Health and Social Care (Community Health and Standards) Bill

HL Deb 16 October 2003 vol 653 cc1102-66

3.29 p.m.

House again in Committee.

Clause 40 [The Commission for Healthcare Audit and Inspection]:

Earl Howe moved Amendment No. 209:

Page 15, line 33, after "the" insert "Independent"

The noble Earl said: In moving Amendment No. 209, I shall speak also to rather a lot of other amendments. I do not know whether it would be for the convenience of the Committee if I read them out, but I shall take them as read: they are the amendments listed in the group.

We move with, I suspect, something of a sense of relief to Part 2 of the Bill and the issues relating to the creation of the new Commission for Healthcare Audit and Inspection and the Commission for Social Care Inspection. I begin by once again making clear that, in broad terms, we welcome what the Government are doing by creating those bodies. Indeed, we have long advocated that the acute sector of the NHS and acute private hospitals should be subject to the same inspection and monitoring regime and the same set of quality standards. Bringing together the existing Commission for Health Improvement and the relevant functions of the National Care Standards Commission is a decided step forward. But those new organisations need to be set up correctly.

One of the main themes of our debate during this part of the Committee's proceedings will be the need to ensure that both CHAI and CSCI are truly independent in their operation—independent, that is, from Ministers, government and Whitehall. The amendments to add the word "independent" to the names of the two bodies are symbolic of that theme, but they are also intended as signposts to wider and deeper issues. The independence of CHAI and CSCI must be a cardinal feature of how each body performs its functions. In particular, I shall be arguing that each should be the guardian of the standards that it promulgates.

If both bodies are to command public confidence, they should not be seen as mere tools of government. Regrettably, that is how CHI, for all its splendid people, is sometimes perceived. The star rating system is one example of that. It was introduced by the Government as a means to rank NHS trusts against each other. The system has been discredited, but it is CHI that must implement it at the Government's behest.

It will occasionally be necessary for CHAI and CSCI to speak out and be critical of government. The precedent of the Audit Commission, part of the functions of which are being absorbed into CHAI, is valuable. I am well aware that being criticised is uncomfortable for Ministers, but it is healthy and we should not fight shy of it. That measure of independent action on CHAI's part requires it to be independent on several levels: operationally, financially and in the manner of its executive appointments. We have tabled amendments to address all three of those levels. Earlier this year, there were distinct signs that Ministers wanted to water down previous guarantees of CHAI's independence. I state in the clearest terms that any such watering down is unacceptable.

Turning briefly to other amendments in the group, under Schedule 6 there are various provisions for the Secretary of State to involve himself with the people who will be running CHAI. He appoints and removes the chairman and members under Paragraphs 3(1) and 3(2); he can make regulations about the appointments and removals from office under Paragraph 3(5); and he can set pay, pensions and compensation for loss of office under Paragraph 4. There are similar provisions relating to CSCI in Schedule 7.

Several of my amendments in the group would replace the Secretary of State with the NHS Appointments Commission for CHAI; others would do the same for CSCI. They refer to the special health authority designated to perform the appointment functions for the regulator, CHAI and CSCI under the new clause relating to the regulator that we debated during our first day in Committee. That is probably the NHS Appointments Commission, but a special purpose health authority could be set up. The important point is that the appointer is not the Secretary of State.

It may appear unusual for pay and pensions to be settled by the appointments commission. Again, it would be possible to set up a more independent mechanism. The important point is that real distance should be placed between the Secretary of State and the chairman and members of CHAI and CSCI. That is the purpose of the amendments. I beg to move.

Baroness Barker

I shall speak to Amendment No. 211 and the following amendments in the group. I echo what the noble Earl, Lord Howe, said. The Committee will recall that early last year, when the then Secretary of State, Alan Milburn, talked about setting up CHAI and CSCI, he undertook that they would be no less independent than the Audit Commission. Reading this part of the Bill, one must question that, and do so in some detail. Hence the number of amendments to this part tabled in my name and that of my noble friend Lord Clement-Jones, who I believe told Members of the Committee that he is unable to be in his place this afternoon.

The noble Earl is right to home in on the detail of the composition and operation of the regulatory bodies. As it stands, the Secretary of State retains to himself the power to hire and fire those who will have the most key roles of oversight of the work of foundation trusts and private hospitals. That is unacceptable, so we seek to remove some of those powers from the Secretary of State and, under later provisions, place them within the body of CHAI.

To reflect on some of our earlier debates, the reason we feel so strongly that those bodies must have real distance and independence from the Secretary of State is because of the doubts that have been expressed about the governance, accountability and arrangements of foundation trusts. Within that unsure framework, there needs to be a truly robust and independent body with strategic responsibility to consider critically and in an unfettered manner the performance of those hospitals. Therefore, and with some force, on one of only a few occasions under the Bill, we have common cause with the noble Earl, Lord Howe.

I hope that the Minister will understand that the measures are placed within the whole context of the operation of health and social care in future. They do not simply reflect our distaste for any particular incumbent at the Department of Health.

Baroness Finlay of Llandaff

I, too, support this group of amendments and have added my name to one of them. The arguments for the independence of the inspectorates have been well stated and I shall not repeat them. However, it has struck me that they will have two crucial roles. One will be to inspect, report, identify problems and where things are going well and to provide appropriate feedback. The other, linked but separate, will be to drive up standards in those areas where they identify a deficit for whatever reason—I stress those words. There may be complex reasons. We have had some inquiries that we all wish had never been needed, but behind the problems were complex faults detected in the system. It will be only through rigorous independence that the inspectorate bodies will be able to ask the questions that really need to be asked, to identify the deficits in standards and be able to drive up standards of care.

From all we have heard so far, all the Government's improvements to date have been to drive up standards. I cannot see what there is to fear from independence, but there is much to be feared in an accusation that an inspectorate body is somehow in the control, pay or influence of the political arena.

Lord Hunt of Kings Heath

I declare an interest as a member of the advisory board of the new CHAI, which has begun to meet over the past few months. I understand the points raised by Members of the Committee about the need for the two bodies to be independent and to be seen as such. They are absolutely right. Their role and responsibility for checking quality is awesome. The impact of their reviews can lead to major changes, such as the loss of jobs of senior executives and non-executives. Their relationship to performance ratings is critical. In addition, they are in a position to make more general judgments about the success or not of policies being developed in the health and social care area.

I disagree with Members of the Committee in so far as my experience of the existing CHI is that it is robustly independent. I was the Minister responsible for dealing with CHI for three years. I found it all too independent and robust. At times, I have criticised the approach taken by CHI and the review teams. That is absolutely right, as it was a visible indication of the very independence of Peter Homa, Deirdre Hine and the other commissioners. This is not a theoretical discussion. We can consider at least three years' experience of an organisation. Nobody has brought evidence to your Lordships' House to suggest that CHI has been anything other than robustly independent. Anybody who knows the character of Ian Kennedy, the chair designate of the new CHAI, or Denise Platt, the chair designate of CSCI, could doubt their robustness and independence. I have no doubt that we will see from them extraordinarily good work that is wholly independent.

I must take the noble Earl to task on his comment on performance ratings, which he said were now discredited. They are not discredited. They may not be perfect, and nobody would claim that, in their first year or two, they were 100 per cent perfect. But they give a very credible measurement of the overall performance of individual NHS trusts. I doubt that any Members of the Committee would detract from the strengths and abilities of any of the trusts going forward to foundation trust status. They are some of our best organisations. Their star-ratings contain both key targets and a huge number of benchmark indicators. Of course they need to be refined; that will happen. It would be wrong to suggest that the credibility of the star-ratings has been undermined in any sense in the way that the noble Earl has suggested.

No doubt my noble friend will have something to say on the third issue raised, the appointment of the chair and commissioners. I put it to the noble Earl that, if the Government were concerned to put into those positions people who would simply do what they were told, would they really have appointed Sir Ian Kennedy or Denise Platt?

Baroness Finlay of Llandaff

The noble Lord, Lord Hunt, has given powerful arguments for independence and stated rightly that the people appointed are of independent mind and spirit. I am not sure, therefore, why he is fearful of adding the word "independent" into the Bill. When those people leave office, we need to ensure that that tradition is maintained.

Lord Hunt of Kings Heath

It is because I have always listened to noble Lords explain on many occasions in your Lordships' House that we should not seek to add unnecessary words to Bills or to lengthen them unnecessarily. It would be extraordinary to suggest to the appointees that adding the word "independent" to their title will somehow change the nature and philosophy under which they operate. We should think better of them.

3.45 p.m.

Baroness Howarth of Breckland

I am not sure whether I support the amendment. I wish to explain why, and to build in a few questions. I do not know what is meant by the term "independence" in relation to the two bodies. I declare an interest as the vice-chair of the National Care Standards Commission. However, what I have to say is entirely my own. I do not seek to join the new commission, so I feel very free in making my own comments.

Independence seems to mean different things in different places. Unless we have that more clearly specified—some of the amendments may propose to take that through—we might run into difficulties. For example, non-departmental public bodies, non-ministerial departments and even economic regulators are subject to financial control. But the way in which that budget is set, how representations are received in the public spending reviews and whether the Minister will make sudden cuts in assigned budgets—that has happened to some independent regulators—will affect how that independent regulator can carry out its task.

That accountability may well have a political perspective. The noble Lord, Lord Hunt, mentioned in an earlier debate that some issues will always have political outcomes—it is in the nature of the beast. I give standards for registration in old people's homes as an example. Independent regulatory agencies are given powers over regulation but are also subject to controls by elected politicians through those standards. How those standards can be interpreted and what freedom they have will also affect the nature of independence. Indeed, standards as a whole may be handed down from the Department of the Health to the regulator for implementation, with little room for flexibility, where the regulator might see better ways of, say, acting proportionately in achieving an aim.

The nature of the relationship between the regulator and the relevant department is usually set out in a management statement that includes how the regulator will receive rules and guidelines relevant to the exercise of the regulator's functions, including how the regulator is to be held to account for its performance. We must remember that the regulator, however powerful the personality, must be held to account.

Will the Minister say whether that will be the mechanism for the agreement between new CHAI and CSCI and the departments, and whether it will give detailed instruction or broad direction for the new regulators?

This week saw the launch of the new report by the Better Regulation Task Force on independent regulators. I commend it to all Members of the Committee. The question of complexity, and sometimes duplicity, contained in the word "independent" emerged throughout the discussion. Do the Government have a clear definition of independence? That would help me to know where I stand in this debate.

Lord Warner

I share the noble Earl's pleasure at moving to Part 2 of the Bill. It is appropriate that we should celebrate with such a bumper group of amendments to discuss. Phonetically, the amendments would mean that CHAI would become "itchy" in shorthand. I wonder whether Sir Ian Kennedy and his colleagues would thank us if we agreed to such amendments. In particular, as I shall suggest, they would add nothing in legislative terms. A name does not guarantee independence. The Bill ensures that both CHAI and CSCI will be more independent of government than the bodies from which they are formed; namely, the Audit Commission, CHAI and the National Care Standards Commission. The acid test of CHAI and CSCI's independence will be how independently they behave in the discharge of their functions and how they report to Parliament.

On Amendments Nos. 211 and 235, we have made it clear that we are committed to ensuring the independence of CHAI and CSCI. I am grateful to my noble friend Lord Hunt for his excellent statements in support of our position, which, I think, accurately describe what we are about. However, the Secretary of State must continue to be accountable to Parliament for the work of both inspectorates. In keeping with that principle, the Bill must provide for the Secretary of State to have limited—and I emphasise limited— checks and balances on how both organisations perform their functions.

The Bill currently contains powers in Clauses 51 and 78 to require CHAI and CSCI to carry out an inspection of any particular body or service. The Bill gives the two inspectorates a high level of discretion about how they exercise their functions, so the Secretary of State will not be able to influence how they exercise them day to day. However, the Secretary of State remains responsible for the health and social care services that they are inspecting and might need to ask them to carry out a review of a particular authority or service if concerns are raised. For example, such a power would be used when there were considerable concerns about a local authority's child protection services, such as those raised by the case of Victoria Climbié. It is therefore important for the Secretary of State to be able to exercise this function in a speedy manner when the need arises.

CHAI and CSCI will be markedly more independent than other inspectorates with a like remit. In particular, most other NDPBs, such as the Audit Commission, can be directed by Ministers about any matter. The Bill does not include such a power for CHAI or CSCI and instead gives both inspectorates a very wide discretion on how they exercise their functions, allowing the Secretary of State to direct the inspectorates only in certain limited circumstances. For example, it would be unprecedented for legislation setting up an NDPB not to include direction-making powers that the Secretary of State could use if the organisation were seen to be failing to exercise its functions properly—hence the specific rather than general provision in Clauses 130 and 131.

It is important that the Secretary of State can give a general direction on matters of government policy to which the inspectorates must have regard—a requirement to comply with proper procedures of good government accounting, for example—hence, again, the specific provision in Clauses 128 and 129. The same power to make directions to have regard to government policy applies to Ofsted, and I doubt whether noble Lords would regard Ofsted as a body that lacks independence.

Finally, it is important that the Secretary of State can ensure that the criteria and standards which the inspectorates will use to review NHS and local authorities are fair to the bodies being inspected and reflect national standards, to which we will come at a later stage. Hence the specific requirements for the Secretary of State's consent to the inspectorate's criteria in Clauses 49, 59, 77 and 83.

The Bill includes other provisions that will emphasise the independence of the bodies, including provisions to: enable the Secretary of State, or the National Assembly in Wales, to delegate the function of appointing the chair and other commission members of both inspectorates to the NHS Appointments Commission working to Nolan Principles; give the chair and commissioners considerable security of tenure so that they may be removed only when they are deemed unfit or unable to perform their functions; and to provide for the appointment of CHAI and CSCI chief executives by the commission members themselves. I recall that, in the case of the Audit Commission, there must be government approval of the chief executive. There are therefore real differences between the new bodies and some existing bodies that are accepted on all sides of the House to be perfectly independent.

Other provisions require both commissions to make an annual report direct to Parliament, or the National Assembly for CHAI, on the state of health and social care in England, or Wales in the case of CHAI. The only direction and regulation-making powers in the Bill are those that we believe to be absolutely essential, for the reasons I have given. Noble Lords will have the opportunity to scrutinise any regulations when they are laid before Parliament.

Members of the Committee have expressed concern about the regulation-making powers that will allow the Secretary of State to approve the criteria that CHAI and CSCI draw up. It is important to be clear that the commissions themselves will be fully responsible for drawing up the inspection criteria. However, it must be right that the Secretary of State, who retains parliamentary responsibility for the work of the commissions and for drawing up national standards, ensures that the criteria and standards themselves fit together. We do not want to create a situation for the NHS in which the standards and criteria do not fit. That would cause a great deal of difficulty for people throughout the country who are being inspected against criteria that measure performance against national standards.

We would not wish to place a specific duty on CHAI to have to consider requests to undertake reviews and inspections at the behest of all and sundry, which is effectively what Amendment No. 292 would require. We would want CHAI to concentrate on its core job. Within that, it is appropriate for the Secretary of State to be able to request CHAI to undertake additional reviews or investigations when there are serious concerns.

Turning to the issue of appointments, I remind Members of the Committee that Clause 183 enables the Secretary of State to delegate responsibility to the NHS Appointments Commission for all or part of his function of appointing members to public bodies that have functions relating to health and social care or the regulation of professions associated with health or social care—including CHAI and CSCI. In addition, Clause 183 and Schedule 12 also permit the appointment of lay members of health profession regulatory bodies. In that context, as we have already said, there are good reasons for deciding that public appointments are not automatically delegated.

Some of the differences expressed by Members of the Committee have arisen because we have not given an undertaking to delegate everything. We have created a capacity to do that, but we are reserving appointments or certain aspects of appointments in particular cases to the Secretary of State. The Government believe that that is sensible.

In some cases, Ministers may wish to delegate the initial selection and sifting processes but not the final appointment itself, or Ministers may wish to retain direct responsibility for certain appointments, or take back responsibility for appointments. We have tried to create some flexibility to take account of all sets of circumstances. However, I repeat what I have said on previous occasions. The Government envisage that the overwhelming majority of national appointments for which the department is responsible will be delegated to the NHS Appointments Commission, with only a small proportion of appointments being made directly by the Secretary of State.

