of the powers conferred by Section 31(2) of the Northern Ireland Act 1998, Section 34(4) of the Northern Ireland Act 1998 and Section 6 of the Northern Ireland Assembly (Elections and Periods of Suspension) Act 2003 respectively.
The Northern Ireland (Date of Next Assembly Poll)—Order 2003 setting the election date as 26th November was made on 22nd October by my right honourable friend the Secretary of State. As noble Lords know, the Secretary of State made a Statement to the House that day setting out the progress that had been made over the previous days and weeks towards a restoration of devolved government on a stable and inclusive basis.
Although it was not possible to rebuild the atmosphere of trust we had hoped to see at the start of the election campaign, major steps forward have occurred. After the election the British and Irish Governments will work with the parties to resolve the issue as quickly as possible so as to enable devolved government to be restored to the people of Northern Ireland. We remain optimistic that that will be achievable, building on the progress we have made.
Noble Lords may be wondering why this election is being held on a Wednesday. The election has been called at short notice and we have sought to minimise the disruption to electoral office staff that would be caused by continuing counting into the weekend. There is also the advantage that the results should be known by the weekend as the two-day count will take place on the Thursday and Friday.
I also point out that for political and practical reasons this is the most realistic week in which we can hold an election. If the date was set any later there would be obvious implications because of the season with colder, darker nights and the onset of Christmas.
The Northern Ireland Assembly (Elections and Periods of Suspension) Act 2003 (Consequential Modifications) Order 2003, which was also made on 22nd October, changes the date from 1st December 2003 to 1 st February 2004 that the revised version of the electoral register, following the annual canvass, should be published by. It also provides that no notices of alteration need to be published during the four months prior to February 2004.
It may be helpful if I explain some of the background to this necessary change. The new electoral register was due to be published on its usual date of 1st December. However, because the Assembly election has been called, the Chief Electoral Officer and his staff will be involved fully in election preparations. All noble Lords will recognise that this effectively means that the Chief Electoral Officer will be unable to publish a new register on 1st December. This order puts back the publication deadline to 1st February 2004.
Furthermore, the order modifies legislation to stop a resettlement allowance being payable to former MLAs who have given a termination notice under a determination made by the Secretary of State. MLAs who have given such a notice would have already received payment equivalent to a resettlement allowance by virtue of the termination notice. It effectively ensures that such persons do not receive a double payment.
The draft Northern Ireland Assembly (Elections) (Amendment) Order 2003 amends rule 32 of the parliamentary elections rules set out in Schedule 1 to the Representation of the People Act 1983 as it is applied by Schedule 1 to the Northern Ireland Assembly (Elections) Order 2001 for the purposes of an election to the Northern Ireland Assembly.
The effect simply adds electoral commissioners, members of staff of the Electoral Commission and persons appointed by the Electoral Commission for the purpose of attending at polling stations on behalf of the commission. The order is being introduced now to be in use for the Northern Ireland Assembly election on 26th November and will apply to all elections to the Assembly unless amended or revoked. A similar order is due to be introduced for the whole of the United Kingdom next year in time for the European parliamentary elections.
We believe that allowing the Electoral Commission access to polling stations would be beneficial. It will allow the commission to report fully on the conduct of the election and will help provide clear evidence as to how electoral office staff implement key aspects of the Electoral Fraud Act, such as checking photographic identification. Furthermore, a number of Northern Ireland politicians have indicated to us that they are unhappy at inconsistencies in polling stations and the commission will be able to judge whether these complaints have any substance.
The final order before the House is the Northern Ireland Assembly (Elections and Periods of Suspension) Act 2003 (Consequential Modifications No. 2) Order 2003. This purely technical order modifies Section 118A(2) of the Representation of the People Act 1983, as it is applied to Northern Ireland Assembly elections by the Northern Ireland Assembly (Elections) Order 2001 in connection with provision made by Section 1 of the Northern Ireland Assembly (Elections and Periods of Suspension) Act 2003.
The effect of this simply ensures that the election expenses of individual candidates in relation to the forthcoming Assembly election are regulated in

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accordance with the statutory regime. It also ensures clarity as to when a person becomes a candidate for the purposes of that election.
I conclude by saying that we hope that the election campaign will be positive and constructive, and that after the elections we can build on the good working relationships between all the parties in Northern Ireland which have developed from their work together in the Executive and subsequently in the negotiations that have taken place since suspension.
I apologise for taking some time. These are important issues. I commend the order to the House.
Moved, That the order laid before the House on 22nd October be approved [29th Report from the Joint Committee].—(Baroness Farrington of Ribbleton.)
Lord Glentoran: My Lords, I thank the Minister for moving the order and for clearly explaining to your Lordships its purpose. From the beginning, this side of the House has supported the election and wishes to support the Government in all they are doing to make these elections more straightforward, honest and peaceful than perhaps some have been in the past.
The date was clearly explained by the noble Baroness. We are completely happy with it. On the question of altering the date of the new register, that clearly does not interfere with the election. When I first read the order I though that it might. It does not because the register would not have been produced anyway until 1st December. That clearly is a good decision.
The access of the commissioners to the polling stations seems ultra sensible and indeed very necessary.
I have one or two questions. I do not wish to get involved in anything to do with the election. First, I should like the noble Baroness to assure the House that all those measures enacted in what is now known as the Electoral Fraud (Northern Ireland) Act 2002 are up and running and that we can look forward to a more honest, straightforward and trustworthy result than perhaps we have been used to in Northern Ireland elections.
I sound one perhaps salutary note. This is an election to the Northern Ireland Assembly. That is as far as it goes. It is the Government's desire and our desire on this side of the House that, after the election, the Government will be able to reinstate the various institutions associated with Stormont and the agreement. But we should not kid ourselves. This is by no means a certainty. The IRA still have to do one or two things before all those institutions can be set up.
My party and I sincerely hope that that will happen in due course. We sincerely hope that we will have good, fair and well attended elections. By "well attended", I mean that there will be a good poll and a good turnout from the population of Northern Ireland. I sincerely hope that after these elections we
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can see devolved government in all its states, with all the institutions up and running and in full swing. I support the Government's orders.
Lord Smith of Clifton: My Lords, I too thank the Minister for introducing these very important orders. Perhaps I may say with the greatest of respect that the noble Baroness the Lord President of the Council should have introduced them, given their huge symbolic and substantive significance to Northern Ireland. I trust that this is not an augury of things to come. I do not believe that the late and very lamented Lord Williams of Mostyn would have missed this trick.
Today the "sage of Ulster" in his weekly column in the Irish Independent presented a pessimistic scenario regarding the Assembly elections. Dr Maurice Hayes predicted a low turn out, which would be quite unprecedented: Northern Ireland traditionally has high levels of voter turnout. This is not surprising perhaps, given the suspension of the Assembly for over a year. What was particularly debilitating was the decision—for no good reason as it turned out—not to hold the elections last May when they were due. The past six months have not merely been a waste of time, but have contributed to a loss of political momentum and will have fostered a great apathy and indeed some cynicism among the electorate.
The election campaign is under way and the people will make their choice. When the Assembly reconvenes, London and Dublin would be well advised to stand back and play a very modest role, leaving it to the parties to form an executive. It is up to the people of Northern Ireland and their elected representatives. If they fail to form a power-sharing executive—and I predict that this will take many months—in the end there will be a return to direct rule. But not as before. Does the Minister agree that the status quo ante is not an option? As I have said before, it will be direct rule, run by London in very close partnership with Dublin. In effect, a condominium. I say that to Ulster Unionist colleagues. No one with any democratic spirit will like that, and it is up to the newly elected Assembly to hammer out an agreement by which an executive can be resumed.
Lord Molyneaux of Killead: My Lords, I too am very grateful to the Minister. If I appear to be slightly critical—not of her but of the legislation—the purpose is to allow her to provide reassurance and explanation, because there is a degree of confusion on the ground.
It may be that there is some compelling reason for Parliament giving retrospective approval to many of these instruments. I concede that the practice of retrospective approval is not entirely novel or unusual; for example, in matters such as road traffic, speed limits or pub closing hours.
However, running through these orders is the notion that the candidate is required to conform to the provisions, so that they can appear on ballot papers and on lists of candidates. I assume that that authorisation may be a mere technicality, but I am not certain that that is understood. I was canvassed this

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morning by a candidate. I teased him by asking, "What are your credentials? I mean, are you a candidate?" "Oh, yes"—he said—"I am a proper candidate". I asked, "Well, how is it that their Lordships' House tonight is going to approve the procedure and the lists to which you are referring?" He was stumped for an answer. I did not indicate which way I was going to vote. I just left him to mull that one over.
It does no service to democracy to imply or suggest that the validity of candidates is dependent upon your Lordships giving or withholding approval tonight. What is the electorate to make of candidates canvassing last week and today, who have every reason to believe that they are validly nominated, when Parliament is only now—and presumably the other place has yet to tackle this issue—getting around to making these candidates honest men and women?
In one of the orders there appears to be a let out for someone not yet validly nominated, but enabled to declare himself or herself nominated. It is a kind of a do-it-yourself device in one of the clauses. It is in paragraph 2(2) of the Northern Ireland Assembly (Elections and Periods of Suspension) Act 2003 (Consequential Modifications No. 2) Order 2003. I wonder whether this has anything to do with the departure from the established practice. It confers on the candidate that,
"if on or before that date he is declared by himself or others to be a candidate at the election".
I am uncertain that that sits tidily with the Representation of the People Acts as I used to know them when I was a humble election agent aware of all the pitfalls.
Your Lordships will know that respect for democracy is already at a low ebb—mainly, but not only, in Northern Ireland. The perception is that conjuring tricks make too much impact on the body politic, especially in Northern Ireland. I assume that the Government share my view that democracy has just about survived a pretty fierce battering in recent months. Her Majesty's Government and Parliament must resolve to put an end to what the electorate already regard as a bit of sharp practice. A return to respect for democracy and democratic principles is urgently needed if we are to avoid further loss of faith in electoral verdicts and, as has already been said, look forward hopefully to the future after the election to establishing workable devolved government in Northern Ireland.
On those grounds, I beg all concerned to remember that after four weeks of confusion in Northern Ireland, democracy there is a tender plant.
8 p.m.
Baroness Park of Monmouth: My Lords, I am sure that the noble Baroness would agree that the degree of trust in the future that electors feel when they go to elections is important. I therefore return to the issue of decommissioning. The Prime Minister, the Taoiseach and Mr Trimble were clearly expecting that hard facts and figures would be given by the commission on the latest quantity and nature of the arms supposed to
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have been put beyond use. But in the event, General de Chastelain said that under the agreement with the IRA he was committed to give no detail either publicly or, as it turned out, even to the two Prime Ministers.
However, the decommissioning scheme based on the Northern Ireland Arms Decommissioning Act 1997, states at paragraph 26:
"Disclosure of information received by the Commission may occur where disclosure is necessary … for reasons of public safety"—
I should have thought that that would apply given the present situation in Northern Ireland—or,
"to fulfil the Commission's duty to report to the two Governments".
In August 2001, it was the commission, announcing the putting of some arms beyond use, that said without giving any detail that it was,
"satisfied that it would not further the process of putting arms beyond use to provide further details of that event".
That was a unilateral decision by the commission; it was not based on the legislation. That is one more example of the commission—unwittingly and for entirely honourable but, I think, innocent motives— following the IRA's agenda.
I raise that point because it concerns the issue of trust. The Government are still free to advance that matter and insist that something should be said. It makes nonsense of the whole issue of decommissioning if people cannot know what is the outcome. The Government believe in transparency, and I respect that. They owe it to the people about to vote using their legislation to say exactly what was decommissioned and how often the commission carries out the duty placed on it by the legislation to inspect all the arms caches that it has been shown.
That is one issue. The other is that on 3rd November, Mr Adams said in New York:
"anti-Agreement Unionists must accept an all-Ireland agenda if they want to see the return of devolved Government".
That is a formidable threat, and a clear one. He continued:
"Efforts to restore the institutions of the Agreement must proceed urgently after the election".
I can agree warmly with that; I hope that the Government do too.
My last question has been posed in a general way by my noble friend Lord Glentoran: has the machinery to ensure against vote-rigging that was planned almost two years ago—the computerised method—been put in place? Is it working? The last time we asked about that we were told that it required testing and was not quite ready. I should be reassured to know whether it is now ready and able to work.
Lord Laird: My Lords, I should like to draw your Lordships' attention to several issues regarding the orders before us today.
We must all bear in mind that when the Assembly election was postponed in May, the Secretary of State insisted that we needed to see acts of completion. The Prime Minister himself made that clear in October

