HL Deb 10 November 2003 vol 654 cc1091-164

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 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 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)—

  1. (a) any report or recommendation in respect of either of the applicants made by the Commission for Healthcare Audit and Inspection,
  2. (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—

  1. (a) any Patients' Forum for an applicant,
  2. (b) the staff employed by the applicants,
  3. (c) individuals who live in any area specified in the proposed constitution as the area for a public constituency,
  4. (d) any local authority that would be authorised by the proposed constitution to appoint a member of the board of governors,
  5. (e) if the proposed constitution provides for a patients' constituency, individuals who would be able apply to become members of that constituency,
  6. (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 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 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 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 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 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 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
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.
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.
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.
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 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 had given notice of his intention to move Amendment No. 248: Page 13, line 32, at end insert—

( ) After section 18 there is inserted—


  1. (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. (2) The board may pass a resolution to dissolve the Patients' Forum with effect from a specified date.
  3. (3) The date so specified must be not less than three months after the date on which the resolution is passed.
  4. (4) The resolution must be passed at a general meeting by not less than three quarters of the members of the board.
  5. (5) Before passing a resolution, the board must consult the members of the trust and its Patients' Forum.
  6. (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 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 moved Amendment No. 249: Page 13, line 32, at end insert—

( ) In section 19 (supplementary), in subsection (2)—

  1. (a) in paragraph (k), after "an NHS trust, " there is inserted "an NHS foundation trust, ",
  2. (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 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 moved Amendment No. 256: After Clause 34, insert the following new clause—


(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—

  1. (a) nomination of candidates and obligations to declare their interests,
  2. (b) systems and methods of voting, and the allocation of places on the board of governors, at contested elections,
  3. (c) filling of vacancies,
  4. (d) supervision of elections,
  5. (e) election expenses and publicity,
  6. 1100
  7. (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 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 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 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 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 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 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 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 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 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.

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 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 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
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.
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.
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.
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 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 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 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 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 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 moved Amendment No. 284:

After Clause 44, insert the following new clause—


  1. (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. (2) The CHAI must keep the standards under review and shall publish amended standards whenever it considers it appropriate.
  3. (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. (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". 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 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.

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 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 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 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 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 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. 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 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.

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 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 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 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 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 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 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 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.

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 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 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 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 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 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 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 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 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 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.

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.

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 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 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 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.

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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 moved Amendment No. 318:

After Clause 60, insert the following new clause—


  1. (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. (2) In particular, for the purposes of subsection (1)—
    1. (a) the CHAI must keep the regulator informed about the provision of health care by and for NHS foundation trusts;
    2. (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 moved Amendment No. 319:

After Clause 63, insert the following new clause—


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 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 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 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 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 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 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.