Examination of what the Government have been doing shows that they have moved in this direction far more than previous governments were willing to do. If noble Lords need to judge us in terms of our future behaviour, our past behaviour should be examined, and that has been to give away a great deal more of the appointment functions in the health service than previous governments have been prepared to do. The position regarding CHAI and CSCI has already been made quite clear. The Government are committed to delegating all stages of the appointments processes for both bodies to the NHS Appointments Commission for both chairs and non-executive members. Ministers will not be involved, other than—this is important—in setting the criteria against which candidates are judged.

Some of the amendments would confer inappropriate functions and powers on the NHS Appointments Commission, rather than on the Secretary of State. In particular, Amendment No. 243 would require the Secretary of State to obtain the consent of the appointments commission before making any regulations for the appointment of the chairman and other members. It would be inappropriate for the Secretary to State to have to ask the appointments commission whether he could make any regulations.

The function of the appointments commission is to make appointments to CHAI, CSCI and others and to remove persons from office in specified circumstances. It is not a function of the commission to become directly involved in the making of detailed regulations about the conditions of appointment. We should not seek to burden a body that is intended to carry out recruitment and appointment in that way. Amendment No. 242 would allow the commission to make the regulations. That is neither legally possible nor appropriate.

Amendments Nos. 220,244 and 245 would place the decision about whether an individual should be suspended from office in the hands of the appointments commission, rather than the Secretary of State. It is consistent in a wide range of bodies that that function is in the hands of the Secretary of State. It is he, not the NHS Appointments Commission, who will be responsible for CHAI and CSCI and will, therefore, be held accountable to Parliament for their actions, if there is a problem. In special circumstances, it may be necessary to act quickly. We have discussed those issues before.

Amendment No. 468 seeks to make it clear in the Bill that appointments to CHAI and CSCI can be delegated. That is not necessary, for the reasons that I gave.

Amendments Nos. 223 to 230, 249, 251 and 252 would have the effect that the appointments commission, not the Secretary of State, would be responsible for determining the remuneration, other allowances and pension to be paid to the chairman and other members of CHAI and CSCI and any compensation payable, if there were special circumstances that made it right for a person for hold office. The noble Earl made much of the importance of those functions. It is proper that the functions should belong to the Secretary of State, as he sets the overall budget for CSCI and CHAI and, in consultation with the inspectorate, can ensure that the remuneration paid to the chair and other members is appropriate and proportionate. What is being asked for is simply not normal practice for such bodies.

I should have responded to the noble Baroness, Lady Howarth of Breckland. I do not think that, at this stage, we want to bring the Secretary of State into protocols on joint working. The convention with inspectorates of all kinds is that Ministers do not engage themselves in the joint working arrangements between bodies. That is best left to the good sense of the bodies themselves, in which we have great confidence, to organise joint working protocols.

4 p.m.

Earl Howe

I am not sure that the Minister has quite answered the question asked by the noble Baroness, Lady Howarth of Breckland, about the definition of "independence". In my book, it simply means "free from political interference"; that is what I think of as independence.

Nothing in my remarks was intended to impugn Sir Ian Kennedy or anyone else. That was not the point. My point was that the Bill was formulated in such a way that, when it suited the Government—this Government or any other—CHAI would be allowed to get on with its job and, when it did not suit the Government, the Bill allowed Ministers considerable scope to interfere. The powers are widely drawn.

Individual appointments—current or future—are not the issue. The Bill sets out legally binding ties to government. The Minister went through several of them. I see no virtue in anticipating debates on subsequent clauses—for example, Clauses 128 and 130, which relate to CHAI, or Clauses 129 and 131, which relate to CSCI. We will come to those, and they are important. Similarly, we should reserve for a later moment our debates on performance ratings, standards and criteria.

We have suggested that the word "independent" should be added to the names of the bodies. If the word is so superfluous, one must ask why the Government thought it a good idea to have "independent" as an epithet for the regulator. I imagine that the Government's intention was to make a declamatory statement, as it were, about what the post of regulator was all about. I have no problem with that. The Minister said that CHAI and CSCI would be more independent of government than the current bodies are. We will need to test that proposition as our debates proceed. To my mind "more independent of government" is not the same thing as "independent of government".

It has been a useful debate, and I thank all noble Lords who took part. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 210 to 212 not moved.]

Clause 40 agreed to.

Schedule 6 [CHAI: Supplementary]:

[Amendments Nos. 213 to 218 not moved.]

Lord Warner moved Amendment No. 218A:

Page 130, line 38, after "that" insert "one of"

The noble Lord said: The amendments are technical by nature and have been proposed by parliamentary counsel. I will go through them as briefly as possible.

Amendment No. 218A will make it clear that one of the conditions of conduct, as opposed to all of them, may apply before the Assembly can remove the person from office. Amendment No. 222A changes Schedule 6 to make it clear that the Assembly must consult the Secretary of State before carrying out the appointment and removal of the CHAI member whom it appoints to represent the interests of Wales under paragraph 3(1)(b). The Committee will know that we have already made clear our intention that, in practice, the Secretary of State and the Welsh Assembly will delegate the power to a special health authority, namely the NHS Appointments Commission, which will appoint to the positions according to Nolan principles.

The amendments reciprocate the current provision for the Secretary of State to consult the Assembly before appointing other members to or removing them from CHAI, as specified in paragraph 3(7).

Lord Roberts of Conwy

Is the special health authority a joint England and Wales body?

Lord Warner

I believe it is, but I shall check that and confirm it for the noble Lord.

Amendments Nos. 232A and 253A correct a typographical error in sub-paragraph (3) to make it clear that the Assembly may in the prescribed manner remove from office the person appointed by it under sub-paragraph (l)(b) if, and only if, it is satisfied that one—rather than all—of the conditions specified in sub-paragraph (4) applies. The conditions are that the appointee is unable or unfit to carry out the duties of his office, has failed to carry out the duties of his office or has become disqualified from holding office.

Amendments Nos. 253B and 253C amend Schedule 8. The schedule states that property rights and liabilities can be transferred from the Crown to CSCI, for instance in relation to property and other assets currently used by the SSI as part of the Department of Health. It does not make the same provision for CHAI. Amendment No. 253B will mean that the scheme may also transfer property rights and liabilities from the Secretary of State to CHAI, should that prove necessary.

Amendment No. 253C would allow transfer schemes under Schedule 8 to provide for compensation for any other person or body who is adversely affected by any such scheme. Such compensation might be paid, for example, where it was necessary for a contract with a service provider to be terminated early because it was no longer required by the new commission. We do not anticipate there being many instances where compensation would be paid, but it is important to have the provision to cover a situation where the rights of third parties are shown to be adversely affected.

Amendments Nos. 335C and 361A are technical government amendments in nature and were suggested by parliamentary counsel. Under Clauses 67, 73, 89 and 99, regulations may provide for CHAI, the Assembly or CSCI, as appropriate, to require prescribed persons to provide an explanation of any documents or information that the inspectorates obtain in exercising their relevant powers or of any matters which are the subject of the exercise of any functions of the inspectorates.

The Bill currently provides that those regulations may require explanations to be provided at times and places set out in the regulations. That is to ensure that it would be possible to require explanations to be provided in person, as opposed to in writing, which will sometimes be appropriate, particularly where the inspectorates come across conflicting data in the course of exercising their functions. We are using regulations in this matter to ensure that they compliment the intended methodologies, inspection processes and performance assessment regimes of inspectorates and the Assembly. The regulations will be subject to parliamentary scrutiny in the normal way before they come into effect.

Amendments Nos. 384B, 384C and 396A to 396E are technical drafting amendments to correct incorrect references to the Commission for Local Administration. As drafted, the clauses provide for complaints to be referred to the "Commission" for Local Administration, whereas, under Part 3 of the Local Government Act 1974, referrals need to be made to a, local Commissioner who is a member of the Commission". The amendments simply correct that in the text of Clauses 112 and 114.

Amendment No. 408A amends the Superannuation Act 1972 by adding CHAI and CSCI to the list of bodies that can admit members to the Principal Civil Service Pension Scheme. We want to ensure that certain staff who transfer to CHAI and CSCI do not suffer any detrimental effect by having less favourable pension arrangements.

Members of the Principal Civil Service Pension Scheme, such as those individuals who currently work in the Social Services Inspectorate, would be able to remain members of that scheme upon transfer. That will ensure that their terms and conditions of service are protected on transfer of employment to the new commission. Staff members who were previously members of the Audit Commission pension scheme will be able to join the Principal Civil Service Pension Scheme because there is no comparable scheme to their current one.

You will be pleased to know that, finally, Amendment No. 408B corrects an omission from the minor and consequential amendments in Schedule 9. It amends Section 55 of the Care Standards Act to ensure that it now refers to CSCI instead of the National Care Standards Commission and to the Health and Social Care Act instead of the Care Standards Act.

While I am on my feet, perhaps I may correct what I said earlier. The NHS Appointments Commission is not an England and Wales body. I apologise for the slip. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 219 to 222 not moved.]

Lord Warner moved Amendment No. 222A:

Page 131, line 20, at end insert— ( ) The Assembly must consult the Secretary of State before exercising any of its functions under the preceding provisions of this paragraph. On Question, amendment agreed to.

[Amendments Nos. 223 to 231 not moved.]

4.15 p.m.

Baroness Barker moved Amendment No. 231 A:

Page 132, line 17, at end insert— "Responses to recommendations

The CHAI must respond in writing to any recommendation which—

1. (a) is made by a Committee of either House of Parliament, or a Committee of both Houses, and
2. (b) relates to the exercise by CHAI of its functions."

The noble Baroness said: We continue on a related matter, which is about the way in which the independence of the new bodies is to be demonstrated and proven. Amendments Nos. 231 A, 316 and 346 perhaps lead us away from the rather disappointing debate on the preceding group of amendments about individuals, on to the real basis upon which one can fairly determine the independence of the bodies. Amendment No. 231A requires CHAI to respond in writing to a committee of either House of Parliament about its functions and about carrying them out.

Amendment No. 316 requires CHAI to provide Parliament and the Assembly with material on the investigations and reviews which it conducts. Amendment No. 346 requires CSCI to provide reports of its investigations to the Comptroller and Auditor-General. I was struck by something said by the noble Lord, Lord Warner, in reply to the noble Earl, Lord Howe, in the previous debate; namely, that the Government do not want these bodies to be required to produce reports for all and sundry because that would distract them from their core jobs.

The core job of these bodies is to provide public information about the standards and quality of health and social care. I suggest to the Minister that the production of reports in writing is a key means by which they could do precisely that. More than that. they would build confidence in standards of health and social care. It would not be an imposition for Parliament or the Assembly to make such a requirement of a public body: indeed, it would be unusual were there not to be a requirement for them to do so. After all, these bodies are not only providing strategic reports on the overall level of service provision and the adequacies of it, but also, from time to time, they are investigating some of the most serious matters in public life as they affect individuals.

Those three small requirements on these bodies are not onerous, but they are important. In particular, Amendment No. 346 proposes copies of reports being sent to the Comptroller and Auditor-General about CSCI are an essential part of the data which not only politicians but also the public need in order to make correct and informed judgments about the most important public services in the country. I beg to move.

Lord Warner

Amendment No. 231A seeks to increase CHAI's accountability to Parliament by requiring it to respond in writing to any recommendation of the committees of the House that relates to the exercise of CHAI's functions. Similarly, Amendment No. 316 would place a general duty on CHAI to keep Parliament and the Assembly informed about the provision of healthcare.

I do not think that any of us disagrees with the principle that the work of CHAI should support Parliament's scrutiny of policy and public services. Clause 126 requires CHAI to produce an annual report about its findings during the year, which is to be provided directly to Parliament. It is already discharging, in writing, that widely drawn responsibility to report on its work.

Elsewhere in the Bill there is also provision for it to produce and make public reports as they undertake specific studies throughout the year. Therefore, it already provides for written reports to be made available to Parliament and to be put in the public arena. There may be occasions when CHAI might fall within the sights of Parliament or the Health Select Committee. It will therefore be expected to provide such information in such a form as may be requested. However, it would not be right for CHAI to be put under a duty to do so as a matter of course.

Ofsted has a direct reporting line to the Education and Skills Select Committee, but that is primarily because Ofsted is a non-ministerial department, unlike CHAI and CSCI, which are non-departmental public bodies. They are constitutionally different. It would be inconsistent with well-established precedent for a duty to be placed on the commissions, as non-departmental public bodies, to keep the Health Select Committee informed of matters relating to health and social care services. Of course they will co-operate in the normal way, as would any other body, with parliamentary Select Committees, but I suggest that the amendment would undermine the important principle that the Secretary of State is the person accountable to Parliament for the actions of these commissions.

Amendment No. 346 has the effect that CSCI, where it conducts general reviews of local authorities or other persons providing English local authority social services under Clause 78, must always send a copy of such a report to the Comptroller and Auditor-General. I do not believe that this amendment is necessary. Clause 78 concerns the general function of review and investigation of social services that CSCI will have. There is no need for the NAO automatically to receive a copy of all reports following such a review or investigation under this clause.

Of course, when exercising its audit function, the NAO can already request from CSCI any information and reports it deems necessary. In our view, there is sufficient provision for this in the legislation.

Baroness Barker

I thank the Minister for that response. It was helpful to tease out from him the strength and force of some of those other requirements on the two bodies. I would simply say that, particularly in relation to Amendment No. 346, we sought to probe the extent to which the type of reports produced by the Audit Commission would be made available. There is a fair degree of disquiet on these Benches about the extent to which the existing Audit Commission functions will relate to the new bodies. I question whether solely the audit function to which the Minister referred will be sufficient to provide the full strategic information that will be needed.

None the less, the Minister has been helpful in his reply. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Noakes moved Amendment No. 232:

Page 133, line 3, leave out sub-paragraph (5) and insert—

"(5) The CHAI may borrow money other than as mentioned in this paragraph up to a limit of its annual expenditure for the previous year as shown in its annual accounts less any amounts outstanding in respect of loans advanced under this paragraph."

The noble Baroness said: In moving Amendment No. 232 I shall speak also to the amendments grouped with it. We now come to a group of amendments dealing with the financial side of both CHAI and CSCI. The need for financial independence lies at the heart of the amendments and I shall build on the comments made earlier by my noble friend Lord Howe about the importance of independence.

I shall speak to Amendment No. 232 shortly, but it may help noble Lords if I begin with Amendment 317, which would give CHAI a basic financial duty, inserted as a new clause before Clause 61. It is not a revolutionary provision; it simply requires CHAI to break even on its income and expenditure account. No reference is made to CHAI's financial duty in the Bill and I hope the Minister will agree that it is important to be clear about the way that CHAI will operate financially.

The specification of a financial duty is important because Amendment No. 319, which applies to Clause 61, concerns the fees that CHAI may charge. The amendment states that the regulations made on fees by the Secretary of State must ensure that CHAI can meet its financial duty. Amendment No. 320 would achieve the same end in respect of regulations made by the Assembly under Clause 62.

Amendment No. 232 concerns another aspect of financial independence. It would give CHAI the ability to borrow money other than from the Treasury. This would ensure that if CHAI needed to invest in property or information systems and so forth, it would not be frustrated in that by the Treasury's power of veto. Borrowing money commercially should be a route made available to CHAI in order to keep its independence. I imagine that it would not often want to borrow at the higher rates that would almost inevitably pertain in the private sector, but if the Treasury is intransigent—perish the thought—then the option would be available.

Amendments Nos. 253, 357 and 358 are mirror images for CSCI of the amendments I have just spoken to, thus ensuring that it, too, would be financially independent. Charging by CSCI is a particularly sensitive issue for local authorities, which are not currently charged by the Social Services Inspectorate. May I put a direct question to the Minister: what do the Government intend in relation to charging local authorities? Is it intended that local authorities should bear the additional costs by way of CSCI fees? The Local Government Association considers this to be an important issue and I hope that the Minister will be able to respond.