1171
2002. That leads one to wonder exactly what acts of completion have taken place recently that would encourage and provide a foundation for the calling of the Assembly election on the 26th November.
Does the noble Baroness accept that the 26th November is merely a date that has been set for an election? The reality is that suspension has not been lifted from the Assembly. As such, can we take it that the Government are still insistent on there being transparent acts of completion before the suspension of the Assembly can be lifted and the executive re-established?
Secondly, I draw the attention of the noble Baroness to the rather odd sequencing of events of Tuesday 21st October concerning transparent acts of completion. The date for the election was announced at 7 a.m.— rather earlier than we had been led to expect. Moreover, we had been led to expect that General de Chastelain would have been able to provide considerably more detail about the IRA's act of decommissioning than he did later that afternoon. There was no transparency, no clarity, and no itinerary of weapons. As a result, confidence in the process was severely diminished. It was that which led the leader of the Ulster Unionist Party to, in his words, put the process on hold.
The Government, for reasons that are still not entirely clear, chose to waive the only leverage still available to them that would have helped to ensure the transparency we all sought. They chose to make the order for the elections to proceed. The Government had the opportunity to pull this process back to ensure that confidence and clarity were injected.
I do not want noble Lords to misinterpret my words as a statement against the elections. I and my party very much want power to be returned to the Northern Ireland Assembly. However, your Lordships must remember that while we are holding elections to the Assembly in a few weeks, the immediate re-establishment of the power-sharing institutions is not in fact guaranteed. Noble Lords must appreciate the potential for the Government's gamble to fail and for electoral results not to be favourable for the resumption of devolved administration.
All we have at present is an election date. Suspension has not been lifted. Can the noble Baroness tell us now whether suspension will be lifted once the votes have been counted? If we fail to retrieve the situation soon, we could find ourselves back in this House and another place in, say, six months' time, once again looking at orders such as those before us.
The noble Baroness must be very aware of the questions that I am raising, yet I ask her once again: why did the Government leave the fulfilment of Sinn Fein's obligations to carry out transparent acts of completion to chance, when they could have taken the initiative by insisting on the transparency that they insisted was a prerequisite for holding Assembly elections?
Baroness Farrington of Ribbleton: My Lords, I was saddened, unusually, by the comments of the noble
1172
Lord, Lord Smith of Clifton. I assure him that I have deputised—I hope, satisfactorily—for previous holders of the office that the noble Baroness, Lady Amos, now holds. I assure the noble Lord that the noble Baroness is fulfilling another important duty.
I thank all noble Lords for expressing support for the orders. I shall deal, first, with the issues that all noble Lords raised to some degree. We consider that the statements by the leader of Sinn Fein and by the IRA were major steps and confirmed commitment to exclusively peaceful and democratic means. The act of decommissioning overseen was very welcome; however, unfortunately, as noble Lords have recognised, it did not achieve the public confidence necessary. The noble Baroness, Lady Park of Monmouth, and others referred to that. We now have the Independent Monitoring Commission to give an independent and authoritative view on whether commitments are being upheld to ensure that the promise of a full and final closure of the conflict is a reality.
Noble Lords asked whether the lack of revelation of the detail of the decommissioning process was proper. It is for the IICD acting as an independent body to account for its actions, but we believe that General de Chastelain and his colleagues have acted throughout with integrity and professionalism. We have no reason to doubt that they have acted in line with their obligations.
In response to the noble Lords, Lord Smith of Clifton, Lord Laird, Lord Glentoran, and others, after the election, the British and Irish Governments will work with the parties to resolve the outstanding issues as quickly as possible to enable devolved government to be restored to the people of Northern Ireland. We intend to restore the institutions in Northern Ireland as soon as there is a realistic prospect of an inclusive executive being formed. We remain committed to the Belfast agreement as the only way forward for inclusive political progress. As my right honourable friend the Secretary of State for Northern Ireland said in another place, we will make proposals for the conduct of the review of the operation of the agreement before the end of the year. But the fundamental principles of the agreement are not a matter for negotiation.
The noble Lord, Lord Smith of Clifton, asked whether we agreed that there should be a condominium between London and Dublin if we have to return to direct rule. The noble Baroness, Lady Park of Monmouth, also touched on that issue. Naturally, the Government share the noble Lord's hope that it will be possible to restore devolved government quickly. It would not be proper for me to speculate in detail during the election campaign on what will take place in hypothetical scenarios. The Government remain committed to the agreement as the only sustainable basis for progress in Northern Ireland. Perhaps it would be appropriate to note at this stage that I am being extremely careful in the light of the fact that we are in an election period.

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The noble Baroness, Lady Park of Monmouth, and the noble Lord, Lord Glentoran, asked about the electoral registration computer system. The requirements of the new electoral register led to the installation of a new £1.5 million computer system in the summer of 2002. It has already proven to be successful in handling the requirements of the new legislation and producing the register on time. The system, which has introduced several security checks, has the capacity to reduce the likelihood of electoral fraud to an absolute minimum.
The new registration system necessitated a move to individual registration and away from household registration. In effect, it doubled the number of forms needed—from 650, 000 household forms to 1.2 million individual forms. I hope that that answers the point raised by the noble Lord, Lord Glentoran. I hope that the figures are correct; if there is a problem, I will speak to the noble Lords, Lord Glentoran and Lord Smith of Clifton, afterwards.
To a certain extent, all noble Lords echoed the sadness that the Government share. I agree with the noble Lord, Lord Molyneaux of Killead, that democracy is always to be treated as a tender plant, particularly in these circumstances. The noble Lord asked me about people declaring themselves candidates. Section 118A of the Representation of the People Act 1983, which the order modifies, refers to the possibility of a person declaring himself a candidate.
The noble Lord also commented on the date. I can assure him that the orders were agreed in the other place on 29th October through the urgency procedure. The noble Lord may have further detailed questions. Like him, I was an election agent many years ago, and I would never dare to answer a question off the cuff, lest the noble Lord be dissatisfied. It is complicated law, as all noble Lords taking part in the debate would agree.
I thank all noble Lords who have taken part in the debate.
8.15 p.m.
Lord Smith of Clifton: My Lords, before the noble Baroness sits down, I must say that in no way was I casting aspersions on her. As always, she has done a thoroughly competent job introducing Northern Ireland business. I am sure that the noble Baroness the Lord President of the Council has a heavy diary, but I just think that her advisers missed a trick tonight.
Baroness Farrington of Ribbleton: My Lords, I do not think that that needs a comment from me at this stage. I join all noble Lords who have expressed strong support for the proper conduct of the democratic process in Northern Ireland. I join all noble Lords in hoping that the result of the election will lead to the possibility of an urgent return to the full implementation of the Good Friday/Belfast agreement.
On Question, Motion agreed to

Northern Ireland Assembly (Elections) (Amendment) Order 2003
8.17 p.m.
Baroness Farrington of Ribbleton: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
Moved, That the draft order laid before the House on 22nd October be approved [29th Report from the Joint Committee].—(Baroness Farrington of Ribbleton.)
On Question, Motion agreed to.

Northern Ireland Assembly (Elections and Periods of Suspension) Act 2003 (Consequential Modifications) Order 2003
Baroness Farrington of Ribbleton: My Lords, I beg to move the third Motion standing in my name on the Order Paper.
Moved, That the order laid before the House on 22nd October be approved [29th Report from the Joint Committee.]—(Baroness Farrington of Ribbleton.)
On Question, Motion agreed to.

Northern Ireland Assembly (Elections and Periods of Suspension) Act 2003 (Consequential Modifications No. 2) Order 2003
Baroness Farrington of Ribbleton: My Lords, I beg to move the fourth Motion standing in my name on the Order Paper.
Moved, That the order laid before the House on 29th October be approved [30th Report from the Joint Committee].—(Baroness Farrington of Ribbleton.)
On Question, Motion agreed to.
Lord Davies of Oldham: My Lords, I beg to move that the House do adjourn during pleasure until 8.41 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.19 to 8.41 p.m.]

Health and Social Care (Community Health and Standards) Bill
Further consideration of amendments on Report resumed on Clause 66.
Earl Howe Earl Howe moved Amendment No. 322:
Page 26, line 29, at end insert—
"( ) the Office for Standards in Education;
( ) the Department for Education and Skills;
( ) the CSCI."
The noble Earl said: My Lords, in Committee I asked the Minister which of the statutory bodies would take the lead on children's issues and, in particular, child protection matters. He said that it would be CSCI. However, I still think that we must be clear about the means by which, in practice, CHAI will access personal named data relating to children, to which the Minister alluded earlier.
It may be that data in which CHAI has a direct interest and needs to access under the code of practice are held not by an NHS body, but by CSCI or Ofsted. Therefore, Amendment No. 322 explores that issue. It is a probing amendment, which I do not intend to press. I have considerable concerns about the free exchange of personal data between government agencies, which, although not possible at present, is implicitly envisaged in the recent Green Paper, entitled, Every Child Matters. The ability of CSCI to access personal data is being considered in the context of the Laming Report. Therefore, I accept that there is little that the Minister can say about that at the moment.
However, he mentioned that Ofsted would be asked to develop a protocol on joint working and information sharing. While that is highly desirable, it brings us back to the concerns raised in the earlier group of amendments. Who will decide whether the protocol is acceptable? Where will the safeguards lie in relation to its use? How is the Data Protection Act to be complied with?
On the previous occasion, the Minister made the point that the duty of co-operation and joint working was already in the Bill; therefore, there should be no need to write in a duty, as proposed in my amendment. Again, I am worried by that comment because it seems to imply that a duty of co-operation on its own would be enough to provide legal cover to either CHAI or CSCI—indeed, also to Ofsted—for the sharing of privileged information. I hope that he did not mean that, but that is how it reads in Hansard. The whole issue seems to be fraught with problems. Perhaps the Minister can shed a little further light on how these matters are being addressed by the Government. I beg to move.
Lord Warner: My Lords, I am not sure whether I will satisfy the noble Lord, but I shall press on. The amendment would expand the list of specified bodies to which the subsection refers. I shall try to address each of the suggested new bodies in turn.
We continue to believe that placing Ofsted under a duty to provide information in this manner to CHAI is not appropriate. Noble Lords will already be aware of the co-operation provisions in the Bill, as the noble Earl mentioned. Given the increased remit in relation to children that the recent Green Paper, entitled, Every Child Matters, proposed for Ofsted, it is proper that both bodies should develop together appropriate protocols about joint working and information sharing, rather than effectively making one body subservient to the other. Further, it is worth bearing in
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mind that we have put this Green Paper out to public consultation and we are awaiting the responses. It would not be altogether appropriate to pre-empt that consultation.
Noble Lords opposite have expressed surprise that we did not intend to place both parties under specific duties of co-operation. We fully expect that CHAI and Ofsted, as lead inspectorates in the areas of health and education, will want to work co-operatively and so believe that we do not have to spell this out on the face of the Bill. Ofsted is already able to co-operate with other inspectorates and has often done so, for example, as part of the Street Crimes Initiative. Certainly, as part of my recent experience as chairman of the Youth Justice Board, I saw that Ofsted co-operated very well with criminal justice inspectorates as regards the inspection of secure facilities for juveniles.
Like the Social Services Inspectorate and CSCI in due course, Ofsted is also a member of the local authority inspectorates forum, members of which co-operate and share information as a matter of good practice where this is necessary to promote joined-up working. Members of that forum will co-operate with CHAI where appropriate as a matter of course.
Secondly, this amendment proposes to place a duty on the Department for Education and Skills to provide information to CHAI. In our view, this would not be appropriate. Government departments such as the Department of Health and DfES will need to have regular contact with CHAI and, indeed, CSCI. Should the inspectorates require information held by these government departments, there is no reason why it should not be provided as long as the requirement is justified. There is no need or justification for placing a duty in law on the Secretary of State.
I should also like to draw the attention of the noble Earl to the fact that this power under Clause 66 is designed to enable CHAI to obtain information from inspected bodies, not government or, in the case of Ofsted, non-ministerial departments.
That finally brings me on to the reference to CSCI. As I have just outlined, this clause is intended to allow CHAI to obtain information it requires from inspected bodies—we have made it clear in subsection (2) that this relates to NHS bodies in England and Wales as well as cross-border special health authorities and other persons providing healthcare for or exercising the functions of such bodies or local authorities.
Both CHAI and CSCI are already under duties to co-operate with each other where it seems to them to be appropriate to do so under Clause 118. Such co-operation would include the sharing of information and, again, I therefore consider this amendment to be unnecessary.
I have sought to give a full explanation why I do not think that this amendment is either necessary or appropriate. Turning to the matter of data protection, all I would say to the noble Earl is that these are all public bodies and the requirements of data protection legislation would apply to them in the normal way.
8.45 p.m.
Earl Howe: My Lords, as I said, this was intended as a probing amendment to tease out whether there would be a free exchange of data between CHAI and CSCI. It certainly appears that I have succeeded in my aim. It worries me that the duty of co-operation set out in the Bill is apparently sufficient to override common law duties of patient confidentiality. That is how I interpret the Minister's reply and I am somewhat shocked.
Lord Warner: My Lords, perhaps I should have made the position more clear. CSCI and Ofsted will be constrained by the requirements of the common law duty of confidentiality as well as the requirements of data protection as regards information they will be able to share. It is not true that the common law duty of confidentiality is set aside.
Earl Howe: My Lords, that is very reassuring and I am glad that I gave the Minister the opportunity to put it on the record. I shall consider these matters further, but the Minister has been most illuminating. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 323 and 323A not moved.]
Clause 68 [Reviews and investigations relating to Wales]:
[Amendments Nos. 324 and 325 not moved.]
Lord Warner Lord Warner moved Amendment No.326:
Page 27, line 29, at end insert—
"( ) the availability and quality of information provided to the public about the health care;"
On Question, amendment agreed to.
[Amendments Nos. 327 to 330 not moved.]
Clause 69 [Reporting to Secretary of State and regulator]:
[Amendment No. 331 not moved.]
Clause 70 [Right of entry]:
[Amendment No. 332 not moved.]
[Amendment No. 333 not moved.]
Clause 74 [Introductory]:
Lord Warner Lord Warner moved Amendment No. 334:
Page 30, line 39, at end insert—
e availability and quality of information provided to the public about the services;"
On Question, amendment agreed to.
[Amendment No. 335 not moved.]
Clause 75 [Information and advice]:
[Amendments Nos. 336 and 337 not moved.]
Clause 77 [Annual reviews]:
[Amendments Nos. 338 to 340 not moved.]
Lord Warner Lord Warner moved Amendment No. 341:
Page 32, line 12, at end insert—
"( ) The Secretary of State may, after consulting the CSCI, by regulations make provision as to the procedure to be followed in respect of the making of representations to the CSCI before the award of a performance rating under this section."
On Question, amendment agreed to.
Clause 78 [Other reviews and investigations]:
[Amendment No. 342 not moved.]
Lord Warner Lord Warner moved Amendment No. 343:
Page 32, line 41, at end insert—
"( ) The Secretary of State may, after consulting the CSCI, by regulations make provision as to the procedure to be followed in respect of the making of representations to the CSCI before the publication of a report under this section."
On Question, amendment agreed to.
Clause 79 [Failings]:
[Amendments Nos. 344 and 345 not moved.]
Lord Warner Lord Warner moved Amendment No. 346:
Page 33, line 29, at end insert—
"( ) The Secretary of State may, after consulting the CSCI, by regulations make provision as to the procedure to be followed in respect of the making of representations to the CSCI before the publication of a report under this section."
On Question, amendment agreed to.
Clause 80 [Studies as to economy, efficiency etc]:
Lord Warner Lord Warner moved Amendments Nos.347 and 348:
Page 33, line 32, leave out "may promote or undertake" and insert "has the function of promoting or undertaking"
Page 34, line 5, at end insert—
"( ) The Secretary of State may, after consulting the CSCI, by regulations make provision as to the procedure to be followed in respect of the making of representations to the CSCI before the publication of any recommendations or the result of any studies under this section."
On Question, amendments agreed to.
Clause 83 [Criteria]:
[Amendment No. 349 not moved.]
Clause 88 [Power to require information etc]:
[Amendments Nos. 350 and 351 not moved.]
Clause 93 [Studies as to economy, efficiency etc]:
Lord Warner Lord Warner moved Amendment No. 352:
Page 38, line 35, leave out "may promote or undertake" and insert "has the function of promoting or undertaking"
On Question, amendment agreed to.
Clause 95 [General considerations]:
Lord Warner Lord Warner moved Amendment No. 353:
Page 39, line 25, at end insert—
"( ) the availability and quality of information provided to the public about the services;"
On Question, amendment agreed to.
Clause 100 [Transfer of functions to CHAI and CSCI]:
[Amendments Nos. 354 to 356 not moved.]
Clause 101 [General functions of CHAI]:
[Amendments Nos. 357 to 360 not moved.]
Clause 102 [General functions of CSCI]:
[Amendment No. 361 not moved.]
[Amendment No. 362 not moved.]
Clause 108 [Boarding schools and colleges]:
Lord Clement-Jones Lord Clement-Jones moved Amendment No. 363:
Page 46, line 6, at end insert—
"( ) In exercise of its functions by virtue of this section, the CSCI shall—

(a) prepare a report on the discharge by the school or college of relevant functions;

(b) without delay send a copy of the report to the school or college; and

(c) make copies of the report available for inspection at its offices by any person at any reasonable time;

and may take any other steps for publicising a report which it considered appropriate.
( ) Any person who asks the CSCI for a copy of the report shall be entitled to have one on payment of a reasonable fee determined by the CSCI; but nothing in this subsection prevents the CSCI from providing a copy free of charge when it considers it appropriate to do so."
The noble Lord said: My Lords, during the course of a long Committee stage one of my favourite quotations was made by the noble Baroness, Lady Andrews, when addressing the precursor to the amendment. She said:
"I must confess that the amendment has taken a slightly different direction from the one I anticipated".—[Official Report, 20/10/03; col. 1391.]
With my noble friend Lord Addington sitting behind me, her comments have a kind of analogy with the Welsh rugby team, the centres taking a rather different line from the one anticipated by the English team yesterday. My noble friend Lord Thomas has already alluded to that game, and yet I was supporting the English team at the time.
The noble Earl, Lord Howe, used an elegant phrase and referred to, I believe, "the superior set of amendments that follow". I look forward to hearing what the noble Baroness has to say in regard to the remaining amendments. I beg to move.
Baroness Andrews: My Lords, there is no doubt that at this time of night the Chamber assumes the proportions of a confessional in so many ways. It may be that one of these days the noble Lord will be supporting the things made in heaven.
I hope to be able to give the noble Lord all the good news that he seeks. I have tabled Amendments Nos. 364 and 365 in direct response to the concerns he raised in Committee. I hope that they will enable him to withdraw his amendment as they seek to achieve the same effect.
If I understood correctly what the noble Lord said in Committee—and he had undertaken some superb detective work—he was concerned that the power under Clause 109 is not sufficiently broad to require the CSCI to report on all aspects of how a particular
1180
school or college has discharged its functions. In particular, he was concerned that the clause required the NCSC—and, in future, the CSCI—to report only on the fact that it had exercised its powers of entry under Section 87(5) of the Children Act and not on what it had found in the course of exercising these powers.
Parliamentary counsel has confirmed that under the existing drafting the clause achieves the effect that the noble Lord is seeking. However, we are anxious to avoid future misunderstanding and, to ensure that the effect of the clause is absolutely clear on the face of the Bill, we have tabled Amendments Nos. 364 and 365 as clarifying amendments. I hope that meets the noble Lord's concerns.
As I promised in Committee, I have also tabled Amendment No. 366 to make it clear that CSCI is required to send a copy of any report to schools and colleges and make copies available at its offices for inspection by any person. As I said in Committee, we would expect it to do so in any case, but this amendment places it on a statutory basis. On that basis, I hope that the noble Lord will withdraw his amendment.
Baroness Howarth of Breckland: My Lords, I welcome the amendment. There have been considerable difficulties in relation to some boarding schools where it has been difficult to have reports in the public domain. I am grateful to the noble Lord, Lord Clement-Jones, for raising this issue and to the Government for clarifying it.
Lord Clement-Jones: My Lords, with the form of words that the Minister has used, both in correspondence and tonight, she is effectively saying that the Government believe that the clause means what we thought it meant, but, to put it beyond peradventure, they will amend it accordingly. I am very happy with that as a compromise and very happy that the Government have put down further amendments. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 109 [Boarding schools and colleges: reports]:
Baroness Andrews Baroness Andrews moved Amendments Nos. 364 to 366:
Page 46, line 10, after "subsection (5)" insert "in relation to a child"
Page 46, line 10, at end insert "on whether the child's welfare is adequately safeguarded and promoted while he is accommodated by the school or college"
Page 46, leave out lines 11 to 13 and insert—
"(9B) Where the Commission or the National Assembly for Wales publishes a report under this section, it must—

(a) send a copy of the report to the school or college concerned; and

(b) make copies of the report available for inspection at its offices by any person at any reasonable time."