If the Government are unable to accept these amendments, which are crucial to the financial independence of CHAI and CSCI, will the Minister say in what ways the financial independence of those bodies will be secured? We see nothing in the Bill to give us comfort on this. The noble Baroness, Lady Howarth, referred earlier to the damaging impact when cuts in resources can be imposed on bodies suddenly and almost without notice. That is potentially a very real issue.

I turn now to one further amendment in the grouping, Amendment No. 318. This is a probing amendment designed to explore how fees will be set, and in particular seeks to ensure that English NHS bodies bear none of the costs attributable to any functions of CHAI in relation to Welsh bodies. Cross subsidy is rarely attractive but it is particularly unattractive if it means that there are hidden reallocations of resources between the two countries. I beg to move.

Baroness Barker

I rise briefly to speak to Amendment No. 321. It is a small amendment, but none the less relevant. It seeks to give CHAI the power to charge for its reports. Noble Lords who have worked long and hard in this field will know that such reports are always fairly bulky and expensive to produce; a considerable cost can be incurred. It seems only reasonable that CHAI should have the power to make a charge.

4.30 p.m.

Lord Warner

I shall speak first to the non-government amendments in this grouping. As the noble Baroness, Lady Noakes, has explained, Amendments Nos. 232 and 253 seek to allow CHAI and CSCI to borrow money from the private sector. I assume that underpinning this proposal is the argument that such a power would reduce the dependence of CHAI and CSCI on government funding, thereby guaranteeing the commissions greater freedom of action. However, I should remind the Committee that allowing CHAI and CSCI to borrow from the private sector would go against Cabinet Office and Treasury rules for borrowing by non-departmental public bodies as well as precedent. Neither the Audit Commission nor Ofsted may borrow from the private sector, and no one suggests that those bodies are not independent.

I hope that the amendments will be rejected, and to that end I shall set out further arguments. First, any money obtained through loans from the private sector is likely to be charged at higher rates than money borrowed from government. Thus there exists a very strong "value for money" justification for not allowing CHAI or CSCI to borrow from sources outside of government.

Secondly, public bodies such as CHAI and CSCI will be providing a valuable public service and therefore cannot be allowed to run the risk of amassing excessive debts through private sector borrowing. Indeed, I felt a little queasy when the noble Baroness mentioned some of the things that the bodies might do. Such borrowing could present a real danger to the effective performance of their key functions. Equally, to allow bodies that are neither democratically elected nor responsible to shareholders to borrow from the private sector would be irresponsible, given that it would not be possible to hold them to account for their actions. Through allowing them to borrow only from government, as the Bill currently provides and in accordance with normal precedent for bodies of this kind, the risk of excessive debt is effectively nullified.

The Government are committed to the commissions having access to the resources necessary for them to carry out their important functions. We are introducing new clauses which place duties on both commissions to manage their respective financial affairs so that their expenditure is covered by their income.

The amendment is neither necessary nor desirable, for several reasons. Both commissions are already placed under a duty to carry out their functions effectively, efficiently and economically under paragraph 2 of Schedules 6 and 7 respectively. Furthermore, both commissions must ensure that they manage their budgets effectively under paragraph 10(3) of these schedules. In doing so, they must send annual accounts to the Comptroller and Auditor General, who in turn must certify them and lay copies of his reports before Parliament.

Under Clauses 61, 62 and 84, the Secretary of State or the Assembly, as appropriate, may prescribe those functions for which CHAI and CSCI may charge fees. It may not be appropriate to allow them to charge fees for all their functions. For example, where they undertake a comparative study of a number of bodies in order to enable them to draw general conclusions as to the state of the health service or social services, it will probably not be appropriate to charge the bodies involved. We anticipate that it will be necessary for the bodies to retain an element of state funding for such studies.

Amendments Nos. 319, 320 and 358 seek to ensure that any such regulations made by the Secretary of State and also, in the case of CHAI, the Assembly, do not hamper either commission's ability to manage cost recovery to the extent that they would fail to meet their financial duties as set out under the proposed amendments.

Amendment No. 318 seeks to ensure that CHAI and CSCI do not charge fees which exceed the cost of the activity they are undertaking. While I am sympathetic to the amendment, I do not believe that it is necessary as, clearly, this is something that we would expect CHAI and CSCI to do as a matter of course. It has always been our expectation that any fees levied should be to cover operating costs rather than with a view to making a profit. It is not in CHAI's interest to overcharge healthcare providers.

Currently Clause 61(6) provides a power that will enable the Secretary of State to make regulations that would allow an independent person or panel to review an individual charge that CHAI has set. Where such a person or panel feels that CHAI has wrongly applied its own fee scales in a particular case and, as a result, has charged too much for a particular review or investigation, they will be able to substitute a lesser fee. Clearly the independent person or panel will be very unlikely to substitute a lower fee if the amount charged by CHAI or CSCI was not sufficient to meet its costs. So the amendments are not necessary.

Were CHAI or CSCI to set outlandish or unreasonable fee levels, it would be incumbent on the Government, like others, to make known their view that the fees set were not reasonable. If the bodies refused to set fees appropriately, the Government would have to take a view as to whether or not the chair of CHAI or CSCI was fit to carry out the duties of his office. Ultimately—this is something of a nuclear option—such behaviour could lead to the removal of the chair from office, although it would be very strange if such behaviour developed among incumbents of those offices.

The position is different for providers regulated under the Care Standards Act. At subsections (2) to (5) of the proposed new Section 113A in Clause 103(2), the Secretary of State has retained powers to set fees under Part 2 of the Act, if necessary.

Amendment No. 321 would entitle any person who requests a copy of any material relevant to a review or investigation under Clauses 45 to 47, or a study under Clause 53, to have one on payment of such reasonable fee, if any, that CHAI considers appropriate. I should draw the Committee's attention to the fact that CHAI is not given review or investigation functions under Clauses 45 to 47 of the Bill.

The noble Baroness, Lady Noakes, drew attention to the issue of local authority and CSCI fees. The SSI is currently funded by a top slice of the local authority social services settlement. This money will be returned to local authorities when CSCI commences charging local authorities. We do not anticipate significant increased costs to local authorities.

I now turn to the government amendments. Amendment No. 317A, 319A and 357A are technical amendments, recommended by parliamentary counsel, to Clauses 61 and 62, which allow CHAI to charge fees to NHS bodies with respect to the exercise of its review functions in relation to services commissioned by those bodies from practitioners or providers. The Bill currently empowers CHAI to charge fees to individual practitioners or providers with respect to the exercise of CHAI's functions in relation to the services provided by those persons and could be interpreted as not allowing CHAI to charge the commissioning NHS bodies with respect to the exercise of those functions. These amendments therefore enable CHAI to charge the commissioning NHS or Welsh NHS bodies with respect to the exercise of such functions by CHAI. We believe that there may be circumstances where CHAI may wish to charge the practitioner or provider—for example, where CHAI has investigated some problem with the practitioner's or provider's practice—and we retain that option in the respective clauses.

Under Clause 84, fees are most appropriately charged to the local authority as the work that CSCI will be undertaking is in respect of all social services provided by a local authority, including those commissioned from other providers. However, parliamentary counsel has advised that, as in the case of Clause 61, there could be doubt as to whether Clause 84 allows CSCI to charge fees to the local authority with respect to the exercise of its functions in relation to services commissioned by the local authority from other persons.

Amendment No. 357A therefore clarifies that when CSCI is carrying out a review of the social services provision of a local authority it may be able to charge that authority for work that it undertakes in respect of services that a local authority can commission or provide by arrangements with other bodies and not just for the services provided by the authority itself.

Baroness Noakes

I thank the Minister for that comprehensive reply. I shall have to wait until I read it in Hansard to absorb it fully. For example, I am not clear whether or not he answered my question in respect of basic financial duties. That may be because of my lack of comprehension rather than the lack of an answer, but time will sort it out.

I thank the Minister for the clarification in regard to the charging of local authorities. The Local Government Association will be very interested in that. I shall ensure that it is made aware of it because one of its considerable concerns is that local government will end up bearing additional costs through this route. I suspect that that is what it will involve.

The issue of financial independence was at the heart of the amendments, and the Minister did not give an answer on that. He answered that the Government wanted various powers to control CHAI and CSCI, and that that is the way in which the Bill has been drafted. It is directly contrary to the direction of travel in the amendments.

The Minister referred to borrowing being against Treasury rules because excessive debts could be run up. But one minute we are told that we can trust CHAI and CSCI because they are responsible bodies, with excellent chairs and members, and that all the Government need are reserve powers—to get rid of a recalcitrant chairman, for example—and the next minute the Minister argues that they have to have the most detailed powers to prevent those bodies stepping an inch out of line. His answer did not carry any real credibility.

The Minister often refers to the Audit Commission and Ofsted. The Audit Commission is quite different. It has extensive fee-raising powers, which is what drives its income and expenditure account. It is not constrained in the same way as CHAI and CSCI will be.

There are a lot of loose ends in this area. Financial independence is a key element of the independence we seek to establish for CHAI and CSCI. I shall read carefully the Minister's comprehensive response—for which I thank him—and in the mean time I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Warner moved Amendment No. 232A:

Page 133, line 25, leave out "provided" and insert "proved"

On Question, amendment agreed to.

Schedule 6, as amended, agreed to.

Clause 41 [The Commission for Social Care Inspection]:

[Amendments Nos. 233 to 236 not moved]

Clause 41 agreed to.

Schedule 7 [CSCI: Supplementary]:

[Amendments Nos. 237 to 253 not moved.]

Lord Warner moved Amendment No. 253A:

Page 136. line 21. leave out "provided" and insert "proved"

On Question, amendment agreed to.

Schedule 7, as amended, agreed to.

Clause 42 agreed to.

Schedule 8 [CHAI and CSCI: transfers of property and staff, etc]:>

Lord Warner moved Amendments Nos. 253 B and 253C:

Page 136, line 32, after "to" insert "the CHAI or"

Page 137, line 2, at end insert —

"( ) A scheme under this paragraph may contain provision for the payment of compensation by the Secretary of State to any person or body (other than one mentioned in sub-paragraph (1)) whose interests are adversely affected by the scheme."

On Question, amendments agreed to.

Schedule 8, as amended, agreed to.

Clause 43 agreed to.

Clause 44 [Quality in health care]:

Baroness Barker moved Amendment No. 253D:

Page 16, line 16, at end insert—

"( ) It is the duty of each NHS body to put and keep in place arrangements for the purpose of monitoring the uptake of the following NICE approved technologies—

1. (1) pharmaceutical technologies, and
2. (2) medical devices."

The noble Baroness said: Clause 44 is, perhaps, the heart of the Bill in that it deals with quality of healthcare. It is a rather short clause, and my amendments would make up for the deficit in the description of what constitutes quality of healthcare.

Members of the Committee who have read the debates on the subject in another place will have picked up on the widespread concern that what passes for quality in healthcare is often measured in terms of management performance. That is particularly of concern under the framework of foundation hospitals.

The amendments would do two things. They would ensure that NICE guidance will be adhered to and that the task of monitoring it will be assumed by CHAI. Given the statement made by the noble Lord, Lord Warner, at Second Reading, in response to the noble Baroness, Lady Finlay, I am sure that he will be delighted to see that. The amendments also make it explicit in the Bill that national service frameworks, milestones and guidance are also to be the subject of scrutiny by CHAI and CSCI.

The difficulty is that, having taken what is regarded on all sides as a huge leap forward in bringing together the best evidence, best research and best practice in national service frameworks, the Government have fallen short of ensuring that, in some cases, their implementation is backed by resources and in gathering and monitoring the data which come from that implementation.

The amendments seek to make sure that the single most important source of information that will enable judgments to be made about quality in healthcare is a primary function of the new body. It is extremely important that information on the uptake of new technologies, new drug therapies and new clinical practices are gathered together, made available and fed back into the future planning of healthcare. For all that the independence of foundation trusts is to be welcomed, there is a genuine fear that there will be a dissipation of the gathering of data that will inform the development of future quality healthcare and, in particular, the innovation and effectiveness of new treatments.

It is perhaps a truism, but in some disciplines of healthcare novelty in itself is often taken to be a quality standard. If one were to go back to look at the provision of some treatments—statins, for example— perhaps novelty in itself is not a quality standard. Some very old treatments which have been around for a very long time are far more effective.

The coherence which these amendments would bring to the gathering of quality data by CHAI and CSCI is to be welcomed. I believe that there is a case for making this responsibility explicit on the face of the Bill. I beg to move.

Earl Howe

I am in complete sympathy with what the noble Baroness has said. I should like to speak to Amendment No. 274 in my name, which aims at very much the same goals as those of the noble Baroness.

There is considerable concern, as I am sure the Minister is aware, about the patchy implementation of NICE guidance around the country. NICE guidance is meant to be binding on PCTs and trusts, but there is considerable evidence to show that it is being quietly ignored where budgetary constraints get in the way. The review being conducted by Professor Trevor Sheldon will no doubt prove illuminating. But meanwhile, there is a strong case for ensuring that a systematic and transparent process is put in place to ensure that NICE-approved medicines and technologies are accessible to all who need them. CHAI is the body most obviously suited to this task.

Only last week we saw reported in the press the research by Glasgow Royal Infirmary showing that NICE guidance on statin prescribing is being widely ignored. Another example is atypical antipsychotic drugs; the Zito Trust has highlighted considerable variations in prescribing around the country. In some areas, atypical antipsychotics account for 70 per cent of all antipsychotics prescribed; in others, only 20 per cent. This is a concern in many areas. I understand the normal rule is for PCTs to implement guidance within three months. That is certainly not happening in many instances.

I have consciously mentioned medical technologies as distinct from medicines. Medical technologies, such as pacemakers, stents and implantable defibrillators are implanted into patients in specialist centres, and not all are subject to national registries or have audit databases associated with them. As a result, unlike prescription drugs, reliable data on the uptake of medical devices are not available, and it is unclear whether government and NICE targets are actually being met. There is anecdotal evidence that they are not, particularly in relation to some cardiac and orthopaedic treatments. The first step towards enabling CHAI to monitor effectively the uptake of technologies and to highlight regional disparities would be for appropriate data to be collected at PCT and NHS trust level. I very much hope that this will happen.

Hazel Blears, the former health Minister, was quite clear on the matter when she spoke in another place on 10th April. She said that it was the Government's view, that the Commission for Health Audit and Inspection should be the principle external inspector of the implementation of NICE guidance… I expect that CHAI's work will cover clinical guidelines, as well as the appraisals that are integral to the clinical governance agenda in the organisation".—[Official Report, Commons, 10/4/03; col. 147WH.] Noble Lords will note that I specifically mentioned in my amendment not only health technologies but the clinical management of specific conditions.

Hazel Blears' words seem unequivocal, but the Bill at the moment contains only an implicit duty for CHAI to monitor the update of NICE guidance. The duty ought to be statutory and the implementation of NICE guidance ought to be incorporated into CHAI's annual report to Parliament.

Lord Roberts of Conwy

I support my noble friend's amendment and the thrust of the amendment moved by the noble Baroness, Lady Barker. I have received a very good brief from the Medical Technology Group, which points out that medical technology is transforming healthcare by achieving a higher return on resources allocated for improved patient health and health system outcomes. The group gives a variety of examples, saying that diagnostic imaging virtually eliminates exploratory surgery; lasers allow more rapid recovery from eye surgery and other procedures; minimally invasive surgery avoids lengthy hospital stays and long recuperation; and so on. I have no doubt that the group is correct in its assessment.

The group points out that medical technology not only benefits the patients but creates greater efficiency and savings in the health system, greater productivity, faster recovery times, a quicker return to work and lower absenteeism. Advances in technology have made exciting, groundbreaking possibilities a reality, and there are many examples of that.

The use of medical technology and the resulting cost savings to the NHS and improved patient outcomes will enable the Government to achieve many targets as set out in the national service frameworks and Department of Health guidelines. It will also enable NHS bodies to fulfil requirements laid down in technology appraisals published by NICE, and ensure that the statutory requirement that funding follow all NICE decisions is met.