On Question, amendments agreed to.
Baroness Barker Baroness Barker moved Amendment No. 367:
Before Clause 111, insert the following new clause—
"COMPLAINTS
(1) Complaints under this Act may be made by an individual or a body of persons, whether incorporated or not.
(2) A complaint may be submitted in respect of—

(a) the exercise by an NHS body of any of its functions;

(b) the provision by any person of health care for which the body is responsible;

(c) the provision of an NHS service by a health professional supplied under private contract; and

(d) the provision of services by the body or any other person in pursuance of arrangements made by the body under section 31 of the Health Act 1999 (c. 8) (arrangements between NHS bodies and local authorities) in relation to the exercise of the health-related functions of a local authority.

(3) A complaint may be initiated by—

(a) the person aggrieved;

(b) his personal representative;

(c) a member of his family;

(d) an independent advocate, or

(e) some body or individual suitable to represent him"

The noble Baroness said: My Lords, I am rather sorry that we cannot continue these discussions in a similar vein. I think the form of words that my noble friend Lord Clement-Jones was searching for was that the Government agree with what he proposed at an earlier stage. Had that been the Minister's response this time, we could have settled this issue very quickly.
We considered in Committee the key area of complaints. The noble Baroness, Lady Andrews, gave a characteristically full and detailed response at that stage, for which we were very grateful. Therefore, it is somewhat disappointing to see the limited nature of the amendments which the Government have tabled as a result. The noble Baroness understood the points we were making about the need to have clarity about the process under which people can bring complaints.
We on these Benches start from a standpoint of wishing to see complaints, and, in particular, resort to litigation for complaints within the NHS, minimised. Litigation is a plague within the NHS, and we are seeking ways in which we can prevent matters escalating.
In Amendment No. 367, we have set out what we think is a clear, coherent format for a complaints procedure which would satisfy the large majority of people who bring complaints against the NHS. We also welcome government Amendment No. 370 which states that there must be clarity about those to whom complaints may be made. That is very necessary, given the plethora of bodies involved in assisting people with complaints. However, we on these Benches find Amendment No. 373 somewhat inadequate. It does not go into detail about the way in which complaints will be effectively handled.
Amendment No. 372 is a proposal that we discussed last time, whereby small ex gratia payments to an upper value set in regulations could be made in respect of lesser injuries that have occurred to people and could avoid more complex complaints and
1182
investigations. As I said earlier, it would often obviate the necessity of taking legal action. We believe that is important, because a lot of people are currently being taken in by adverts for no-win, no-fee claims; when the process is completed, the claimant ends up with very little indeed. It would be preferable for those in the NHS who deal with such matters, and for those bringing complaints, to have a mechanism for that, as it would keep them out of long and costly legal proceedings.
An expert group convened by the Scottish Executive has recommended introducing ex gratia payments into the Scottish NHS complaints procedure. While one need not always follow nations that are proud, often right but hopeless at rugby, it is from time to time to be commended. In England, the Clinical Disputes Forum has recommended compensation should be available through the NHS complaints procedure. We believe that is a wise way forward. I beg to move.
9 p.m.
Earl Howe: My Lords, I shall speak to Amendments Nos. 368 and 369, which would require the first regulations under Clauses 111 and 112, setting up the new complaints procedures, to be subject to the affirmative procedure. I am afraid that it is confession time: I must apologise to the House for failing to heed the Minister's strictures in Committee about forgetting Wales. I confess that the amendments are defective in that respect. However, with that acknowledged defect, I hope that they may be treated as probing amendments.
We had a useful debate about complaints procedures in Committee, where the noble Baroness, Lady Andrews, gave comprehensive responses. She reminded us not only of the significant issues that will be dealt with under the regulations setting up the new complaints systems but also that it will be the first time that complaints procedures will be the subject of regulations, direction-making powers having been used in the past.
In Committee, we tabled amendments requiring all orders to be subject to the affirmative procedure. In the light of our discussions in Committee I have modified that to relate only to the first regulations. Many detailed issues need to be worked out and many sensitive areas, such as confidentiality of data, need to be got right in the regulations. The Minister was not, of course, able to give us chapter and verse in response to various detailed questions in Committee because the draft regulations are not available. We believe that the importance of the first regulations is such that Parliament should have an opportunity to scrutinise them under the affirmative procedure. I concede that the Delegated Powers and Regulatory Reform Committee did not recommend that but, equally, the Government's memorandum to the committee did not fully reveal the extent of the changes that the new regime would bring about.
Baroness Finlay of Llandaff: My Lords, I shall speak to Amendment No. 372, which stands in my name. The amendment would ensure that compensation systems

1183
and complaint systems were kept separate. Complaints and compensation systems serve entirely different purposes. Compensations act to make good, in so far as money can, the harm caused through actual negligence. The patient pursuing compensation must demonstrate harm caused by a shortfall of care, not simply that the care was unacceptable to the patient.
By contrast, the complaints procedure should be designed to explain exactly what has happened and why. Patients should then be free to pursue a legal claim for compensation if that is what they choose, armed with the facts. Linking complaints and compensation is likely to deter clinicians from being open. The award of compensation will inevitably be seen as a reflection of culpability and the severity of the error made by the doctor. Awards could well be reported in the local press, and adverse publicity will reduce public confidence in the NHS. That goes against the declared wish of the Department of Health to move away from the current blame culture to a more open NHS, in which everyone works together to learn from adverse incidents and near misses.
Incorporating compensation into a complaints procedure creates the significant risk that complaints will not be readily resolved, leading to a greater bureaucratic burden on the NHS. It could result in a two-tier system, with claims worth less than £5, 000, for example, being determined on some woolly notion of acceptable standards, and those over the threshold being considered against more rigorous standards. The link between the two could also create a disincentive to be satisfied with an apology, which is a matter to which I referred in Committee. It is an uncosted proposal that could cost the NHS vast sums of money.
Baroness Andrews: My Lords, I am sorry to disappoint the Liberal Benches regarding this amendment but perhaps I can offer an acceptable explanation.
Clause 111(1) is intended to set out in general terms what a complaint may be about. Amendment No. 367 would broaden who may make a complaint and set out in slightly more detailed terms what a complaint may be about.
The proposed subsection (1) would allow complaints to be made other than by individual patients. That is where the problem starts. I am not sure that the noble Baroness intended that complaints could be made, for example, by contractors providing services to the NHS, but that would be one effect of the amendment. It may be, however, that the intention is to allow complaints to be made on behalf of one or more patients by a representative body—and I understand the reason why this might be put forward. However, there is a problem with that approach. The focus of the complaints system must be on the individual patient—that is what we have been about in the consultation process—and his or her particular care and circumstances. There are other and more appropriate means by which groups of patients or carers, or representative bodies may raise their
1184
concerns about care, for example, through the newly established patients forums, or directly with the health or social care organisations involved. We very much value and welcome the effort they make to support patients who make complaints.
Proposed subsection (2) raises fewer concerns, but I am afraid that I must return to what I said in Committee—that it would put too great a level of detail on the face of the Bill. We believe that regulations are a better and more effective way of doing this. As regards proposed subsection (3), I assure the noble Baroness that it is our intention that regulations will make provision for all those listed in paragraphs (b) to (e) to make a complaint as representatives of a complainant. We believe that regulations are the right way to do that for the following reasons.
The amendment would allow almost anyone to represent an individual patient but makes little reference to the patient him or herself, his or her consent to having the complaint made and the involvement he or she might have in the process. The amendment is too narrow. We consider that regulations are needed in this area to provide important detail to deal with issues of consent, incapacity or cases where a judgment has to be made about the suitability of a representative. I therefore believe that this amendment would not add any value to the Bill. Regulations, on the other hand, subject to appropriate consultation—I stress that—would actually increase the overall effectiveness of its provisions. I hope that the noble Baroness will look kindly on that explanation.
I turn to the probing Amendments Nos. 368 and 369. I am shocked that the noble Earl forgot Wales again considering that he seems to be completely preoccupied with it in other parts of the Bill. These amendments would have the effect of requiring that the first regulations made under these clauses are treated under the affirmative resolution procedure. We believe that that would cause problems.
Section 191(4) of the Bill stipulates that any power to make regulations under this Act is exercisable by statutory instrument. This has been normal practice in relation to the regulation-making powers of all such legislation covering the regulation of health and social care services. It is also normal practice for the negative resolution procedure to be used for the making of these regulations. It was significant that the Delegated Powers and Regulatory Reform Committee remarked in its report of September 2003 that since its inception the NHS has left a great deal to subordinate legislation subject to the negative procedure and directions—it is worth reiterating that—and that the basic framework has been maintained on successive reorganisations, including those effected by various enactments of recent years. The committee concluded that it did not consider that the number of delegated powers in the Bill was cause for concern.
As regards the complaints clauses, noble Lords will be aware that the committee drew to the attention of the House the fact that disclosure is authorised to

1185
enable complaints to be considered notwithstanding any common law rules of confidence that would otherwise prohibit or restrict disclosure. We had a full and frank exchange of letters with the committee and it was satisfied with the explanation. It has not recommended changes to the regulations on complaints.
That indicates a degree of satisfaction with the process. In addition, in terms of transparency and public interest, we have been very open throughout our debates about the reasons for reforming the way in which complaints are handled under the procedures. We set out a very clear programme, NHS complaints reform—Making things right, which was published in March. It sets out the way forward for reform. In Committee, I stressed that we were aiming for a system that streamlined and simplified the complaints system, clarified roles and responsibilities and involved patients and service users. The clauses make clear our intentions on how that will be covered in regulations.
I reiterate assurances that we are committed to involving all stakeholders in the public discourse to ensure that we get the details of the procedures right. I stress again that we will be consulting on the content of the regulations to ensure that they reflect the needs of patients, service users and others. That will, of course, include consultation with the Data Protection Commissioner. That is a very important part of what we are going to do.
As I made clear in Committee, and as the noble Lord mentioned this evening, the clauses provide for the first time for the details to be subject to regulations. It is important that the regulations will build on the structure of the existing provisions. That vastly improves the current provision, whereby the complaints procedures are subject in some cases to regulations and in others only to a variety of directions. That change will strengthen the complaints procedure.
The regulations will provide for who may complain and about what, what people can expect. by way of a full and prompt response and, where appropriate, a review of the complaint by a body completely independent of the organisation complained about. They will also place responsibility with health and social care organisations for making effective responses to complainants.
For all those reasons—those on the practice and those relating to the provisions that we are making for comprehensive consultation—I hope that noble Lords will be persuaded that it is not necessary to make the regulations subject to affirmative resolution procedure.
I shall turn to Amendment No. 372 and the words of the noble Baronesses, Lady Finlay and Lady Barker. We dealt with a similar amendment in Committee when the noble Baroness, Lady Finlay, was unable to be with us. I am pleased that she was able to speak to the amendment this evening. Amendment No. 372 is to do with making financial redress available through the complaints procedure for severe inconvenience caused by administrative error.
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As I said in Committee, NHS bodies are already able to make ex gratia payments where legal liability would otherwise be conceded, and NHS bodies will continue to have that flexibility under the reformed NHS complaints procedure. The amendment would also apply to social care but, again, there is already provision for payments to be made by local authorities where they consider that their actions amount to maladministration. None the less, the noble Baroness makes the valid point that NHS bodies, unlike other similar public bodies, are not able to make financial redress available for severe inconvenience caused by administrative error. That issue would benefit from further deliberation.
I say that because, as I mentioned in Committee, the Chief Medical Officer has carried out an extensive review of the way in which the NHS handles cases that may involve clinical negligence. The consultation document, Making Amends, was published in June 2003. It included recommendations designed to draw the systems for dealing with complaints and clinical negligence more closely together. Subject to the result of that consultation, we shall be considering the alignment of the complaints and clinical negligence systems. We shall do that in terms of process—for example, the recommendation that the possibility of legal action should not halt the complaints system, bringing it to a crashing halt, as it does now—and in terms of outcome, examples of which are explanations, apologies and compensation.
On compensation, I should say that the consultation on Making Amends will also consider the link between complaints and payment. It will look at the arguments for and against. I can therefore assure both noble Baronesses that we will consider the points raised by the amendment as part of the consultation on Making Amends.
I turn finally to our own amendments. They have received a slightly meagre welcome, but I shall press on with them.
Amendments Nos. 370 and 371 are essentially technical drafting amendments recommended by parliamentary counsel. Amendment No. 370 has been tabled for the sake of completeness. It makes clear that the regulations stipulate not only who may complain and about what, but also, as the noble Baroness, Lady Barker, said, to whom the complaints may be made.
Amendment No. 371 is necessary to ensure the consistency of the clause with Clauses 111(1) and 112(1), which concern the handling and consideration of complaints. Amendment No. 373 makes clear that regulations under the Bill may make provision requiring persons handling complaints to make information available to the public. That is our response to an amendment proposed in Committee by the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Barker. We pointed out that we were sympathetic at that time. The noble Baroness seems not to be quite satisfied, but we have made a gesture in response to her points and we hope that it will be sufficient.

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The intention of our policy has always been—I do not think that I need to remind noble Lords of it—that information about the complaints procedures should be made available to members of the public free of charge. The amendment makes that commitment explicit in the Bill.
I hope that the noble Lords will withdraw their amendment.
9.15 p.m.
Baroness Barker: My Lords, as ever the Minister has put in an impressive performance and addressed every point one by one. I draw comfort from the fact that one of the main reasons for her resisting Amendment No. 367 was the existence of patient forums. In light of our debates earlier this afternoon, I take that as a heartening sign.
It has been useful to go over the ground again. I accept the noble Baroness's identification of a deficiency in the amendment; namely, the absence of any mention of consent and incapacity. She will know that I will again be discussing those issues in another place tomorrow afternoon. That is a fair criticism.
I am heartened to learn that the regulations will recognise the intent of subsection (3). Most people who are in acute hospitals are so ill that they are in no condition to make a complaint. It is the people about them who see what is wrong who, for good reason and reasons linked to incapacity, need to make complaints.
I also take heart from the Minister's comments about the alignment of the complaints and negligence procedures. I hope that there is a positive outcome to that. Perhaps I should not have been so ungracious in my reception of her amendments. Following her fuller explanation, I welcome them a lot more warmly than I did about 10 minutes ago. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 111 [Complaints about health care]:
[Amendment No. 368 not moved.]
Clause 112 [Complaints about social services]:
[Amendment No. 369 not moved.]
Clause 113 [Complaints regulations: supplementary]:
Baroness Andrews Baroness Andrews moved Amendments Nos. 370 and 371:
Page 48, line 35, at end insert—
"( ) the persons to whom complaints may be made;" Page 48, line 38, after "making" insert ", handling"
On Question, amendments agreed to.
[Amendment No. 372 not moved.]
Baroness Andrews Baroness Andrews moved Amendment No. 373:
Page 49, line 7, at end insert—
"( ) The regulations may require any person or body who handles or considers complaints under the regulations to make information available to the public about the procedures to be followed under the regulations."
On Question, amendment agreed to.
Baroness Cumberlege Baroness Cumberlege moved Amendment No. 373A:
Before Clause 118, insert the following new clause—
"REVIEW OF DELIVERY, SCRUTINY AND ACCOUNTABILITY ARRANGEMENTS
The Secretary of State must order a review, within 18 months of the commencement of this Act, of the delivery, scrutiny and accountability arrangements of the Department of Health, and public bodies including executive and non-executive non-departmental bodies already involved in the regulation and inspection of health care, including the case for an NHS agency, as a non-departmental public body, for England."
The noble Baroness said: My Lords, perhaps I may first dispel possible confusion about there being two amendments in my name, one of which has been withdrawn. They were grouped together. I shall move Amendment No. 373A, to which I shall speak, and withdraw Amendment No. 411. I withdraw it because it was pointed out to me that Amendment No. 411 was a wrecking amendment. I do not wish to wreck the remains of the Bill and I am sure that the Government feel that sufficient damage has already been done to it.
The amendment would continue my campaign to find a mechanism to distance the NHS from the day-to-day interference from Whitehall.
The noble Lord, Lord Clement-Jones, referred to sporting analogies. My game is not so much one of rugby; it is more a game of tennis with long, boring, monotonous rallies. I gave your Lordships a health warning that I would bore for Britain and I fear that I am getting rather good at it. But I am encouraged because in Committee the Minister, in his courteous reply to me, said:
"I sympathise entirely with the noble Baroness's wish to avoid excessive central interference in the running of the NHS".
He went on to say:
"I am sure we can all agree with that overall intention".
He also said that it is an idea,
"which I freely acknowledge has had appeal in many quarters over many years.—[Official Report, 7/10/03; col. 168.]
He later said that:
"the rationale… has always been the same; to improve the quality of NHS management by removing it from nefarious political micromanagement".—[Official Report, 7/10/03; col. 169.]
The Minister cited previous commissions and inquiries, which after discussion rejected the idea, beginning with the Guillebaud report in 1950. But in 1950 we were recovering from the Second World War and we were still coping with rationing. He went on to quote the Royal Commission of 1979. In 1979 we were still in the grip of the trade unions and the noble Baroness, Lady Thatcher, was elected Prime Minister for the first time. Clearly, her priorities were to get the economy right and sort out the trade unions.
The Minister then quoted Sir Roy Griffiths. I worked with Sir Roy Griffiths as a member of the NHS Policy Board. Sir Roy relied on the regions to act as the umbrella to safeguard the service through the flak raining down from above and to prevent the NHS from causing problems upwards to Ministers. As a regional chair, I remember the pressure and the

1189
unpopularity, but I believe that we were a useful service. However, regions are no longer with us. My point is that quoting the past is not always helpful in that the climate, the environment, the altitudes and the priorities were different 20 years ago.
Later in the debate, I asked the Minister what the Government meant by "devolution". He replied:
"We are trying to give more local autonomy and freedoms to manage assets and design services around the needs of local people".—[Official Report, 7/10/03; col. 198.]
I thought that that was an admirable definition, especially as I did not give notice of the question. That is exactly my intention, but I recognise that I have tried to proceed too quickly: too quickly for a Government who have had such a recent conversion from centralised control to the merits of local autonomy within the NHS.
When in Committee, noble Lords debated the concept of an agency. The Minister expressed fears that the new agency would itself impose a centralised model of control over the whole system. I find that strange when the Government have set up 192 different agencies in other areas of their former responsibilities. Despite some early struggles, they appear to work well.
However, I recognise that my impatience has not been helpful. I need to pace these reforms in order to win government support. There are many other people, within Parliament and beyond, who share my intentions and methods, not least the independent King's Fund of which I am a senior associate. As the Minister will be aware, the noble Lord, Lord Haskins, chaired a group at the invitation of the King's Fund which made sensible recommendations advocating an NHS agency for England. Tomorrow, the noble Lord, Lord Haskins, is due to publish his review of Defra, which advocates the principle of greater separation between responsibility for policy development and implementation. The noble Lord is convinced that this will improve delivery, accountability and clarity of roles and responsibilities. I know that he sees this work as a parallel with the NHS.
On 30th October, the Secretary of State for Health, Dr John Reid, appeared before the Health Select Committee and gave a commitment to "look" at the members of staff working in the arm's length health and social care agencies as well as "their role". My amendment builds on this commitment. I seek to expand the remit of such a review and, most importantly, ensure a more independent perspective on the questions raised. I believe that the model provided by the review of rural policy undertaken by the noble Lord, Lord Haskins, will provide an excellent template for an appropriate approach to a comprehensive review of the Department of Health and the public bodies, including executive and non-executive bodies associated with the NHS.
The Secretary of State clearly does not want the NHS to be managed from Whitehall but he wants Whitehall to ensure that realistic national standards are set and achieved. He seeks the commitment of NHS staff and wishes to ensure enough freedom for
1190
them to innovate and be responsive to patients' needs. That is a tricky balance and it requires three things: realism when it comes to managing public expectations; staff and public ownership of standards and targets; and a system to ensure clear and separate accountability for policy and delivery. It takes more than devolutionist intentions to achieve a new and better relationship between government and the NHS.
In conclusion, I welcome the Secretary of State's intention to hold a review of the newly restructured Department of Health and the myriad of new arm's length bodies spawned by the Government in both health and social care. The pity of it is that the review is to be conducted by the department itself, and it is hardly a disinterested bystander. I believe that keeping the review narrow and in-house and identifying the problem and the solution before the work has started gives a startling illustration of the problem.
The remit needs to be broadened. The review needs to take into account the relationships between government, the Department of Health, Parliament and non-governmental public bodies, including the possibility of an NHS agency for England. It needs to be independent; it needs to be transparent; and it needs to be modelled on the lines of the review undertaken by the noble Lord, Lord Haskins. I beg to move.
Earl Howe: My Lords, I congratulate my noble friend on introducing her amendment so eloquently. In the course of our Committee debate on her earlier amendment, many practical issues were raised about how an agency would work. More recently, we have had the interesting publication by the King's Fund. That publication takes the thinking further but it is still not a blueprint. All who have thought about this matter know that many issues require further debate.
I believe that my noble friend's amendment presents an elegant way forward. The details of delivery, scrutiny and accountability of healthcare are most intimately known by the Government and the Department of Health. By asking the Secretary of State to order a review of those matters for all the elements of the public sector involved in healthcare and by including the case for an NHS agency, we have an excellent opportunity to take the debate to another level. It will be a level that is informed by practical knowledge of operating the current system.
Lord Clement-Jones: My Lords, I support the noble Baroness, Lady Cumberlege, in her Amendment No. 373A. I confess to having felt considerable scepticism in Committee about a charge towards an NHS agency or NHS plc. I looked on it as a potentially monolithic approach to reform of the health service. However, what has emerged from that debate has considerable merit, particularly in the way in which it is phrased, talking, as it does, about the review of the delivery, scrutiny and accountability arrangements of the Department of Health.
Even during the past five or six years, we have seen considerable changes in the Department of Health. When I first became health spokesman, we had a Permanent Secretary and a chief executive of the NHS,