Earl Russell

As an academic, I am used to the problems that arise when a government attempt to assess quality. I am very happy to support my noble friend's amendment, which I believe to be necessary.

I spoke recently with someone who had been in hospital for purposes of gender reassignment, who was very far from convinced that she was getting equal treatment to some of the other patients in the hospital. I remember on another occasion listening to a junior Minister, whom I will not name because, although he did not say so, I take him to have been speaking under Chatham House rules, who was very far from convinced that in the field of mental health patients received equal treatment.

There are big questions here that need addressing. The only trouble with tabling any amendment to any Bill is that it necessarily has to be cast in terms comprehensible to the Bill. That, I am afraid, one cannot get round; but it may be that it is the terms comprehensible to the Bill that we need to consider. All the Government's thinking on quality within the profession rests on two premises. One is that government are capable of recognising quality when they see it. The other is that quality is ultimately quantifiable. It is about time that the Government started wondering whether the two assumptions need double checking.

I remember reading a letter in the Independent from someone who had recently had a heart operation, from which, when he went in, his chances of recovery were approximately 50/50. He was being operated on by Sir Magdi Yacoub, who came to see him the night before, ran through a standard series of medical checks that he had to do, then spent half an hour sitting with him talking about Bach. The patient ascribed his survival to that half hour's conversation about Bach. We shall never know whether it is true or not, but 1 found it plausible. How do we quantify that in any form of performance indicator? Is that what distinguishes a great doctor merely from a very good one? If so, how an earth is the state ever going to recognise it?

Lord Warner

Although I applaud the sentiments behind the amendments and very much welcome many of the contributions made by noble Lords, I hope that I shall be able to provide sufficient reassurances to support our view that the amendments are unnecessary.

We believe that the significance of NICE and the national service frameworks will be adequately reflected by the provisions already in the Bill. I shall briefly refer to the remits and purpose of those two pieces of activity. 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. I should like to give an illustration of the amount of effort being put in. There are currently 48 guidelines and 41 technology proposals in simultaneous preparation, making it the largest programme in any country. It is respected throughout the NHS and, indeed, throughout the international community. The national service frameworks are another element of the overall programme of modernisation.

There is a set of arguments that I want to deploy from those two pieces of activity, which are designed to help us to improve health and social well-being by providing services to more people more quickly and to a higher standard; improving the patient experience, reducing variations in care across the country; and increasing compliance with evidence-based practice.

The processes for doing that are enshrined in the Bill. The Explanatory Notes make it clear that it is envisaged that any statement of standards issued and published by the Secretary of State under Clause 45 of this Bill is likely to be informed by national service frameworks, NICE guidance and other relevant sources.

Having established NICE and national service frameworks, it would be bizarre if the Secretary of State ignored all that work and those activities in setting the national standards that he will have to set and which will be made public later this year. As the Minister responsible for overseeing the work on national standards, I can assure Members of the Committee that the experience of NICE, national service frameworks and others will be reflected in those national standards. We are building up national standards that reflect those particular pieces of work and experience.

Clause 45, which relates to national standards published by the Secretary of State, makes it clear that any NHS body and cross-border strategic health authority is under a duty to take such standards into account in discharging its duty of quality under Clause 44. There are some strong mechanisms for building the work of NICE and the national service frameworks into the national standards.

The Bill then requires CHAI to produce criteria which the Secretary of State will ultimately approve which are compatible with measuring performance against those national standards. In our view those arrangements are strongly enshrined in this piece of legislation.

As I said, CHAI must take account of those standards when it undertakes its reviews. I remind the Committee that NHS bodies are also under an obligation to provide funding for treatments and drugs recommended by NICE within three months of guidance being issued. Of course, we know that there are some problems in some parts of the country with meeting that obligation but the obligation is clear and statutory. CHAI will therefore take account of statutory obligations on NHS bodies when carrying out its reviews. I suggest that we have a well-established set of arrangements which enshrine NICE and national service framework work in the standards that will be set under this legislation. The criteria that CHAI establishes will be consistent with those national standards. The work of NHS bodies will be inspected and reviewed by CHAI using those criteria. It will become apparent in the work done by CHAI where particular bodies are not operating in a way which is consistent with national service frameworks and with NICE guidance.

5 p.m.

Baroness Barker

I thank all Members of the Committee who took part in this extremely useful debate. I note particularly the comments of my noble friend Lord Russell who, as ever, takes us into the heart of a point very memorably.

The Minister's response was encouraging but not sufficiently encouraging to dissuade me from returning to the matter at a later stage. Great Explanatory Notes of History is not a tome that I have read. The explanatory note that the Minister read out does not carry sufficient force to satisfy me or, I imagine, the noble Earl, Lord Howe. I believe that we agree that there is much good work going on, particularly in national service frameworks. The difficulty is that they do not have the force of statute and their implementation is therefore a matter of some randomness. That is the heart of the issue. The Minister's response did not go far enough to satisfy us that in future all that good work will be implemented. The question remains why the Government are running away from their own good work. I thank the Minister for his reply. I shall withdraw the amendment for the moment but I signal that this is a matter to which I am sure we shall return. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Barker moved Amendment No. 254:

Page 16, line 20, at end insert "; and

(c) services to support independent living and rehabilitation"

The noble Baroness said: I turn to two other matters which again relate to quality in healthcare. The lack of definition of "quality" has concerned a great many organisations in different fields. The double whammy of a lack of definition of "quality" and the lack of clarity about the extent to which foundation trusts will pursue objectives which mesh with the rest of the healthcare system prompt these two probing amendments—Amendments Nos. 254 and 255.

Amendment No. 254 relates to rehabilitation and independent living. The amendment was no doubt drawn up in the wake of our discussions on delayed discharge. There is great fear that foundation hospitals, as bodies concerned principally with acute care which are at some remove from the rest of the healthcare system, will not place the emphasis that they should on the key factors in the lives of the largest number of their users—older people and other vulnerable adults.

Amendment No. 255 refers to the need to consult with patient representatives and clinical experts and tries to determine what quality standards are. In speaking to a previous group of amendments, I said that there was a great deal of emphasis on managerial matters such as response times and numbers of staff. However, there is much less emphasis on what could truly be described as qualitative matters, for example, cleanliness in hospitals. I was reminded of that in our discussions on patients forums. Patients and users had been aware of problems arising from lack of cleanliness in hospitals long before they reached Ministers' desks. The amendment seeks to include those people who have a slightly different perspective on the matter in the drawing up of the definition of "quality". It is important that we seek to widen definitions and to get away from number crunching as a way of determining whether foundation trusts will work and whether healthcare is of a sufficient quality. I beg to move.

Baroness Finlay of Llandaff

I strongly support the spirit of the amendment. Healthcare is not just about trying to prevent disease occurring, diagnosing it early and then treating it. The treatment is often devastating for the patient. Rehabilitation is absolutely essential if they are to resume their lives after treatment. Only this week we have had statistics about the number of patients in chronic unmanaged pain. An amputation might signal the end of treatment for a gangrenous leg, but the path to rehabilitation and eventual independent living is long and tortuous. It requires resources and such patients require support. With good support and good rehabilitation processes outcomes are dramatically different. With such support many of these patients will return to work and feel that they have resumed the role in society from which they were plucked by their illness. Without a continuum of rehabilitation services and the ongoing provision of quality care, many patients will become chronically disabled and depressed and will be unable to contribute to society as a result of their illness. I beg the Minister to include the provision as a quality measure. The bulk of healthcare falls within the list specified in the amendment.

Earl Russell

I am very glad that the noble Baroness, Lady Finlay of Llandaff, said what she did about pain. It is a constant drag on a great many people. Apart from the sheer unpleasantness it is also a constant interference with their ability to work. The incapacity benefit test, as it stands at present, because it measures a person's medical condition in a snapshot taken at one moment simply does not take adequate account of things—it never has done. If the noble Baroness were able to assist in promoting a dialogue between the medical authorities and the Department for Work and Pensions she might make a contribution which would be very valuable to a great many people.

I agree also with what my noble friend Lady Barker said about involving users, by which I take it she meant not only patients but also those who at a more junior level are engaged in applying treatment. She brought back to me a memory of a train journey across Yugoslavia in 1961 in the days when Yugoslavia was still able to pretend to be a country. I was sitting next to a surgeon from Zagreb who was describing the operation of a works council that, because it involved nurses as fully-fledged members, had succeeded in convincing the authorities that it was not sensible to polish the floors until they were so shiny that every nurse fell over when going about her duties. That is a lesson that needs relearning from time to time.

Lord Warner

Amendment No. 254 would add consideration of, services to support independent living and rehabilitation", to the definition of healthcare that, subject to parliamentary approval, Clause 44 will establish as, the promotion and protection of public health", and, services … for or in connection with the prevention, diagnosis or treatment of illness". No one would disagree with many comments made by Members of the Committee about the importance of independent living and rehabilitation being properly linked as part of the patient pathway from ill health to recovery. However, I on the whole suggest that it is not the business of the National Health Service to provide services to support independent living and rehabilitation. That has been seen increasingly as the job of local authority social services, which under the Bill are subject to inspection and monitoring by CSCI. Where such services are provided by the NHS, they would in any event be within the existing definition of healthcare as services provided in connection with the treatment of illness.

I respectfully suggest that there is not a great deal of merit in the proposed change, which would simply confuse the position further on what is social care and what is healthcare. Many Members of the Committee know only too well that those issues have been difficult to define for many people at an operational level. Over the past two decades or so, we have moved a long way down the track of seeing the services as best provided within the world of social care. Many professionals would see the amendment as a slightly retrograde step—as something that goes back on some changes brought about in the past two decades. I am happy to place myself in this camp, based on my experience as a director of social services.

With respect to the duty of equality, Amendment No. 255 seeks to ensure that NHS bodies consult persons such as patient representatives, clinical experts and CHAI to ensure the effective discharge of their obligations to monitor and improve the quality of healthcare that they provide or obtain. Given our increasing emphasis on patient and public involvement, I sympathise with the amendment, but the local clinical governance and other arrangements already in place remain sufficient.

When implemented effectively, clinical governance ensures high-quality patient-focused care. That is why it is and will remain for NHS bodies, as part of their accountability arrangements, to provide evidence that they have appropriate mechanisms in place. Their clinical governance arrangements are, of course, looked at as part of performance monitoring. A key part of the work of CHAI will be to continue to investigate the performance of individual bodies. To ensure that each and every NHS body meets the needs of the population that they serve, each already consults with additional persons such as patient groups as a matter of course.

Although the amendments are well intentioned. I do not think that either is necessary. I suggest as gently as I can that Amendment No. 254 slightly goes; back rather than looks to the future.

5.15 p.m.

Baroness Byford

My contribution will be very small. I am somewhat concerned, having heard the noble Lord's response. I am not quite sure whether he is saying that this is not the right place in the Bill—that is one matter—or that the problem is covered by something else, which is a totally different matter. Rehabilitation is hugely important. As someone who has had two heart attacks, the rehabilitation that I received from one hospital was of very different quality from that of the other.

I shall raise a smaller problem. When I was involved in the WRVS—it was a long time ago—one of the big problems was with those released from hospital and into the responsibility of social services. It was a huge difficulty, and I do not think that it has been solved properly even now, 20 years later.

I add my questioning voice. It is not a Front-Bench voice but my personal interpretation. I came in rather late. Have I misinterpreted a suggestion that the provision would be in the wrong place? However, if it is a good idea and in the right place, I hope that the Minister will dwell on it a little further and that the noble Baroness will take him up on the issue, as it is enormously important.

On another personal account, my brother lost two fingers in an accident. Although his treatment at the hospital was good, it has taken some time to get to grips—that is a bad expression, but it is very true—and cope in a way that he had perhaps never thought of before. I am sure that there must be lots of similar cases. My experience of the two Leicester-based hospitals was that one was very much more highly geared to give specific after-care that was enormously beneficial, and meant that I returned to work very quickly compared with the first time round when it was not the same standard.

Lord Warner

I was not saying that the provision was in the wrong part of the Bill, but that the overwhelming majority of rehabilitation and moving towards independent living was seen as part of the world of social care rather than healthcare. That is not to say that none of it is important in relation to healthcare. Where it is part of healthcare, those issues can be inspected by CHI already. The lead area of relevant inspection should remain with CSCI, which is what we have tried to maintain in the Bill. We are not in any way diminishing the importance of the service areas to which the noble Baroness draws attention.

Baroness Finlay of Llandaff

Will the Minister clarify something for me on rehabilitation, as I am feeling a little confused? Highly specialised physiotherapy and occupational therapy, limb-fitting services and other very technical services are currently called rehabilitation services. All the people working in those services would seek reassurance that they were not suddenly being excluded from healthcare and transferred across. They view themselves very much as core members of the management team within healthcare, which I think is precisely why the noble Baroness tabled the amendment.

Lord Warner

All of us who have worked in health and social care want the individual patient experience to be seamless as they move from one to the other, as many people do. It is inevitable that, at some point, the NHS ceases to take responsibility and that the social care agency takes it. The precise time when that happens varies slightly from one part of the country to another, and is slightly different for different individuals.

The amendment and this part of the Bill are not about the merits or demerits of rehabilitation or independent living, but about the inspection and review arrangements for those services. There are two inspectorates, CHAI and CSCI. All that we say—it is a much narrower point than some of the debate—is that primary responsibility on inspection in this area is likely to be with CSCI, because the great bulk of the work on rehabilitation and independent living takes place in social care. We are not saying that there is no rehabilitation and no independent-living work in the health services. The primary inspection responsibility should not be confused, because it is likely to rest in CSCI. All that we are arguing is that the amendment could confuse the responsibilities of the inspectorates.

Baroness Noakes

Is the Minister saying that rehabilitation services within NHS bodies, such as those referred to by my noble friend Lady Byford and the noble Baroness, Lady Finlay, would be inspected by CSCI rather than CHAI? That was not my understanding.

Lord Warner

When the noble Baroness reads Hansard, she will see that I said that under the definition of "health care", one could include rehabilitation and work towards independent living, but I said that the bulk of that work was undertaken in a social care world. We have already discussed whether there would be protocols between CHAI and CSCI or joint working. There may well be reviews in which both inspections are involved. Noble Lords are attributing to my words—though I am pleased that they are listening to them—much more importance than is required. I have said merely that rehabilitation and independent living are primarily social care areas which are likely to be the responsibility of CSCI, but I have not said that they will be the responsibility only of CSCI. Healthcare includes those elements and, where it does, CHAI will have an involvement.

Baroness Noakes

In that case, where in subsection (2) of Clause 44 would one fit rehabilitation?

Lord Warner

"Treatment".

Earl Russell

As the Minister has now returned to the point twice, I shall touch on a point that I was going to refrain from making. He has slightly misunderstood the grammar of my noble friend's Amendment No. 254. I do not think that it was the purpose of that amendment to suggest that the NHS should be in charge of independent living. The word which governs that amendment is "promotion"— promotion of health and of independent living. In neither respect does the amendment suggest that the NHS should be in charge of all health. As I understand them, the words of the amendment are teleological. They describe a purpose to which "health care" should be addressed, not a continuing condition for which the NHS should be responsible. That makes a number of the Minister's criticisms a little wide of the point.

Lord Warner

In order for us to move on, I shall take away the amendment and have a look at its wording. I would be surprised if we were to shift our position, but I am happy to review the matter in light of possible confusion about our position. Before Report, I shall write to all noble Lords about the issue.

Baroness Barker

I thank all noble Lords who took part in that discussion. It perfectly encapsulated some of the worst things that are happening in hospital discharge. The debate perfectly encapsulated the gap between discharge from acute hospitals and community care.

I imagine the Minister is relieved that he did not sit through the many hours of the Community Care (Delayed Discharges) Bill when we discussed those matters at considerable length. It was feared then, as it is now, that continuing healthcare in the community had been inappropriately considered. My fear, and it has perhaps grown in the past half-hour, is that the inspection regime has not been fully thought out or joined up.

I thank all noble Lords. I will await with eager anticipation the noble Lord's letter to me, but I hope that he is not defensive of his position and takes on board the intent behind the amendment, which was precisely to see joined-up services in rehabilitation. On that note, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 255 not moved.]