1191
and those two jobs were different. Then, of course, came the merger between the two jobs and I believe that that has had a considerable impact on the micro-management aspect of the NHS. The review would tease out precisely whether that is the best arrangement for the future. As the noble Baroness mentioned, the Government are conducting their own review and it is a fairly radical one, as the noble Lord, Lord Warner, has reminded us on Report.
The other aspect of the amendment that I particularly welcome is the fact that it would review the system of regulation. We have dwelt, not only in Starred Questions but also during debates on the Bill, on the question of the sheer volume and weight of regulation currently in the health service with so many bodies entitled to inspect, regulate, enter upon NHS premises, and so on and so forth. The amendment would provide for a valuable review of all of that and of whether consolidation of regulation could take place. That, again, would be an enormous advantage. If nothing else, it should propel the Government into some sort of consideration of the track down which they are going as regards regulation, which seems to become ever more complicated as the number of bodies created multiplies, not least as a result of the Bill.
9.30 p.m.
Baroness Finlay of Llandaff: My Lords, some powerful points have been made in support of the amendment, which I also support. I congratulate the noble Baroness, Lady Cumberlege, on the re-wording of the amendment. I had my name added to the previous one and, if I had had time, would have added it to this eloquently worded amendment. I shall not reiterate the arguments. I have a great fear that the number of bodies being created will cause overlap and gaps in the aspects of the service they inspect, which such a review may well identify.
On a much lighter note, one talks about a twinkle in the eye prior to conception. I begin to wonder whether the regulator is the twinkle in the eye. This is an independent body. It seems to be set up quite separately. I wonder whether we may find in future years that the regulator is the germ from which the independent NHS agency may eventually grow to leave us with less political interference in the NHS.
Lord Warner: My Lords, no one can but admire the consistency and persistence of the noble Baroness, Lady Cumberlege, in this area. I pay tribute to her willingness to run a marathon. Perhaps I may gently suggest that whatever training schedule she undertakes, even one as demanding as that of Paula Radcliffe, I am not sure that at the end of it she will necessarily have convinced us in this particular area.
I am grateful to the noble Lord, Lord Clement-Jones, for his views on the radicality of the Department of Health review and the review of arm's length bodies. All I would gently say to people who ask for an independent review is that it is fairly common practice in the public and private sectors for
1192
organisations to review themselves before turning themselves loose on an independent review. It is common practice to take stock of where you have got to in the history of your activities to see whether you should change practice. That is what the Government are doing as regards the Department of Health review and the review of arm's length bodies.
Although Amendment No. 373A would not establish an agency, it would make it a requirement for an independent review to be carried out on the delivery of the Government's health policies, including the case for setting up an agency. It will not surprise noble Lords that the Government think that it is for Parliament to debate the arrangements for the delivery, scrutiny and accountability of the Government's health policies. That is just what this House and another place have done during the passage of the Bill in relation to the creation of NHS foundation trusts.
I also remind the noble Baroness of the existence of the Select Committee on Health, whose function as defined in its terms of reference is to examine on behalf of the House of Commons the expenditure, administration and policy of the department and its associated bodies.
How would a review into how this Government deliver, scrutinise and account for their health policy be any different to those reports already undertaken by the health Select Committee? There is also the issue of stability, which we tried to put on the record at the last discussion of this issue. How will a review within 18 months of commencement of the first provisions of the Act—or, indeed, according to this wording, possibly within 18 months of the commencement of the last provision of the Act—help to create stability for people working within these organisations, and for those on the outside? That would be a destabilising move. The requirement that the independent review look into the case for setting up an NHS agency is a matter for the Government. I believe that in Committee I set out good reasons why such an agency was not necessary. I do not intend to repeat those reasons over and over again. I would just briefly say that the issue of accountability to Parliament is for Ministers.
Secondly, there is the possibility—and I repeat this despite the fact that it is unacceptable to one or two Members of your Lordships' House—that an NHS agency could create just the kind of centralised model of control over the NHS that we all do not wish to see. One cannot guarantee that setting up that agency would not have that particular effect.
We do not believe that it is right to move in the direction—
Lord Clement-Jones: My Lords, I am absolutely fascinated by the Minister's analysis. Can he answer this question. How many NHS reform Bills have there been since the Government came to power? The

1193
Minister was talking about creating instability and so on. That does not seem to have been a consideration of any previous Secretary of State.
Lord Warner: My Lords, the sinner who repents, I would have thought, should be welcomed in this House.
Amendment No. 373A would require us to carry out a review within 18 months of commencement of the Act. We do not think that that is appropriate. On the point raised by the noble Lord, Lord Clement-Jones, about reducing the number of regulatory bodies, the Bill reduces the number of bodies which inspect and review health and social care. As we have said on previous occasions, there is the Better Regulation Task Force, to which the Government will be responding before the end of the year.
Baroness Cumberlege: My Lords, I thank my noble friend Lord Howe, the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Finlay, for supporting the amendment. Noble Lords will remember that when we discussed this issue in Committee only one noble Lord, besides the Minister, rejected the concept.
I like the idea of the regulator being the twinkle in the eye. I am sure that that will attract many people to the post. The purpose of the review is to sort out the relationships between Parliament, between government, between regulation, and between all the new bodies that have been set up. The noble Lord, Lord Clement-Jones, is absolutely right. From time to time we get more bodies added. Yet, it is like Topsy; we do not know where it is going, how it is growing or what the implications will be when it is seen as a whole.
I reject totally the Minister's suggestion that it is only for bodies to look at themselves internally, especially when they are accountable to the nation as a whole. I think the noble Lord has only to look to see what Defra has done. An independent body was set up under the chairmanship of the noble Lord, Lord Haskins, to do something which the Government clearly thought was very sensible indeed.
We think that perhaps the National Health Service has an even greater role to play in the nation's affairs than Defra. The National Health Service affects so many lives. It seems to us right that this internal review should take place. I shall think very seriously before bringing the matter back at Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 121 [Power to assist]:
Lord Warner Lord Warner moved Amendment No. 374:
Page 54, line 3, leave out "body" and insert "authority"
The noble Lord said: My Lords, Amendments Nos. 374 and 375 are technical amendments designed to ensure that, as was always intended under Clause 121, CHAI and CSCI might provide assistance to individual persons such as Ministers or inspectors of schools.
Amendments Nos. 374 and 375 remove the reference to a "public body" and replace it with a reference to "public authority". Parliamentary counsel advised that there was a risk that "public body" could be construed as referring only to corporate bodies, and exclude individual persons such as Ministers. "Public authority" ensures that individual persons are included. As I said in earlier debates, that will allow the Secretary of State to ask CHAI and CSCI to work with other inspectorates on work such as the street crimes initiative. I beg to move.
On Question, amendment agreed to.
Lord Warner Lord Warner moved Amendments No. 375 and 376:
Page 54, line 4, leave out "body" and insert "authority"
Page 54, line 5, leave out subsection (2).
On Question, amendments agreed to.
Clause 126 [Reports: CHAI]:
Earl Howe Earl Howe moved Amendment No. 377:
Page 56, line 5, at end insert—
"( ) a statement showing the ways in which the CHAI has taken steps during the year to minimise the regulatory impact of its activities."
The noble Earl said: My Lords, I shall speak also to Amendment No. 378. The amendment reprises in a slightly different form the case that I attempted to make in Committee that CHAI and CSCI should be required as a statutory discipline to demonstrate that they are making conscious efforts to minimise the burdens that they place on those whom they inspect and audit.
The Minister made some powerful points in Committee and Sir Ian Kennedy has said some encouraging things about ensuring that CHAI does not descend on an organisation when it does not need to. We can only welcome that approach. Nevertheless, we will not always have Sir Ian Kennedy at the helm of CHAI. The best run organisation can easily start to slip backwards and adopt less than desirable habits.
The principles of good regulation—which are not the same as economy, efficiency and effectiveness— should be followed by every regulatory body, year in and year out. Those principles are transparency, accountability, proportionality, consistency and a duty to act only where necessary. To require the body to state in its annual report the ways in which it has sought to adhere to those principles—in other words, the practical steps that it has taken to do so—does not seem a great deal to ask.
The Minister said that he would read my previous amendment and consider whether anything more needed to be done in the light of the Better Regulation Task Force report. I look forward to hearing what he has to say in that regard. I beg to move.
Baroness Howarth of Breckland: My Lords, although accepting that all regulation must be efficient and effective, I hope that the noble Earl does not assume that inspection and regulation always have a negative impact. We should also recognise the value

1195
and benefits to service users; we should not always consider the difficulties caused but also the benefits in quality and improvement of service.
Lord Warner: My Lords, as the noble Earl said, in Committee, we debated amendments that would have required CHAI and CSC1 to publish updated regulatory impact assessments showing the effect of their activities on the bodies that they regulate. As I mentioned during that debate, the Better Regulation Task Force report on independent regulators recommended that all regulators should make available for scrutiny a regulatory impact assessment on all new major policies or initiatives. It did not, though, recommend an annual regulatory impact assessment.
I then offered to consider further what we might be able to do in light of the report. The Government will be responding to the report before the end of the year and will probably begin to implement the recommendations that we accept during 2004.
In the case of CHAI and CSCI, if the Government decide to accept the task force's recommendation in relation to a regulatory impact assessment for new policies and initiatives introduced by regulators, my view is that that will not require an amendment to the Bill. Instead, under Clauses 128 and 129, the Secretary of State could direct CHAI and CSCI to have regard to the Government's response to the Better Regulation Task Force report, if that was felt necessary to ensure that the commissions did so. We are already considering whether we can indicate our likely response to that particular recommendation in relation to CHAI and CSCI.
The new amendments as tabled would require an annual statement about the activity of the inspectorates. It could be an additional burden on the regulated bodies. As I said, the Better Regulation Task Force has not recommended that, and, in my opinion, it would be unnecessary. In any event, the inspectorates could include in their annual reports any information about regulatory impact that they deem necessary to carry out their functions under the current provisions in the Bill.
Earl Howe: My Lords, I thank the Minister for that helpful reply. I had hoped that the merits of such an amendment might be seen as self-evident, not just for the sake of businesses and voluntary organisations, important as they are, but for the good of the NHS. I take absolutely the point made by the noble Baroness, Lady Howarth; the impact of CHAI and CSCI should not be measured purely in negative terms. On the contrary, I am the first to recognise that they will be a force for good. There is an issue about burdens, but I shall not press the point. I am glad that it has been registered. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 127 [Reports: CSCI]:
[Amendment No. 378 not moved.]
Clause 128 [Duty to have regard to government policy: CHAI]:
[Amendment No. 379 not moved.]
Clause 129 [Duty to have regard to government policy: CSCI]:
[Amendment No. 380 not moved.]
Lord Warner Lord Warner moved Amendments Nos. 381 and 382:
After Clause 137, insert the following new clause—
"CODE OF PRACTICE: CHAI

(1) The CHAI must prepare and publish a code in respect of the practice it proposes to follow in relation to confidential personal information.

(2) The code must in particular make provision about the CHAI's obtaining, handling, use and disclosure of confidential personal information.

(3) Before publishing the code, the CHAI must consult such persons as it considers appropriate.

(4) The CHAI must keep the code under review and, if it considers it appropriate, from time to time publish a revised code (and references in this section to the code include any revised code).

(5) For the purposes of this section "confidential personal information" means information which—

(a) is obtained by the CHAI on terms or in circumstances requiring it to be held in confidence; and

(b) relates to and identifies an individual."

After Clause 137, insert the following new clause—
"CODE OF PRACTICE: CSCI

(1) The CSCI must prepare and publish a code in respect of the practice it proposes to follow in relation to confidential personal information.

(2) The code must in particular make provision about the CSCI's obtaining, handling, use and disclosure of confidential personal information.

(3) Before publishing the code, the CSCI must consult such persons as it considers appropriate.

(4) The CSCI must keep the code under review and, if it considers it appropriate, from time to time publish a revised code (and references in this section to the code include any revised code).

(5) For the purposes of this section "confidential personal information" means information which—

(a) is obtained by the CSCI on terms or in circumstances requiring it to be held in confidence; and

(b) relates to and identifies an individual."

On Question, amendments agreed to.
Lord Skelmersdale Lord Skelmersdale moved Amendment No. 383:
Before Clause 146, insert the following new clause—
"REGULATIONS UNDER PART 3
Notwithstanding the provisions of section 191(5), the first regulations under this Part shall be made in a draft of the regulations laid before Parliament and approved by a resolution of each House of Parliament."
The noble Lord said: My Lords, in moving this amendment, I shall speak also to the consequential amendment to Clause 191. As I forecast at the time, we have learnt quite a lot more about the Government's proposal to extend the scheme for the NHS treatment cost element of successful motor insurance claims to employers' liability, personal liability and product

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liability. As we learned it at a time when most sensible people were tucked up in bed, we were perhaps not quite as responsive as we might have been.
We know well how the current scheme operates. So far as concerns this amendment, we now know two things about the new scheme. It will take not one but nine different statutory instruments to operate it. When I spoke in Committee, it was eight, but the Government in their wisdom—I accept their wisdom—will very shortly add an extra set of regulations in Clause 189, under Amendments Nos. 385D and 385F.
We know that the provisions will not come into effect until after the Department for Work and Pensions has completed its review of employers' liability. As the noble Lord, Lord Warner, said, that will be in the autumn. Armistice Day is upon us, and by my calendar, he has just three weeks to deliver. Given that it has taken four years just to agree with the Law Commission that the extended scheme is justified, the prognosis cannot be good. Even if the Department for Work and Pensions report is produced soon, it will take time for the department to consider it and then to draft the orders. Most importantly, the longer the operation takes, the more need there will be to scrutinise the orders properly. As we all know well, praying against them is a hit-and-miss affair, especially as noble Lords' attention will naturally be elsewhere after the Gracious Speech.
When the Bill arrived here, all eight orders were to be made by negative resolution. The Select Committee on Delegated Powers and Regulatory Reform commented adversely on two of them, and the Government graciously conceded. They moved amendments in Committee to say that the Secretary of State may not alter the exempted payments in Schedule 10 without laying an affirmative instrument—one of the things that I called for in an amendment in Committee. When I asked for all the eight regulations to be affirmative, not surprisingly, given that my proposal was overkill, I got a dusty answer from the Minister. That said, he opened the door just a chink for this amendment by moving that the first regulations made under Clause 149(2), which covers the information required in the certificates needed to operate the new scheme, would be made by affirmative resolution.
So far, so good—but not good enough. Regulations are to govern the appeals procedure under Clauses 153, 154 and 155. Regulations are to govern the provision of information under Clause 156. Regulations are to be made regarding the method of payment to individual hospitals or ambulance trusts, under Clause 158. More are to be made covering lump sums, periodical payments and so forth. Yet more are to be made to limit the liability of insurers.
As if that were not enough, regulations are to be made regarding treatment at non-health service hospitals. According to evidence given to the Select Committee, this last is likely to come on stream long after the others. Now there are regulations to govern qualifying claims under the new subsection. How can
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the Minister say that they all exist? I also challenge him to say that those that exist now will not differ by virtue of extending the scheme. I beg to move.
Lord Warner: My Lords, the fact that we were able to offer what seemed to the Government to be a pragmatic response to the concerns of the Select Committee on Delegated Powers and Regulatory Reform about Clauses 146(12) and 149(2) does not mean that we conceded anything in any way with regard to the regulation-making powers elsewhere in Part 3.
The Select Committee was concerned about two specific issues. One was that the powers in Clause 146(12) could expand the scope of the scheme, and the other was that the powers in Clause 149(2) included setting the tariffs for the new scheme. The Select Committee felt that those issues merited the closer scrutiny attached to the affirmative resolution procedure, and the Government were content to offer a compromise solution in response to those concerns.
With hardly any exceptions, the other regulation-making powers in Part 3 simply reflect powers that already exist in the Road Traffic (NHS Charges) Act 1999. Regulations made under that Act are all subject to the negative resolution procedure. I find it difficult to understand why the noble Lord feels that that is inappropriate to this Bill, given the exceptions on which we have already made concessions.
I see no reason why this House and the other place need to get involved in debates on the technical details of such a scheme. We would be spending time not on matters of principle but on the minutiae of the scheme's operation—arrangements that, in many cases, have already been thought through in relation to the road traffic scheme and operate perfectly well. Noble Lords opposite always complain about the Government micromanaging the NHS—a suggestion that we refute. Now, they seem to want to bring Parliament into the micromanagement business.
The Government have recognised the legitimate concerns of the Delegated Powers Committee and have responded to them. If the Select Committee is content for the majority of powers in Part 3 to remain subject to annulment procedures, I can see no reason why that should not also be good enough for the rest of your Lordships.
I have already given the reasons why the Government do not accept Amendment No. 383. It would also be illogical to accept Amendment No. 409. To do so would be to backtrack on our commitment to the Delegated Powers Committee on Clause 149(2). We cannot accept either of the amendments.
Lord Skelmersdale: My Lords, it seems to have escaped the Minister's notice that the reason we are suspicious is that the scheme is being changed. The