Clause 44 agreed to.

Earl Howe moved Amendment No. 256: After Clause 44, insert the following new clause—

"STANDARDS

1. (1) The CHAI shall 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 statements 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.
1133
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 44."

The noble Earl said: In moving Amendment No. 256, I shall speak also to Amendments Nos. 336, 344 and 345. Amendment No. 256 precedes Clause 45 for a very good reason. It both anticipates and diametrically opposes the provisions of the clause. That provides us with a classic illustration, if ever there were one, of why the amendment tabled by my noble friend Lady Cumberlege at the start of the Committee proceedings was so apposite.

Clause 45 is a mark of the Government's obsession with political control of the health service and it is profoundly misconceived. It states that the standards to which healthcare is provided in the NHS are for the Secretary of State to determine. The principle underlying my amendment is simple. It is to state that the standards which are promulgated in the NHS and the equivalent standards adopted in social care should be those for which CHAI and CSCI respectively can claim full responsibility as independent bodies.

I have used the words "principal guardian" in the amendments and I hope that these convey the right connotation of ownership that is predominant but not exclusive. It is to be hoped that when standards are set in the NHS everyone will feel ownership of them, but CHAI will be their chief defender and promoter. The Government say that CHAI is there to assess whether the standards set by the Government have been reached and that it would be quite wrong for the body responsible for setting standards to be promoting them. This amounts to saying that CHAI cannot be judge and jury in its own cause.

I believe that that is exactly what CHAI ought to be. The standards by which the quality of healthcare is to be measured should not be for politicians to determine. As the noble Earl, Lord Russell, pointed out last week in a characteristically acute intervention—and I am sorry he is not in his place now—benchmarks that are set for the NHS by politicians contain hidden clinical judgments.

The present Government came to office in 1997 proclaiming a healthcare standard: it was that fewer people should be kept waiting for treatment. To the voter, that standard seemed sensible. But arising from it, targets were set which meant that the NHS, instead of being in the business of treating the sickest patients first, was all of a sudden in a numbers game. The standard and the targets worked directly contrary to the interests of patients because they distorted clinical judgments.

The Government have now moved away from a pure numbers game by focusing on waiting times, but they are in exactly the same trap. While it can matter very much how long a patient has to wait for in-patient treatment, what really matters is that the sickest and most urgent cases are treated before less serious ones. These are prime examples of how political interference in setting standards can damage patients—and I could name others.

To me, this issue is the crux of Part 2 of the Bill. The Secretary of State can try to influence CHAI insidiously through the purse strings that he holds and the appointments that he makes. Each of these is wrong. But if CHAI is not to be fully responsible for the standards that it upholds and cannot defend those standards to the hilt as clinically and ethically well-founded, its credibility will be non-existent.

Nor is there any sense in proposing, as the Bill effectively does, that the standards of quality that are observed in England should be different from those that are observed in Wales. It is a nonsense to think of a different and parallel set of standards operating in Wales, yet Clause 46 explicitly provides for different standards to be in force in Wales, set by the Assembly.

We all know about devolution—like it or dislike it— but to say that there should not be a uniform set of standards recognised on both sides of the Border is carrying devolution to excess. We will have an opportunity to debate Clause 46 a little later.

What I passionately want to see emerging from the Bill are two organisations—CHAI and CSCI—which command the confidence of patients, of hospitals, of PCTs, local government, care homes and the general public. They should bestride the NHS and social care and they should bestride politicians.

If need be, CHAI should be in a position to say to the government of the day and to the Assembly that this or that is what should happen for the good of NHS patients and these are the standards that we should use for measuring the delivery of the service. The second-guessing of standards by Ministers is, in my view, no way to proceed.

Therefore, I make no apology for the amendments. They go to the heart of the difference of approach between the Government and ourselves towards professional autonomy in the health service and beyond. The Government should be letting go of the reins. I beg to move.

5.30 p.m.

Baroness Barker

I shall speak to Amendments Nos. 259, 261, 262, 263, 265 and 267, which are grouped with those of the noble Earl, Lord Howe. These amendments follow very much in the same vein as those outlined by the noble Earl. In order to have the confidence of the public, the process of setting standards should involve the key stakeholders— particularly patients.

I return to the matter of national service frameworks. One reason that the national service frameworks are so good and effective is that they are the product of collaboration between researchers and clinicians and, in particular, they involve patients in the process. One of the greatest things about national service frameworks is that they counteract the often episodic view of illness which can come across from a strictly clinical point of view.

We believe that, taken together with the approach of the noble Earl, Lord Howe, the amendments that we have tabled provide the way to achieve a set of standards in which confidence can be sustained. Therefore, it is my pleasure to support the noble Earl, Lord Howe.

Lord Warner

I shall backtrack a little. The report from the Office of Public Services Reform, published earlier this year, sets out government policy on the respective roles and responsibilities of those involved in the inspection of public services. It clearly sets out the role of Ministers and their departments as being, to set standards determining how the service is to be delivered and to make sure effective performance management systems are in place". That is our general proposition on setting standards and on their relationship with measuring performance. I shall elaborate on that a little.

It remains our view that it is wrong for the bodies responsible for inspecting services and for ensuring that they comply with certain standards to also be responsible for setting those standards. Furthermore, it is also entirely wrong for government to abrogate their responsibility for setting the standards of care for NHS patients and for those in receipt of social services to independent commissions. That would be the effect of the amendments.

I suggest that it is for the government of the day to determine the framework within which the NHS and social services should operate and to set the budget commensurately. Setting the standards for health and social care provision enables the Secretary of State to match performance expectations with funding. It would be entirely inappropriate—some would say 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 was very interested in the noble Earl's view that one can let an inspection body set 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.

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 for the performance of those same services. I want to remind noble Lords what my noble friend Lord Hunt said at Second Reading. He said that we cannot, completely divorce the NHS from politics. Politicians do have to make judgments about national standards. They do have to make judgments about resources".—[Official Report, 8/9/03; col. 68.] I suggest that those same principles apply to social services in a global sense.

Healthcare standards set by the Secretary of State are the core tool for ensuring increased levels of quality in the health service. Setting healthcare standards, implemented at a local level and assessed by an independent body, is the means by which the Government can ensure that the greatly increased resources being provided for the health service— around 7.5 per cent in real terms per year—are appropriately directed and spent wisely.

The power of defining the standards of health and social care will be inclusive. We are not saying that they will be written by people simply sitting in Richmond House. Our draft standards for healthcare, on which we are working, will be subject to a three-month public consultation later this year and that will take full account of the views of all stakeholders, including CHAI.

For English local authority social services, there is a long and well-tested route for setting standards under Section 7 of the Local Authority Social Services Act 1970. Standards issued under that provision are well known and respected by local authorities and are used in the assessment of performance by the Social Services Inspectorate. That process has been in existence for a very long time. Indeed, in an earlier incarnation I was subject to that inspection regime against national standards. CSCI will continue the practice and will be able to take an overview of the quality of all social care services using standards issued under that section and national minimum standards issued under the Care Standards Act.

In addition, in Clause 53 we provide particular provisions for CHAI to advise the Secretary of State of changes it thinks should be made to the standards that he issues for healthcare. Using existing provisions of the Care Standards Act and Clause 75 of this Bill, CSCI will also be able to advise on standards for social care issued by the Secretary of State. Therefore, when the inspectorates find things which suggest that modifications of national standards should be applied, we are not saying that there is anything to stop both inspectorates communicating their views on that to the Secretary of State and, indeed, where necessary, putting those views into the public arena.

Standards are not static: they change over time. They can change to respond to public expectations, growing expenditure and concerns about health. We suggest that amending them in those circumstances is the job of elected governments, not inspectorates.

Unlike other amendments in this group, Amendment No. 263 would leave the Secretary of State to set standards but would require him to undertake a process of public consultation before publishing them. As I have said, the Secretary of State will not burden the health service with health care standards which do not have wide support. I have indicated that we shall have a full range of consultation on any national standards provided by the Secretary of State under Clause 44.

I shall not make a long speech about Wales. Essentially, the short answer to the points raised is that we devolved responsibility for health care to the Welsh Assembly. It is for the Welsh Assembly, alongside the Secretary of State for Health in England, to set the standards for Wales in accordance with their needs and under the terms of the devolution settlement for Wales. Many of the same arguments that I set out for England apply in the Welsh context except that it is the responsibility of the Welsh Assembly rather than that of the Secretary of State for Health.

Earl Howe

I did not expect to persuade the Minister in my remarks. The situation is quite simple. We do not agree that Ministers should set standards. There is a fundamental disagreement running through the heart of this debate. From our point of view this is all about taking politics out of the health service. That is a consistent theme of the Opposition throughout the Bill.

I have no difficulty with the Secretary of State feeding budgetary stipulations into the formulation of standards. Indeed, my amendment allows for that. However, I deeply believe that the health service should be assessed against objective standards of quality—as objective as they can be—and standards which everyone can see are evidence-based and which do not have unintended consequences. All of the standards set by the Government in the past few years—waiting lists, waiting times, A&E waits, two-week cancer waits or whatever they happen to be—are well-intentioned. However, they are all wrongly formulated because they have unintended adverse consequences. If in a major part of its work CHAI is just the poodle of government Ministers, we are merely perpetuating central control of the NHS by indirect means. Sooner or later—probably sooner—that would work to the detriment of patients. Standards of quality in the NHS are not to be defined as whatever the Secretary of State thinks patients want. That is the nub of this issue.

We cannot get any further here. I note what the Minister said. I do not agree with it. I think that this is a theme we shall pursue. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Byford moved Amendment No. 257: After Clause 44, insert the following new clause—

"LOCAL POLLS ON FLUORIDATION

(1) A Strategic Health Authority may conduct a poll to ascertain the views of those polled about—

1. (a) any recommendation to fluoridate local water supplies; or
2. (b) any recommendation to cease fluoridation of local water supplies.

(2) It shall be for the Strategic Health Authority concerned to decide—

1. (a) who is to be polled, and
2. (b) how the poll is to be conducted."

The noble Baroness said: Many noble Lords are aware that when we took the Water Bill through this House earlier this year, one of the provisions which was added late in the day involved adding fluoride to the water system. As I am sure the Minister is aware, this issue is hugely controversial.

When the Bill was originally presented to us that particular section was not in it. We debated through Committee and still it was not added. It was not until we were coming towards Report stage that we insisted that we should have a separate Committee stage to debate this important issue. Whether one is for or against the idea, it is controversial as, indeed, we proved in the House.

The reason for bringing this matter before the Committee tonight is that when we debated it at that time in the Water Bill we were told that the responsibility for the decisions to be made would be taken away from the water companies and local authorities and given to the Strategic Health Authority. As this Bill is now before the Committee it seemed foolish not to seek clarification of how the Government intend to proceed.

The Water Bill is currently before Members in another place. They too will find this whole question of adding fluoride to the water a very controversial issue and perhaps be more split than your Lordships. To be fair, I believe that the majority of noble Lords feel that it is wrong to deny the addition of fluoride to the water if it will save children's teeth. That is the big argument. Others will take the opposite view and say that it would be better to supply free toothpaste and toothbrushes to all families who could then go about their business in the normal way. Some people say that we are creating a nanny state and that people should organise their health in a better way. So that was the debate when we discussed the issue earlier.

I tabled the amendment to try to discover from the noble Lord, Lord Warner, whether the Government have given any further thought to the subject since it was raised in the summer. The matter is quite complicated. My understanding, unless the situation has changed since the summer, is that one strategic health authority might take one view and the neighbouring authority another, but that they are both supplied by water from the same water company. Whether the Government have solved that practical problem since our discussions earlier this year, or whether it has just been left quietly in the background, I cannot possibly judge. Certainly, it is a very great issue in the country.

As I say, I do not call for families to be denied opportunities. The purpose of the amendment is to seek guidance. We were told in our debates that the Government would go to public consultation. They were not able to tell us how that consultation would take place. They were only able to tell us that it would not be one person one vote. No more information was given about how these strategic health authorities would achieve their aim.

I apologise for raising an issue which is perhaps a little wide of many of the Committee's discussions, but it is a timely opportunity for me to raise it in this important Bill. It may be that we shall not have another important health Bill in which this issue can be addressed. I beg to move.

5.45 p.m.

Earl Howe

My noble friend has made a very well-reasoned case. I hope the Minister will respond constructively. I would only add to what she has said by making a couple of brief points. If polls are held, those who vote should obviously be well informed. I would hope that any poll would be preceded by proper public consultation on what are, after all, complex issues. Polls on their own are clearly not enough.

I am relaxed about the idea of strategic health authorities instigating polls. Whether they are the right body to conduct polls is another question. I am a little doubtful about that because it is unlikely that strategic health authorities would be regarded as neutral in this debate. But that is a detail.

I am sure my noble friend would agree—and she has acknowledged as much—that ideally her amendment would sit better in the Water Bill rather than in this one. Nevertheless, I take no exception at all to her initiative in raising the matter under this banner. I look forward very much to hearing what the Minister has to say.

Baroness Andrews

Barely four sitting weeks ago, we did indeed have a very lively debate on this issue. I thought that it was rather good fun. One matter we agreed on eventually was our wish to give local communities a real choice on whether to have their water supplies fluoridated. We had some considerable discussion on that.

The Water Bill, which is still in the Committee stage in another place, addresses the full range of issues which must be addressed to remedy the flaws in the existing legislation on fluoridation. The noble Baroness will know that those provisions cover the rights and duties of the water companies, the publication of proposals and the consultations required, as well as the assessment of public opinion. The Bill includes enabling powers to make regulations on consultation and the assessment of public opinion.

Perhaps I may just reiterate the stage we have reached, which is simply to restate that strategic health authorities will have to ascertain public opinion on fluoridation schemes. The final decision on schemes will rest with the strategic health authorities. I am sure that the noble Baroness will remember, in our debate in this Chamber, my noble friend Lord Warner speaking at great length—perhaps even exhaustive length—about the range of options which the SHAs could undertake in order to ascertain public opinion. He spoke of everything from local TV and radio to public opinion surveys involving the professional bodies and achieving, as an objective, a means of measuring public opinion from the widest range of backgrounds as possible.

We also spent some time discussing the nature of the regulations. I would say to the noble Baroness that these will be affirmative regulations. They will return to this House and there will be another opportunity to discuss their nature and content. I again restate what my noble friend said: this will not be done in a "hole in the corner manner". Indeed they will require the SHAs not least to seek the views of the local population.

The point is that even before we get those affirmative regulations in this House, they will have to be consulted upon. I feel sure that when they return, the process will meet the issues about which the noble Baroness is concerned—the necessity of making sure that the consultation is valid and is robust; that it takes into account the wider fringes of opinion; and that the eventual decision is that which meets the wishes of the local community.

I hope that with those reassurances she will accept that we are trying to go the extra mile to make that a proper process. I look forward to her contributing again on the affirmative regulations. I hope that the noble Baroness will find it possible to withdraw her amendment at this point.

Baroness Byford

I thank the Minister for her considered response. When I say that I am not happy, I mean it genuinely. I feel that we have moved no further since the summer. She is right to say that we had a long debate and that the noble Lord, Lord Warner, kindly listed all the various options but, at the end of the day, a small word remains in my mind: how? I am no further forward on that. I think that the noble Baroness has again said that nothing has been decided; that various options are open to us; and that we shall try to end up by reflecting what the local community wants, although we have still not discovered how to do that.

The noble Baroness—and the noble Lord, Lord Warner, during our previous discussion—said that regulations would be laid under the affirmative procedure. That is a start, but we cannot change regulations—unless the noble Baroness tells me that we can; my understanding is that we cannot. So the only chance that we have to clarify what will happen is when a Bill is in front of us. During debate on the Water Bill I was told that that was impossible and that I was out of order: it would be the responsibility of the health authority, which is why I am back here pursuing it.

I thank the noble Baroness for her genuineness. I am not happy, but I must wait to see what happens to the Water Bill at the other end of the Corridor, because I know that many honourable Members on all sides of the House are extremely exercised by the problem. I went to the Public Bill Office because I was not sure whether I was technically correct to raise the matter tonight, so I apologise to the Committee, but I am technically correct to do so. I hope that doing so will push the Government a little further towards giving us greater guidance on how they envisage the regulation being advanced—if possible, before the Motion that the Bill do now pass. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 258 not moved.]