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Minister was good enough just now to say that, by virtue of the change, many of the nuts and bolts, I think he said—
Lord Warner: Minutiae.
Lord Skelmersdale: "Minutiae"—that will do very well. He said that they were already reflected in existing regulations but, none the less, these things will change. We simply do not know what will happen. I recognise that my second amendment was purely consequential and that my first amendment was defective, which the Minister did not tell me. I shall read carefully what he said and we shall decide whether to come back to this issue for a final push at Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 146 [Liability to pay NHS charges]:
Baroness Finlay of Llandaff Baroness Finlay of Llandaff moved Amendment No. 384:
Page 64, line 28, at end insert—
"( ) This section does not apply in cases of clinical negligence."
The noble Baroness said: My Lords, extending the proposed NHS costs recovery scheme to clinical negligence cases will be counter-productive. It will damage the morale of clinicians and is liable to add further to the cost of NHS bureaucracy, with no hope of any savings. General practitioners work without the full range of expert diagnostic equipment. Not surprisingly, delayed diagnosis claims are the most common in primary care. A delay in diagnosis can be negligent, but it is misleading to describe it as "wrongdoing", as it was described in Committee. It is an error that occurs despite a GP's best efforts to help the patient. Under the scheme, in a delayed diagnosis case, a GP could be liable to pay a hospital tens of thousands of pounds, with a hospital doctor as the arbitrator of the cost of treatment. That is likely to damage relationships between hospitals and community doctors and damage morale further.
Disease is specifically excluded from the proposed recovery scheme because the Department of Health has accepted that it would be difficult to quantify the cost due to the complexity of the treatment path and the period of treatment. Inclusion of clinical negligence within the scheme would create exactly the same problems. By its very nature, clinical negligence occurs from the clinical management of a pre-existing condition or disease. Determining the proportion of costs, which should be attributed to treatment of the original disease as against treatment resulting from the negligent act, would be a lengthy and complex process and could cost the compensation recovery unit more money in terms of bureaucracy than it would raise.
In effect, general practitioners are small businesses. The burden of the initiative will fall on the GPs rather than the primary care trusts with which they contract. Their situation is therefore different from that of hospital doctors employed in the NHS. Their case should be reviewed in that light.
I apologise that I was not present in Committee for the previous discussions on this part of the Bill, but I was sick. I apologise, too, if I misled the House with my previous comments. I was present for the earlier parts in Committee, but I did not speak to the clauses which we recently discussed.
Lord Warner: My Lords, perhaps I may gently remind the House and the noble Baroness that, as presently constructed, the costs recovery scheme will provide £150 million per year for patient care within the NHS. We do not accept that including clinical negligence in the costs recovery scheme will set one doctor against another. Costs recovery is contingent on a successful compensation claim being made. There is no reason to suppose that hospital doctors treating a patient who has made or subsequently makes a claim against a GP will know anything about that claim unless and until they are asked to provide a clinical opinion in relation to the claim itself.
They are highly unlikely to be asked to provide any information for the purposes of NHS costs recovery if the claim is successful. That information is purely factual and generally is provided by clerical staff, not clinical staff. That being the case, it is difficult to understand how it can be seen as detrimental to open reporting or damaging to doctors' morale. At present, under the road traffic NHS charges scheme, all a trust has to do is confirm that the patient received treatment at a hospital run by that trust, on what dates, and whether the treatment was given on an in-patient or an out-patient basis.
Doctors rarely even know that NHS costs recovery is taking place, nor does the driver against whom the claim is being made. It is largely an administrative matter dealt with by the insurers. In most cases, it is unlikely that the situation will be any different either for hospital doctors or for GPs under the extended scheme.
It is also not right to suggest that clinical negligence is related only to pre-existing conditions or diseases. Failed sterilisations, hip operations or emergency operations to set broken limbs that go wrong are just a few examples of potential clinical negligence claims that have nothing to do with pre-existing conditions.
I shall not go through all the other arguments against this amendment, but I have outlined the main points. If general practitioners and other primary care providers make mistakes or if they fail to the extent that a patient or anyone else to whom they owe a liability has had to have hospital treatment to put matters right, then how can it be wrong for them to have to bear the proper cost of their negligence? Having said that, it is not, of course, GPs who will usually bear the cost; rather it will be whatever professional indemnity organisation they belong to, so it is not right to say that the additional costs per se will fall on GPs themselves.
We do not think that the amendment is appropriate and I hope that, in the light of the arguments that I have outlined, the noble Baroness will feel able to withdraw it.
10 p.m.
Baroness Finlay of Llandaff: My Lords, I thank the Minister for his reply, but I must admit that I have not been convinced by his arguments on negligence. I can see how a road traffic accident may be clear cut, and that clerical staff may provide the information, but certainly in clinical practice, a delay in or failure to make a diagnosis is an all too common occurrence. Such cases are often negligence where someone has failed to put together all the pieces in the jigsaw and reach the diagnosis—which may be a barn door diagnosis and quite clear.
A further difficulty arises in the failure of bones to heal after fracture. That may not be due to negligence, but perhaps because the patient's clinical condition mitigates against healing taking place or, indeed, that the patient's activities have mitigated against healing.
It would be inappropriate to pursue this matter on Report, but I would like to discuss it with the Minister away from the Floor of the House. It may be helpful if we set up a meeting to discuss some of these issues in more detail. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 385 not moved.]
Clause 149 [Information contained in certificates]:
Lord Warner Lord Warner moved Amendment No. 385A:
Page 68, line 17, at end insert "or regulations under subsection (8B)"
The noble Lord said: My Lords, those who took part in the Committee debate on Part 3 during the middle of the night will be aware that the noble Lord, Lord Hunt of Wirral, made a number of interesting and important points about the way in which personal injury claims are resolved these days. He argued persuasively that in a climate where the courts are busy encouraging the parties to a claim to try or at least to think about other ways of dealing with it, there was a case for considering whether some of the alternative dispute resolution procedures, in particular mediation, ought to be included among the processes that could be accepted as a means of confirming contributory negligence findings for the purposes of calculating NHS costs.
Arguably, by focusing on a range of court-endorsed processes, the Bill could be perceived as working against the drive in other parts of government to move away from dependence on the court system. I agreed to discuss the noble Lord's concerns with him in a separate meeting, but by the time that meeting took place, as a result of further research and consideration of his points, the Government had already reached the view that his arguments were sound and that it would be right to include mediation in the Bill as another acceptable means of identifying contributory negligence within a settlement.
These amendments give effect to that decision. Amendments Nos. 385D and 385F allow mediated agreements to be taken into account where they meet prescribed criteria. Amendments Nos. 385A, 385B, 385C and 385G are consequential on Amendments Nos. 385D and 385F.
One issue that we shall need to guard against is the risk of creating an unintentional loophole that would allow some less scrupulous compensators to abuse the mediation process just to get an exaggerated agreement on contributory negligence or, indeed, where both parties to the dispute might collude to do so. It was to avoid that kind of problem that we originally felt that formal court endorsement of the arrangements was necessary.
To be able to protect against it in mediated settlements, the amendments have been framed so as to give the Secretary of State and the Scottish Ministers powers to prescribe in regulations various aspects of the mediation process. We are still looking at the best way to do this but it might include, for example, specifying the qualifications of the mediator, or the nature of the process or its outcome that would be acceptable, as well as setting out exactly what evidence would need to come from the mediation in relation to contributory negligence. It would not be enough for the mediation report simply to say, "The parties agreed that there was an element of contributory negligence and this has been taken into account". There would need to be an explicit indication of the extent to which it had been taken into account.
Nevertheless, although there are still some quite important issues that we will need to consider further when drafting the regulations on this, the Government are now satisfied that, in terms of principle, including mediation is the right thing to do. I beg to move.
Lord Hunt of Wirral: My Lords, I thank the Minister not only for what he has said tonight but also for the speedy way in which he made himself and his officials available for urgent consultation. I am grateful for the manner in which he has come forward with these amendments.
I accept that there is a need to guard against abuse and I share his resolve to ensure that there is no loophole. I also welcome the way in which he has framed the amendments because it is necessary to ensure that the mediation is of a prescribed description. As he will know, I shall be arguing that there are a number of kinds of alternative dispute resolution that should be recognised, but I agree that it is only when it is carried out under the guidance of a fully accredited mediator that one can have confidence in the process. I thank the Minister for the way in which he has come forward so quickly with these amendments.
Lord Skelmersdale: My Lords, I can well understand why my noble friend Lord Hunt is so pleased with the Minister's actions in this regard. I am, too. But, to put a little barb into the Minister, I should say to my noble friend that I hope he remains alert because the regulations referred to in subsection (8B) of Amendment No. 385D will be introduced by negative resolution.
On Question, amendment agreed to
Lord Warner Lord Warner moved Amendments Nos. 385B to 385D:
Page 69, line 31, after first "under" insert "or by virtue of
Page 69, line 46, at end insert "or regulations under subsection (8B)"
Page 70, line 9, at end insert—
"(8A) For the purposes of subsection (8B), a claim made by or on behalf of an injured person is a qualifying claim if—

(a) it is settled by mediation of a prescribed description, and

(b) the damages payable under the settlement are to be reduced to reflect the injured person's share in the responsibility for the injury in question.

(8B) Regulations may make provision as to the circumstances in which the amount (or amounts) specified in a certificate relating to a qualifying claim is (or are) to be that (or those) which would be so specified apart from the regulations, reduced by the same proportion as the reduction of damages."
On Question, amendments agreed to.
Lord Hunt of Wirral Lord Hunt of Wirral moved Amendment No. 385E:
Page 70, line 16, at end insert—
"( ) Before making any regulations under subsection (2), the Secretary of State or the Scottish Ministers (as the case may require), or both, shall consult with such persons as they think appropriate."]
The noble Lord said: My Lords, in moving the amendment, perhaps I may take a more formal opportunity to thank the Minister for meeting with my colleague Paul Parke of Beachcroft Wansbroughs and I, together with Alistair Kinley, Policy Adviser, Liability, with the Association of British Insurers. During the course of that meeting—and in a letter which I understand has been placed in the Library— the Minister very kindly set out in some considerable detail his response on a number of points.
The members of the Association of British Insurers will be greatly reassured that the Government have clearly restated their intention not to extend the recovery of NHS treatment charges retrospectively and, moreover, that insurers will be consulted as and when implementing regulations are to be drafted and when any changes are subsequently made. It is also very helpful that the Minister has made it absolutely clear that this will not happen until after the employment liability reviews are completed.
However, I seek to draw the Minister further. When we debated the issue of consultation in Committee, the Minister said that it goes without saying that the Government would consult. I know "it goes without saying", but it would be helpful and reassuring to have the Government's commitment now to consultation, not only with members of the Association of British Insurers but also with all interested parties.
I am also greatly reassured that the Minister has set out what I believe is the Cabinet Office's code on written consultation. I have not yet had the opportunity to peruse this code, and it would be helpful if the Minister could make it available to me. I am sure there is probably a fast route to obtaining it, but it would be helpful to see it between now and Third
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Reading. On the basis of the reassurances that I know the Minister is about to give, I do not think it will be necessary to press this amendment. I beg to move.
Lord Warner: My Lords, I am grateful to the noble Lord for his comments; I understand why he was concerned. As I said to him when we met and discussed the matter, the Department of Health, like every other government department, is fully committed to the principles, practices and, indeed, the spirit of the Cabinet Office's code of practice on written consultations. I will endeavour to let the noble Lord see a copy of that code of practice as soon as possible.
The code makes clear the expectation that consultation should take place on any matter which would have an impact on business, charities and voluntary organisations or the general public. The regulations governing the operation of the NHS cost recovery scheme clearly fall into that category and I can see no reason why the Government would want to go against the Cabinet Office guidance on this. However, the fact remains that the principle of consultation is now so firmly embedded in our collective consciousness that I do not believe it needs to be specified on the face of the Bill. I hope the noble Lord will feel that the assurances I have given, which will cover many of the interests about which he is concerned, will be covered in that consultation process, and that he is able to withdraw his amendment.
Lord Hunt of Wirral: My Lords, I am, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 152 [Review of certificates]:
Lord Warner Lord Warner moved Amendments Nos. 385F and 385G:
Page 72, line 40, at end insert—
"( ) Regulations may make provision as to the circumstances in which the Secretary of State or the Scottish Ministers must review a certificate relating to a claim which, after the certificate is issued, becomes a qualifying claim (as defined in section 149(8A))."
Page 73, line 6, after "under" insert "or by virtue of
On Question, amendments agreed to.
Lord Warner Lord Warner moved Amendment No. 385H:
Page 73, line 11, at end insert—
"( ) But the Secretary of State or the Scottish Ministers may not vary a certificate so as to increase the amount, or the aggregate amount, specified unless it appears to him or them that the variation is required as a result of his or their having been supplied with incorrect or insufficient information by the person to whom the certificate is issued."
The noble Lord said: My Lords, those who took part in the debate on Part 3 in Committee will recall that the noble Lord, Lord Hunt, spoke eloquently in support of the principle that it would be unfair for compensators who had acted in good faith and provided the scheme's administrators, the Compensation Recovery Unit, with accurate and appropriate information to have to pay the price if the CRU then made mistakes in the processing of that

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information. Although we were not at that time able to accept the noble Lord's amendments on this matter, I promised him that we would re-examine the issue in the light of his comments. We have kept that promise and, after careful consideration, have been persuaded by his arguments.
This amendment gives effect to our revised view on the matter. It will mean that if the CRU issues a certificate of charges which is subsequently found to be too low because the compensator gave; it incorrect or insufficient information, the CRU will be able to issue a fresh certificate for the correct higher amount. If, however, the compensator gave the correct information but the CRU made a mistake while processing it, no fresh certificate can be issued. I commend this amendment to the House. I beg to move.
Lord Hunt of Wirral: My Lords, again, I am very grateful to the Minister for tabling this amendment, which produces a much fairer situation. In thanking
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him, may I, through him, also thank his officials who not only were very impressive but showed a remarkable understanding of some very complicated and technical aspects? I commend them for that. I think we do not praise often enough the hard work of officials behind the scenes in seeking to cope with highly technical and rather legal points. We are greatly reassured by the speed with which they were able to handle this matter. Hence this amendment, which I warmly welcome.
On Question, amendment agreed to.
Baroness Andrews: My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.
House adjourned at a quarter past ten o'clock.