Clause 45 [Standards set by Secretary of State]:

[Amendment No. 259 not moved.]

Earl Howe moved Amendment No. 260: Page 16, line 24, leave out "may" and insert "must The noble Earl said: On behalf of my noble friend Lord Peyton, and at his specific request, I move Amendment No. 260, standing in his name and speak also to his Amendment No. 264 as well as my amendment, Amendment No. 260B. Were he here, my noble friend would speak much more trenchantly than can I on the matter to which he draws the Committee's attention. It relates to the concern that he has so often, rightly, raised about the role of the Secretary of State and what the Secretary of State ought to be doing. The clauses give wide powers to the Secretary of State running parallel with the wide powers of CHA1.

Were he here, my noble friend would reiterate his concerns about double banking and second guessing of CHAI by the Secretary of State—and vice versa. I am sure that my noble friend will want to return to the matter on Report, depending on the answer that the Minister is kind enough to give.

CHAI's remit has a number of broad headings—for example, the effectiveness of NHS management, the delivery of patient care, and so on. If standards must be set by the Secretary of State—it seems that the Minister is not to be persuaded otherwise—they should be set only in respect of those broad headings.

If that happens, some, but not all, of the objections that I raised on the previous group of amendments will fall away. If that occurred, CHAI would set the criteria for the standards and monitor performance accordingly. But we should not countenance a multitude of standards set by the Secretary of State, some of them perhaps overlapping with the standards and criteria set by CHAI. That would place CHAI in a very difficult position. The broad domains of CHAI's work are a legitimate focus of interest for the Secretary of State, but those domains are few in number; hence the amendment that I have tabled. I beg to move.

Baroness Barker

I shall speak to Amendment No. 266, which is in this group. Following our recent discussion on an earlier group of amendments, Members of the Committee will not be surprised to learn that we feel that, if the Secretary of State is to set the standards, he or she must be required to consult patient representatives, clinical experts and CHAI. The amendment is yet another attempt to ensure that the standards to which healthcare must be provided, and that CHAI must inspect, are clinical targets not political measures. It is as simple as that. I make no apologise for expressing our view in those terms.

Lord Warner

I was interested to see the amendment tabled by the noble Lord, Lord Peyton, suggesting that the Secretary of State must publish national standards. It suggests that he is a strong supporter of the Government's position as outlined in the previous discussion. I do not wish to go over all the ground again. I wish to remind Members of the Committee of the context of our approach. The Government undertook, in their response to Sir Ian Kennedy's Bristol report, to ensure the development of standards for the NHS. We think that that is a function of the Secretary of State.

When the Government announced the establishment of CHAI, they stated that there would be inspection against clear national standards and a continuation of the vision for CHI set out in Learning from Bristol. We have already held nine workshops, attended by more than 200 key stakeholders drawn from patients, clinicians, representatives of professional and voluntary organisations, NHS managers and many others. The advice from those individuals is helping us already in the development of national standards. We are reaching out to people on the frontline with responsibilities for delivering healthcare in the framing of those national standards. We will publish a draft statement of standards later this year for a wide-ranging public consultation process. We will undertake appropriate consultation when any future amendments are made to the standards. We are absolutely committed to a full range of consultation.

The standards will cover all aspects of services, including safety and efficacy, the involvement of patients, their families and carers, accessibility and responsiveness, environment and amenities—such as food and cleanliness standards—and governance, both clinical and corporate. They will come into effect in April 2004. I must disappoint the noble Earl by saying that, from the work that we have done already, the arbitrary figure of 10 that he proposed would be impracticable and would help neither the inspectorate nor the National Health Service. That is the approach that we are adopting.

We do not think that it is necessary to name the specific groups that would be consulted, as the amendment in the name of the noble Baroness, Lady Barker, proposes, which specifies, patient representatives, clinical experts and the CHAI". Worthy though they are, the amendment would give them a statutory status denied to a wide range of other groups that will be involved in the process, such as voluntary and charitable organisations, non-clinical specialists, trade unions, management organisations, international experts, NICE—which we discussed earlier—the National Patient Agency and the Health Protection Agency. I could go on. A wide range of people is involved in the process of devising national standards. Well-intentioned though the amendment is, it is too narrow. The process of setting healthcare standards will be an inclusive one and we do not believe that the amendments are necessary.

Earl Howe

I am grateful to the Minister, but I am dismayed to hear that the department intends to promulgate an inordinate number of standards for CHAI to implement. I can only return to the concerns that I raised in a debate on a previous group of amendments. The provision is inordinately prescriptive. I am not sure how welcome the Government's approach will be to CHAI either, although that must be a matter for Sir Ian Kennedy to judge. Clearly, my amendment was a probing one. It has probed very successfully and we will have to reflect long and hard on the implications of what the Minister has told us. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 260 A to 267 not moved.]

[Earl Howe]

Clause 45 agreed to.

Clause 46 [Standards set by Assembly]:

Earl Howe moved Amendment No. 268: Page 17, line 6. after "such" and insert "NHS bodies in areas of England adjoining Wales and cross-border SHAs and such other The noble Earl said: Even if the Government are unable to agree with the arguments that I tried to put forward earlier, I would strongly urge them to consider this amendment. It suggests that, before publishing a statement of standards, it should not be enough for the Assembly to consult such persons as it considers appropriate. It should be obliged, at the very least, to consult those hospitals and SHAs in border areas of England that may be affected by the standards that the Assembly sets in Wales.

English hospitals will be performance managed by English strategic health authorities according to standards laid down in England. If those hospitals accept Welsh patients, everyone must be clear about the standards to which doctors, nurses and managers should be working with regard to the care of those patients. If it is proposed for example, that Welsh NSFs, not English NSFs should apply to Welsh patients, not only do the English hospitals and their doctors have to sign up to that difference, the strategic health authority must also take it into account for performance management purposes. To take a hypothetical example, if beta interferon were the treatment of choice under Welsh standards of MS treatment but not English ones, that would have direct budgetary and clinical consequences for English hospitals and their staff.

Alternatively, the Assembly may accept that Welsh patients who are hospitalised in England should be subject to English standards of treatment. In that event, equally, consultation would be necessary with those English health bodies potentially affected.

Ideally, the standards laid down on both sides of the border would not differ from one another, but if that is to be made to happen—as opposed to being a fond hope—there is no possible argument for the Assembly failing to consult relevant health service bodies in England. Either way, with the greatest respect for our Welsh friends and colleagues, it makes no sense for Wales to treat itself as an island in drawing up its standards of treatment. It must bring into its deliberations all those across the border whom its decisions will affect. I beg to move

Baroness Finlay of Llandaff

I have listened carefully to the debates about standards, and I have many questions for the Minister about the relationship between devolved healthcare in Wales and the situation in England. I seek some assurances.

My understanding was that, if the Secretary of State set standards in England, the National Assembly for Wales would have to pick up through CHAI only the standards that it thought were important for the population of Wales, particularly if there were thematic issues, such as apply to cancer care, or major cross-boundary flows, such as in cardiac surgery. That would allow the Assembly to benchmark services in Wales against services in England, and it would be able to establish local standards in Wales that would be monitored by the healthcare inspection unit in Wales, which will benchmark standards throughout Wales. The reason was that inspections by CHAI in Wales would not be as frequent as those by the healthcare inspection unit, whose role would be to run an ongoing monitoring process to drive up standards.

I seek clarification that the clause will ensure that that process will happen, that, as part of that process, cross-border issues will be covered and that, with thematic flows, there will be equity of standards for patients travelling across the border.

Baroness Andrews

Some of the issues raised by the noble Baroness, Lady Finlay of Llandaff, come up in a later amendment. I may decide to answer them in the context of the later amendment. I may also decide that it would be better to answer her specific questions in writing to ensure that there is clarity of understanding on the issues.

The noble Earl's amendment would place an obligation on the Assembly to consult English NHS bodies operating in areas that adjoined the Welsh border before publishing a statement of standards. I hope that I can convince the noble Earl that such an amendment is unnecessary.

The noble Earl said that everyone needed to clear about what will be inspected and against what standards and why. We have not had the clause stand part debate on Clause 46, so I simply refer to what my noble friend said about how important it was that Wales developed its own standards. He made the dual case that it was a devolution issue, as a matter of principle, and, secondly, that it was a practical issue because Wales was different. It would take me too long, even with the assistance of the noble Baroness, Lady Finlay of Llandaff, to explain why Wales is so different, but the Committee must take it from me that it is.

One of the things to be seen particularly in Wales is a different pattern of epidemiology. There is different social and medical geography, and there are different concentrations. Obviously, clinical standards do not vary, but the new Welsh health authorities are trying to deal with issues in a different way. Within what we might think of as a suite of standards—not simply a set a standards—clinical standards will be the same, but organisational principles will be different. For example, in Wales, one of the organisational targets that we might set is to have more work done through the medium of Welsh. We might also, for example, see a higher priority being given to primary care because of the relative quality of primary care. Therefore, there will be differences in the priorities that are set. When we are talking about Welsh standards, that may be the type of priority we are considering.

As regards the amendment, I want it to be clear that, under the Bill, the Assembly does not and will not set standards that apply to healthcare provided by English bodies for English patients: nor should it.

Ultimately, it will be for the commissioning body— whether it be Welsh or English—to take responsibility for the provision of care to patients from its areas.

The Assembly's responsibilities for setting standards quite properly extend only to the NHS in Wales and to those English bodies which provide healthcare for Welsh patients under the commissioning arrangements already in place. Those commissioning arrangements have been in place for many years and they work. There has rarely been much contention attached to them.

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 to ensure that the terms of the contract have been complied with. Since those boundaries will be in place, there would be no reason for cross-border consultation because I am certain that it will be clear.

I stress, as I have before, that clinical standards do not and should not vary across the NHS in England and Wales. In setting standards in Wales which reflect the particular needs of Wales, as I have tried to illustrate, the Assembly will do that in the light of cross-border England and Wales bodies, such as the National Institute for Clinical Excellence and the Royal Colleges. With those reassurances, I hope that the noble Earl will withdraw the amendment.

Earl Howe

I realise that the noble Baroness has tried to be helpful. Patients in Wales and England do not expect two sets of standards that are roughly the same. They expect the same sets of standards, which, I believe, are quite a different matter from prioritising healthcare needs. The Welsh Assembly is entitled to prioritise the way in which funds are used to treat patients in Wales. I have no quarrel with that. The standards by which those services are delivered should not differ from those that operate in other parts of the country.

We might debate Clause 46 stand part to wrap up these issues. I sense that a number of Members of the Committee would welcome a return to this issue, albeit it a brief one. I do not propose to say any more on the amendment. I am disappointed that the noble Baroness seems to think that there is no need for a consultation requirement for the Assembly. I still believe that there is. I shall read carefully what she said and I will reflect on the matter between now and Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 46 shall stand part of the Bill?

Earl Howe

I approach Clause 46 from the point of view of the patient. A patient would regard it as a total nonsense if, as soon as the Bill comes into force, a process of standard setting takes place across the Welsh border that is entirely separate from the process taking place in England. Why cannot there be co-operation and co-ordination leading to a single set of standards and a single inspectorate? Why cannot CHAI and CSCI be guardians of a uniform set of standards in both countries and monitor those standards independent of government?

The noble Lord, Lord Warner, remarked earlier that health is a devolved matter. Yes, he is right to say that, but it cannot be an entirely devolved matter or else Clause 46 and all the Welsh provisions would have no part in this Bill. Westminster still has primary legislative responsibility for health matters in Wales. On that basis, I can only repeat that I believe it is totally unnecessary to have different standards operating on each side of the border.

I believe that different national service frameworks apply in Wales for diabetes, heart disease and children's services. There can be no sense in that. This is not to criticise the competence of the Assembly or what is set out in those national service frameworks; it is simply to say that standard setting by the Assembly is needlessly confusing and a duplication of effort. As I said earlier, the Assembly has the right to determine priorities for healthcare in Wales, but that: is quite different from saying that the standards by which care is delivered have to be different from those in force in England. Everyone should agree what are the standards and one body should be tasked with monitoring them.

If one pursues this, different standards presuppose different treatments. If that is so, one must ask: to what purpose? Heart disease is still heart disease wherever it occurs. Diabetes is still diabetes. Yet it is perfectly possible to imagine the treatment of choice for a particular condition being different depending on which side of the border a patient is being looked after and which national service framework is in force. That cannot be a sensible result of devolution; it has to be just plain crackers.

The issue will come into starkest focus in hospitals located near the border, as we have just debated. In hospitals such as the Countess of Chester Hospital in Chester, doctors may find that they have to administer one type of treatment to an English patient and another type to a Welsh patient suffering from exactly the same condition. How is the performance of those doctors then to be assessed? Either we will have duplicated inspections of those hospitals by CHAI and then again by Welsh inspectors, which would be crazy—I hope that that will not happen—or we will have CHAI tasked with inspecting the treatment of Welsh patients as well as English, but doing so, in the case of the Welsh patients, against benchmarks to which it does not subscribe. That again would be crazy. All we are doing here is tying ourselves up in knots.

It is not enough merely to hope that the standards on either side of the border will marry up with each other, as the Government appear to be doing. What the Bill proposes is manifestly not in the interests of patients.

6.15 p.m.

Baroness Barker

My noble friend Lord Clement-Jones has also put his name to the Question whether Clause 46 should stand part of the Bill. The noble Earl, Lord Howe, said that he approaches this matter from the standpoint of the patient. I think perhaps that he approaches it from the standpoint of the English patient. As I listened to his words, I became less convinced of his arguments, although I agree that the clause is worth debating, as is the preceding clause.

Noble Lords on these Benches have the same concerns about standards being set by the Assembly, but only on the basis that we have expressed concerns about standards being set by the Secretary of State. I believe that it is entirely possible to approach this from the standpoint that there may be healthcare needs in Wales which are different from those in England and which may then lead to the development of different standards.

For example, there is a high prevalence of pneumoconiosis in certain areas of Wales. Therefore, while it is entirely reasonable to accept that common standards can be set for some conditions, to which people living on both sides of the border may subscribe, how those standards are implemented may well differ on a national basis. We are concerned whether Clause 46 does in fact give the Assembly the freedom it needs to achieve standards in a different fashion.

Earl Howe

Will the noble Baroness allow me to intervene? I think that she is confusing standards with the criteria of treatment. Standards should be standards, wherever they are set. If someone suffers from pneumoconiosis in England, they should be treated to the same standard as if they suffered from the condition in Wales. The criteria may well differ on either side of the border.

Baroness Barker

I would cite the example of Northern Ireland, where they are attempting to achieve the same standards of healthcare but are going about it in a completely different way with money that they have been awarded by the Government. If they can achieve the same standards in a different way, that is a legitimate thing to do. But there may be conditions in Wales which require different standards—which is also a legitimate concern—and that is one of the freedoms that we would wish to see before the Assembly.

Baroness Howarth of Breckland

I differ with the noble Baroness, Lady Barker, and agree with the noble Earl, Lord Howe. Standards are standards and implementation criteria are the way in which you achieve those standards.

I intervene briefly to raise an issue which, I fear, I have raised slightly tangentially before. It is a matter about which I am still uneasy. I refer to the issue of specialist care. I again cite the example I know best of children who suffer from single ventricle conditions. An organisation called Little Hearts Matter is working to ensure that children in Wales, Scotland, Northern Ireland and England receive the same standards of care.

I am referring to very specialist care. If a child does not receive the exact care he or she will simply die. I know about that condition but I am sure that there are examples in the treatment of cancer where patients need a particular specialist care and for the same standards to apply wherever they are. Can the Minister reassure me about such standards?

I met the family of a child who was ill in Wales. It took two hospitals to diagnose that the child was suffering from a single ventricle disorder before the child was transferred to a specialist hospital in England, where the correct treatment was received. A child in England went straight to that hospital. Luckily, both survived—but the chances of the second child were far higher than the chances of the first.

Diagnosis standards and standards of treatment need to be the same, although the way in which we reach those standards may be different. I want to be absolutely sure that the treatment of specialist conditions will have standards clearly set wherever it may be in the United Kingdom.

Baroness Finlay of Llandaff

As someone who is practising in Wales I have been involved in these discussions from both sides. I hope that what I say may add a little clarification because I believe that there is not as big a difference between everyone as there would appear to be at the moment.

As I understand it, the Assembly has no problem at all with the thematic standards for specialist services and children being treated equitably. Unfortunately, if a diagnostic delay occurs in one hospital, or a diagnostic delay occurs in a hospital in England, it could be due to 100 different reasons that may have nothing to do with the standards specifically set.

There are standards and, yes, there are absolute standards—and those standards should be reached everywhere. But there are additional issues in relation to the delivery of standards in Wales. It is very important that we involve local clinicians in the generation and the wording of the standards in order to take them along with the improvements to be instigated. We need to ensure that they have ownership of the standards as they apply to Wales, and that they are not perceived as standards written by the Secretary of State in England and catapulted into Wales. That certainly would not be accepted by the professionals who have to enact the standards. Minimum standards have to be emblazoned on their consciousness at all times to ensure that they are met.

The consultation process and the necessity of taking the profession along with this requirement has meant that differences have emerged in regard to the need to deliver healthcare services to the population of Wales. My understanding is that the Assembly will be subject to, observe and respect the standards set by CHAI; that the inspectorate from CHAI will cover England and Wales; and that therefore specialist services will be benchmarked, Welsh patients against English patients in different regions in England. In addition, health inspection in Wales will take this local process of consultation and try to drive up standards of care in those areas which have a lot of work to do.

It is with a fair degree of shame that I have to admit that in parts of Wales there is a lot of work to be done. We have very specific recruitment and retention issues in some parts of Wales. We have some problems that relate to the history of the health services in Wales. We also have problems that relate to the industrial history of the population of Wales, which have not applied in the same way, by and large, to the population in England. The percentages and the numbers affected are very different. It has been my understanding that there is no wish to lower the standards in Wales but there is a recognition of a gap that needs to be driven up, and the professionals have to go with it.

I do not think people are that far apart. The Assembly is only too aware of the need to drive up the minimum standards, which it has been attempting to do.

Baroness Andrews

I am extremely grateful to the noble Baroness, Lady Finlay, for that explanation, which she delivered with the authority of her profession working in Wales. She is absolutely right, and I hope she has reassured noble Lords that there will be no difference in the standards of clinical care provided, or between desired patient outcomes, in England or Wales. However, she has explained that there are differences in the ways of doing things and the way in which the bodies will work. She has drawn attention to the fact that there will be a health inspectorate in Wales which will be created under the Government of Wales Act 1998. It will do just as she says—drive up local standards across Wales in certain areas. At the same time, CHAI will be in operation in certain clinical areas, doing its cross-border work.

Let me gently remind the Committee that, in Wales, health is a devolved matter. The National Assembly is responsible for the delivery of healthcare services in Wales. It should set its own healthcare standards; it should reflect the social and medical demography; it should involve its clinicians, voluntary bodies and patients in the way in which it knows will work best, because its history and geography are different. In exactly the same way as the Secretary of State would expect to set healthcare standards with all the conditions that my noble friend discussed, so does the National Assembly expect to set them in Wales.

In would be unreasonable in the future for CHAI simply to impose its own standards across Wales as it will be developing them in England. I do not want to extend this debate, in view of the hour, and I hope that the noble Earl will not oppose the Question that the clause should stand part of the Bill.

Earl Howe

Perhaps I could wrap up this short debate by thanking all those who have taken part. It has been illuminating, and I am particularly grateful to both noble Baronesses who have spoken from the Cross Benches for teasing out some of the finer points of these issues.

Yes, the Minister is quite right—health is a devolved matter to Wales. I am not seeking to turn the clock back. The Welsh Assembly is responsible for the delivery of healthcare in Wales and the prioritisation of services. If it chooses, it is entitled to set targets.

I am in no way advocating the imposition of English standards on Welsh clinicians and Welsh patients. I would not dream of such a thing—it would be patronising in the extreme. However, I am in favour of a collaborative, nationwide approach to the setting of standards. That is a desirable aim for both English and Welsh patients and for those who administer the treatment. It is not heresy to propose that CHAI and clinicians on both sides of the border should agree to what standards the NHS should work. That leaves entirely open the question of implementation criteria and prioritisation and all the other things that I have mentioned.

Baroness Andrews

I remind the noble Earl that Clause 141 requires the Assembly and CHAI to co-operate with each other, so there is a beacon of hope in the Bill.

Earl Howe

I am grateful to the Minister for drawing the Committee's attention to that clause. Let us hope that it is carried aloft by those tasked with this tremendously important matter.

Clause 46 agreed to.

Clause 47 [Introductory]:

Baroness Noakes moved Amendment No. 269: Page 17, line 17, leave out subsection (1). The noble Baroness said: On behalf of my noble friend Lord Peyton, and at his specific request, I move Amendment No. 269. I shall speak also to our amendment, Amendment No. 373, standing in my name and that of my noble friend Lord Howe. Like my noble friend Lord Howe, I cannot pretend to rise to the oratorical heights of my noble friend Lord Peyton in moving the amendment, but I hope that I do not let him down too badly. He will certainly let me know if I do.

Amendment No. 269 proposes the deletion of Clause 47(1) and, with that, the so-called "general function" of CHAI to encourage, improvement in the provision of health care by and for NHS bodies". CHAI has been set up, as its title informs us, to audit and inspect the NHS. It is really asking too much of such an organisation to have as its "general function"—by which I assume is meant an overriding or exceedingly important function—the improvement of healthcare. Like many organisations that involve audit and inspection, we will expect CHAI to produce from time to time illuminating insights into how healthcare is delivered. Those insights may indicate how healthcare could be improved. In time, that could lead to improvements in healthcare. But CHAI has no powers beyond its reporting powers, and I believe that we ask too much of CHAI to say that its important or general function is to encourage the improvement of healthcare. I am sure that it will not discourage the improvement of healthcare, but that is quite a different matter from having a key responsibility to improve it.

Amendment No. 373 in this group adds elderly people to the children who are specified as a particular focus of CHAI in Clauses 47 and 101. If children are to be specified, the exclusion of other vulnerable groups from special mention leads the reader of the Bill to believe that they are less important. We seriously doubt the need positively to specify particular patient groups in either of the clauses.

The inclusion of children, though worthy, seems likely to owe more to the issue of the moment, following the Victoria Climbié inquiry, than to rational analysis. Over time, different groups will be perceived as more or less worthy of special focus. That could be safely left to CHAI, but if the Government are determined to include one vulnerable group, we believe that, as a minimum, elderly people must also be included. Elderly people comprise a large group of people with many and varied special needs, and they can be at least as vulnerable as the young. I beg to move.

Baroness Barker

I shall speak to Amendment No. 270 and all those that follow in the group. To a large extent, I echo the comments of the noble Baroness, Lady Noakes. We believe that it is somewhat invidious to have named one particular group in the Bill. It is particularly strange to have done so, given that older people comprise the largest number of healthcare users.

As regards the other amendments, we believe that a key function of CHAI will be to inspect the provision on the availability of information about healthcare. Time and again in surveys consumers of healthcare mention their concern about access to information on local healthcare services. Throughout the passage of this Bill noble Lords and Members of another place have spoken about the Office of Fair Trading report on dentistry and the great difficulties people have knowing where to get information about local dental services. Guides to local NHS services were supposed to be distributed to every household last October and yet surveys show that people do not recall having received them. Information about the availability of healthcare is of fundamental importance. Therefore, we believe that it should come within the functions of CHAI.

In Amendment No. 275 I return to my favourite subject of ethical practice. We believe that it should be an explicit function of CHAI to have and to provide information about ethical practice within healthcare.

However, I wish to concentrate on Amendment No. 277 which governs the extent to which it will be possible for CHAI to provide information, or to inspect the extent to which information is made available about the continuing healthcare responsibilities of the NHS.

I hate to tackle the Minister as he did not have the joy of being the Minister during the passage of the delayed discharge Act but during that Act's passage we spent a very, very long time discussing this matter. We did so in the wake of the ombudsman's report which was highly critical of the Department of Health's guidance on information about the continuing healthcare duties of the Department of Health. Since that time all strategic health authorities are supposed to have instigated a review of the information made available by agencies, and particularly to analyse the extent to which it is compliant with the Coughlan judgment. There remains a great deal of uncertainty about the clarity of the information and, indeed, the clarity of the guidance which is available. We believe that that is a critical function for CHAI to inspect, involving, as it does, one of the biggest groups of users of services.

The Minister will know that an immense amount of work is being done on the implementation of the No Secrets guidance regarding good practice in the protection of vulnerable adults. In the light of that we believe that it is wrong not to mention vulnerable adults, people with learning disabilities and people with mental health problems on the face of the Bill. The amendments seek to correct that.

Baroness Howarth of Breckland

I wish to address Clause 47(2)(d). I wish to retain that provision in the Bill. I have had a long career working with the whole range of vulnerable groups, including many who are invisible when in hospital. I have been involved with an organisation which seeks to promote the recruitment of specialist nurses to help disabled people entering hospital as their needs are not always recognised.

I wish to have children firmly included on the face of the Bill because they are the most invisible group in a hospital setting. Children and young people become lost on general wards as there is still not a great deal of specialist provision for them. That does not mean that I do not believe that there are vast numbers of other people with rights. However, the fact that most of the users of hospital services are elderly people gives them a huge advantage in terms of the acknowledgement and attention that they receive whereas children become lost in such a setting.

Lord Warner

I shall quickly go through the amendments, most of which have slightly different purposes. Amendment No. 269 would have the perverse effect of removing CHAI's duty of encouraging improvement in the provision of healthcare by and for NHS bodies. Given that CHAI is being established to help drive out poor performance, improve further the quality of care and continue to raise the quality of healthcare standards, it could be argued that CHAI's duty to encourage improvement is clearly implicit. However, we believe that subsection (1) should remain as a clear signal to healthcare providers, patients and the public of CHAI's primary purpose.

Amendment No. 277 would place a duty on CHAI to ensure that the NHS fully discharges its legal functions under the 1977 Act to provide continuing healthcare. The noble Baroness may have overlooked the fact that a duty of care was introduced by the Health Act 1999. A consequence of that duty is that NHS bodies are already under an obligation to put and keep in place arrangements to monitor and improve the quality of healthcare that they provide to all individuals. Thereby, statutory force is given to the introduction of clinical governance within the NHS. I understand the noble Baroness's concerns, but we do not think that Amendment No. 277 is necessary either.

Amendments Nos. 270 and 276 suggest in effect that CHAI should pay particular concern to the availability and quality of information for patients about healthcare. I am pretty sympathetic to those amendments, certainly more so than to some of the others, as I shall make clear. In reviewing the quality of healthcare, CHAI has the power to review the quality of information provided. We fully expect that to be the case.

I accept that there is something special about information in many respects, and I understand the arguments that the noble Baroness has consistently made about the importance of providing information to patients so that they can exercise choice and decisions. I am willing to take those two amendments away and consider the issues and the intention behind them further. We shall see whether we can do something to help in the run-up to Report.

Amendments Nos. 271,272,278,373 and 374 would place CHAI under a duty to have particular regard to the need to safeguard and promote the rights and welfare of older people and other vulnerable patient groups, as Members of the Committee have said. I do not in any way question the importance of the issues that the amendment raises. I obviously have sympathy with those concerned about the vulnerability of older people and certain other adults. However, I feel that we have to draw a line somewhere in listing those patient and service-user groups to which CHAI should pay particular attention. If we were to list each individual group in the Bill, that would begin to undermine the principle that CHAI should have regard to safeguarding and promoting the rights of all patients and service users, including the groups mentioned.

It is also very difficult to define precisely what we mean by vulnerable adults. Some adults may be vulnerable in some contexts but not others. The existing definitions of vulnerable adults in the Care Standards Act 2000 and regulations in the Police Act 1997 are intended to include people who may be vulnerable because of a situation in which they are placed. For example, one area of the definition relates to, an adult to whom personal care is provided in their own home under arrangements made by a domiciliary care agency". That definition may cover many people with disabilities who do not want to be classified as vulnerable in other areas of their lives. We think that there is quite a problem with definition.

I am grateful for the support given by (he noble Baroness, Lady Howarth, on the issue of separating children out as a special case. I would not have expected otherwise, given our joint backgrounds in the area. We have chosen to continue to ensure that the most vulnerable group in society—children, as identified in the Care Standards Act—is covered very specifically. Again, I have to emphasise that singling children out for such attention does not mean that other vulnerable groups will not have their rights and welfare well within the sights of CHAI.

I draw attention to the fact that CHAI has already made clear its intention to do that in its Vision statement in June of this year. That outlines its commitment to promote equal citizenship by ensuring that the well-being and healthcare of vulnerable groups are fully reflected in its assessments and that their rights are safeguarded. Those groups include older people; people with mental illness or learning disabilities; people from areas of social deprivation; or people for whom English is not a first language. In light of the reassurances that I have given, I hope that noble Lords are willing to think again about that issue.

Amendment No. 275 places a duty on CHAI to consider varying degrees of the application of "correct ethical practice". That is a matter for the General Medical Council. I am certain that if the Government had proposed such an amendment, it would have been deemed interference in medical self-regulation, which has a long tradition.

We realise that the system is not perfect and that bad individual cases come to light. However, if CHAI becomes aware of, or suspects, something amiss in the way in which healthcare professionals are behaving, it will be open to it to report that to the appropriate body. Clause 135(2)(g) explicitly provides for CHAI to disclose information to another body for the purpose of its statutory function of safeguarding patients. Those bodies would include the likes of the GMC. It will then be for the appropriate body to investigate further. Therefore, we do not believe that the amendment is appropriate.

6.45 p.m.

Baroness Barker

I thank the Minister for his reply on information, which is a neglected but important area of healthcare. Although he said that the fact that children are included in the Bill should not be read as an exclusion of other groups, it has already been interpreted in that way. As an employee of an organisation that works for poor, older people, I have no wish to see children or any other client group put at odds with one another.

If the Minister is to resist attempts to include definitions of groups, might he agree to reconsider our proposal at a previous sitting that the general duty of equality should rest not only with CHAI, but also with CSCI and NHS bodies? That may be a far neater and more elegant way of addressing our genuine fears about different levels of provision for the different groups named in the Bill.

Lord Warner

I am happy to look again at that issue, but I cannot make any promises. As someone who may be classified now as an older person, I certainly do not regard myself as vulnerable.

Baroness Noakes

I know that my noble friend Lord Peyton will read carefully in Hansard the Minister's reply to his Amendment No. 269. My noble friend has indicated to me that he is in earnest about his amendment. Without wishing to pre-empt my noble friend's views, I should warn the Minister that he will almost certainly want to return to the issue on Report.

On the issue of elderly people, children and other vulnerable groups, I was disappointed by the Minister's attitude. The noble Baroness, Lady Howarth, stood up for children as I expected that she would. Children may get lost, but elderly people get very badly treated. They are still a very large and special group. I still have a problem with specifying children, while not specifying other groups who are equally important.

It is not a question of whether or not the current CHI will take this matter into account. I have every confidence that the organisation emerging under Sir Ian Kennedy will be as conscientious as we hope it to be. The real issue is that of visibility over time. If something is not on the face of the Bill, there is an implication that the only important group is children, and I do not accept that. I want to reflect on the matter, and I am afraid that I have to put the Minister on notice that we may well want to return to it on Report. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 270 to 272 not moved.]

Earl Howe moved Amendment No. 273:

Page 17, line 28, at end insert "; and ( ) the clinically appropriate prioritisation of healthcare interventions"

The noble Earl said: Clause 47 is important because it defines what CHAI is being created to do and what its legal functions are to be. I have no difficulty with any of the functions listed in subsection (2). However, I do not believe that they cover the ground fully.

My amendment suggests that CHAI should also be concerned with the clinically appropriate prioritisation of healthcare interventions. At first sight, that may seem unnecessary. We know, and I am sure we all accept, that doctors have a duty to prioritise treatment for their patients on the basis of clinical need. However, over the past few years, we have seen a distortion of that process, brought about by politically inspired target-setting. There is no doubt at all that these centrally imposed targets, especially those relating to waiting times, have affected the scheduling of elective and non-emergency treatments.

It was instructive in July to hear Michael Barber, head of the Prime Minister's Delivery Unit, concede to the Select Committee on Public Administration in another place that poorly designed goals, can lead people to put effort into the wrong thing". He also said that targets can work,

"to the detriment of all other activities".

That, I suspect, is as close as we are going to get to an apology from the top of government for inappropriate target-setting over the past few years. Yet some of the Government's key targets are still in place. As the BMA pointed out, a maximum waiting time for cancer diagnosis may well prompt excessive referrals. It is characteristic of many of these targets that they are about process rather than outcome.

Centrally imposed targets will not of course be binding on foundation trusts. However, the risk that clinical priorities will be distorted in a foundation trust will still be there—albeit emanating from a rather different quarter. Should it happen that the board of governors contains a powerful and influential element which insists on certain resource allocations that advantage a particular group of patients at the expense of others who are in more urgent need, that should be a matter of concern.

CHAI needs to be alive to the risk of such events and alive to when they happen because they directly affect the care of patients. The proper prioritisation of healthcare is quite distinct from the availability of it and quite distinct again from its quality or effectiveness. I suggest that if CHAI does not include clinical prioritisation as a formal part of its remit, it will not be doing its best by those who use the health service. I beg to move.

Lord Warner

We have some difficulty with the amendment. Reading it at face value, it would seem to require CHAI to look at whether doctors made the right decisions in their approach to, and treatment of, patients. That is, of course, a matter for the General Medical Council and other professional bodies. It rather looks as though the amendment sets up CHAI to second-guess clinical decision-making and, indeed—it could be interpreted as such—to second-guess NICE, which does much work in setting out whether certain interventions and drugs are the most appropriate way to treat particular conditions.

We have some difficulty in trying to interpret the amendment. From what the noble Earl said, I was not sure that he had reassured me on those particular concerns. We do not think that there is any question of CHAI being unable to comment on either national standards or, indeed, the way things are working out in practice in the health service. The provisions in the Bill are framed so as to set up CHAI to carry out a proper monitoring role and report on what it sees happening in an independent way at the NHS front line.

I suggest that any concerns the noble Earl has are covered within the framework we set up for CHAI. If the inspectorate thought that there was a distortion of suitable clinical priorities on a widespread basis—I do not believe that to be true—it would be possible for CHAI to say so. Areas such as national service frameworks and how they are working are well within the remit of CHAI. There is nothing to stop CHAI— indeed, that is its purpose—finding out how such things work in practice, reporting on them and telling the story as it sees it. Indeed, that is why it is being set up.

I believe that the concerns of the noble Earl may be a little wide of the mark. Certainly, for the reasons I have sought to outline, we do not think that the amendment is appropriate.

Earl Howe

If it is the case that my amendment is unnecessary, as the Minister's latter remarks seem to suggest, I am pleased. However, I think he was being a touch disingenuous. I would not have expected him to acknowledge forthrightly that there are certain political targets that have been imposed on the NHS that have had a distorting effect on clinical prioritisation, but that is my firm belief.

We are not talking of doctors underperforming but of managerial override of what doctors want to do. Managerial override is not an issue for the GMC. Most certainly, I would have thought, it is an issue for CHAI. I will read carefully what the Minister said. I hope that the Bill does contain scope for CHAI to highlight such events, should they occur. I have no regrets about raising the topic under this amendment. I shall again consider the matter. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 274 to 278 A not moved.]

Clause 47 agreed to.

Clause 48 [Nationalperformance data]:

Baroness Barker

moved Amendment No. 279: Page 17, line 30, leave out "has the function of publishing" and insert "must publish The noble Baroness said: I was heartened earlier on by the Minister's response to our amendments concerning the role of CHAI and information. Amendment No. 279 goes one step further and deals with CHAI's role in relation to data on clinical performance.

The amendment seeks to remove the rather ambiguous and perhaps inelegant phrasing which exists in this clause; that is, has the function of publishing", and states that CHAI must publish data. It is important to state that for two reasons. First, it must be the organisation's basic raison d'etre to do that; to gather such information and to make it publicly available. Secondly, it is important to make sure that this independent body—and I do not propose at this hour to rehearse earlier arguments today about its independence—is the authoritative body which will publish data about healthcare performance, even, I would suggest, when that is inconvenient to Ministers or embarrassing to the Government. I do not think that there can be a greater test of the independence of a public body. I am sure, given the Minister's earlier reassurances this afternoon about its independence, that that should be no problem.

I am not being flippant. One of the many things taught us by the Bristol review was the difficulty of gaining data in the first place and the importance of that data being in the public domain. That has led to improvements in services and trust and public confidence. This is an absolutely essential part of the building of that trust. I therefore hope that the Minister will give a favourable response to the amendment. I beg to move.

7 p.m.

Baroness Howarth of Breckland

I noticed earlier in the afternoon that the noble Lord, Lord Warner, spoke of putting the Government's views in the public arena. I hope that means directly to Parliament. I have two experiences. One is with the Food Standards Agency, which reports directly and is able to make its views known to the public. The other is with the National Care Standards Commission, which makes its views known to the Minister who decides whether the Government will make them known to the public. There is a real difference.

Lord Warner

Clause 48 gives CHAI the function of publishing data in relation to the national performance of healthcare provided by and for NHS bodies. It will be for CHAI to determine what this may entail and how it goes about it.

It may help the Committee if I explain that where a public body is to be given some broad task, it is usual in legislation to confer a "function" on it, rather than to impose a duty, as this amendment proposes. The exception is where it is desired to oblige the body to do a specific task; for example, the duty in Clause 49 to publish an annual review.

The Bill, therefore, gives CHAI a raft of functions including the function of publishing data relating to the provision of healthcare by and for NHS bodies under Clause 48. We would naturally expect CHA] to exercise all of its functions. However, we are trying to leave it to decide how to perform those functions. We have attempted not to be over-restrictive about what that should cover.

I feel that the amendment would tie CHAI's hands, burdening it with a requirement to publish data on all performance rather than in areas which it, as a body, finds would be most beneficial. That would obviously require a great deal of resource, which would need to be diverted from other resources if we moved to this kind of obligation proposed in the amendment.

I do not think that there is anything sinister in giving CHAI a degree of discretion about what it publishes. Some would say that that will enable it to target the material it puts in the public arena in a more effective way in order to highlight major concerns, rather than just becoming a machine, so to speak, to disgorge a large amount of data and performance information without producing the synthesis and analysis which shows those major areas of concern.

Baroness Barker

I thank the Minister for that reply, which I must say is somewhat disappointing. He overstates what we are attempting to do; we are not attempting to tie the hands of the regulator. The amendment does not state how the regulator should discharge that function, simply that it should do so. That seems to me in no way as prescriptive as the Minister made out.

This is of fundamental importance. That body will be independent and with the information and resources that will for many people determine, not least, the exercise of their choice, which is one of the Government's stated fundamental aims in the Bill. There are other reasons as well.

I am always heartened when the noble Baroness, Lady Howarth of Breckland, supports anything that I say. She was dead right about the reporting differences between the Food Standards Agency and the National Care Standards Commission; that was a most helpful intervention. I am pretty disappointed with the Minister's response, and this is yet another matter to which we will return on Report: it is far too important to let it run by. With that, for the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Noakes moved Amendment No. 280:

Page 17, line 31, at end insert "including the publication of data for the purpose of monitoring the performance of the Department of Health against its Public Service Agreements"

The noble Baroness said: The amendment is intended to ensure that CHAI will publish data that are relevant to the appraisal of whether the Department of Health has met its public service agreements (PSAs). The Committee will recall that PSAs are, to use the words of the Chancellor of the Exchequer in 1998, essentially a contract for the renewal of public services".

The theory was that departments must deliver their PSA targets if they are to receive money from the Chancellor to modernise public services. In practice, we know that the Chancellor has been pouring money into health without any regard for PSA targets.

The Department of Health's PSA targets cover a large number of areas and the department's annual report contains a self-appraisal on how well it has done. In practice, the department has often modified the targets or put a gloss on their achievement. Let me take just one example.

Target No. 14 of the 1998 PSA required value for money to improve by at least 3 per cent per annum. The department's annual report stated that it had met the 1998 target because it had met other non-efficiency targets. The truth is that the department had missed the target by a mile. On my calculation, based on data underpinning the department's latest annual report, the NHS had negative efficiency—that is, a loss of efficiency; not a gain—of 8 per cent between 1998 and 2001.

There is more to value for money than activity-related productivity, but no objective data have been produced to explain how a value for money gain of 3 per cent per annum was achieved despite an activity-related efficiency loss of about 2.5 per cent per annum. We can have no more confidence about the current target of a mere 2 per cent per annum value-for-money gain.

Because there is no policeman auditing or inspecting the department's achievements—or lack of them— those issues do not surface. Doubtless the Chancellor will conspire to spin PSAs as successful because the Government cannot bear to admit that their policies are failing, as they surely are.

Our amendment would ensure that CHAI will publish data relating to PSA targets, so that a degree of independent judgment would be brought to bear on the Government's achievements against their targets. I beg to move.

Lord Warner

The amendment is totally misplaced. It would be inappropriate for CHAI to review the Secretary of State against his public service agreements, as he is accountable to Parliament; so it is for Parliament to question him about his actions in implementing those agreements. If there is disagreement about how the Secretary of State has behaved over public service agreements, it is for Parliament to call him to account; it is not for CHAI to monitor the performance of public service agreements. It is always open to CHAI, should it so wish, to give advice to the Secretary of State, under Clause 53, concerning the relationship between the implementation of the agreements and the provision of healthcare by NHS bodies.

Strategic health authorities also have a key role in performance-managing aspects, such as the reduction of health inequalities, which are part of public service agreements. CHAI will also have a role in reviewing the performance of PCTs and acute trusts in tackling health inequalities. In several areas, specific parts of public service agreements will fall into the territory that CHAI will cover. But CHAI should not have an overarching duty to monitor the Secretary of State's performance against his public service agreements.

Baroness Noakes

Well, what a surprise! The Department of Health does not want to have its performance scrutinised. The amendment refers to CHAI publishing data relevant to the appraisal of whether the Department of Health had met its public service agreements. It is not about CHAI calling the Secretary of State to account; nor is it about giving an inappropriate role to a public body. Under the amendment, CHAI would have access of a very particular and privileged nature to the data that would enable judgments to be made.

The Minister talked about strategic health authorities having a role in the delivery of some of the targets related to health equality. That is absolutely fine. CHAI would be the best placed body to have access to the data held within the strategic health authorities on the achievement of their targets. It would be best placed to say whether the data were good or bad.

The Minister cannot realistically argue that the Department of Health and the Secretary of State for Health can continue to escape with choosing the terms by which their own performance will be judged. It is a very serious issue. I shall not press the amendment now, but 1 give notice that I shall return to it on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 280A not moved.]

Clause 48 agreed to.

Clause 49 [Annual reviews]:

Baroness Noakes moved Amendment No. 281: Page 17, line 35, after "English" insert "and Welsh The noble Baroness said: In moving Amendment No. 281, I shall speak to the other amendments in this group. It is a long group of amendments, and I am afraid that I shall take several minutes of the Committee's time to cover various aspects of the position in Wales and related cross-border issues. We have touched on some of them, but the amendments address slightly different aspects of the Welsh issue.

The amendments fall into two main groups. Amendments Nos. 281 to 306 together would ensure that CHAI is the inspection body for both England and Wales. Proposals in the Bill to limit CHAI to England are unacceptable, because in Wales reviews and inspections are to be carried out by the Assembly; that is, politicians in Wales. It is not only wrong in principle for the review and investigation functions in Wales to be carried out by a politically controlled organisation, it is also inefficient. How can Wales, with its much smaller health budget, begin to amass the competence and expertise that will be grown in CHAI? Why do the Government want to expose the Welsh healthcare system to a system of inspection that, by definition, will struggle compared with CHAI?

When this matter was debated in Committee in another place, the Minister failed to produce any example of Welsh diseases being different from those in England or how the provision of healthcare in each country would be different. He certainly failed to produce an example of how patient care would in any way be enhanced by separate inspection arrangements. Devolution was not meant to mean substandard.

The noble Baroness, Lady Finlay, who is unfortunately not in her place, referred to different incidences of disease, but that is a different matter from different diseases and different patient care solutions. The noble Baroness, Lady Andrews, tried to convince us that Wales was different when she spoke to the earlier group of amendments, but I was not convinced that they were not distinctions without a difference.

Amendment No. 302ZA is a probing amendment to try to discover what CHAI's responsibilities are for healthcare in Wales. Clause 53 gives CHAI a number of functions of keeping both the Secretary of State and the Assembly informed about healthcare. However, as we have seen, the Bill is at pains to ensure that CHAI has very little remit in Wales. Our amendment makes it clear that CHAI should report only on things, that it has looked at in Wales. Without something like this, it is difficult to see how CHAI could be expected to comply with Clause 53.

The second group of amendments—Amendments Nos. 326 to 331 and Amendment No. 334—concern the interface between the Assembly and English NHS bodies. The amendments are predicated on the Government sticking to the Assembly keeping inspection functions and the focus of the amendments is alternative ways of keeping the Assembly out of the NHS in England. Amendment No. 326 is the most modest of the group. It amends Clause 68( I) so that the Assembly's function of reviews will be carried out, where appropriate in conjunction with the CHAI". Amendment No. 331 is similar and states that the Assembly may request CHAI to carry out a report on an English body.

Amendment No. 327 goes further and makes it a positive duty of the Assembly to request CHAI to do work that relates to English bodies. Amendment No. 330 restricts the Assembly's inspection rights to Welsh bodies only, coupled with Amendment No. 334, which removes the rights of the Assembly to enter premises outside Wales.

We incline towards Amendment No. 327, because we believe that hospitals should be subject to inspection that is free from politics. That has to mean CHAI rather than the Assembly, which is no more than a bunch of politicians. It would be a retrograde step to let politicians directly into the English NHS, even if devolution has given them a free hand in Wales.

The English hospitals that the Assembly might choose to review are already subject to review by CHAI. Indeed, CHAI would have the major inspection interest because of the dominance of English patients in English hospitals. Unless we do something positive in this Bill, English hospitals could become the subject of two inspections directed at the same issue. There is a duty to co-operate in Clause 141, which is better than nothing, but it does not take the Assembly clearly out of English hospitals.

I will now touch briefly on Amendments Nos. 328 and 329 which concern how the Assembly should conduct its functions when there are English interests at stake. Amendment No. 328 requires the Assembly to take into account the impact of its decisions on healthcare in areas of England that border Wales. Let us suppose that the Assembly decided to review coronary care provision with the needs of only Welsh patients in mind. Its decisions could have a big impact on English hospitals and English patients and so it needs to consider cross-border implications in its reviews.

Amendment No. 329 makes it clear that, if the Assembly is reviewing an English body, it must judge it against the standards set by the Secretary of State under Clause 45 and not the standards set for Welsh bodies under Clause 46—my noble friend has already referred to that issue. It cannot be right that English hospitals must follow both Welsh and English standards if they are different. That is burdensome for doctors and nurses who would have to inquire as to whether their patients were funded by England or Wales, which is simply nonsense. That is not the way that healthcare should develop. Much of what I have said applies also to the Assembly, CSCI and English local authorities. Amendments Nos. 361 and 399 repeat some of the CHAI amendments for CSCI. The principles are the same. I beg to move.

Baroness Andrews

This is a reprise of our earlier debate, although I take the noble Baroness's point that she has raised some different issues.

I shall take two points that the noble Baroness made right at the beginning. She deplored what she saw flowing from the function of the Assembly as the inspectorate in Wales. She said that it was a case of politicians doing the job of inspectors. I stress the independence of Health Inspectorate Wales, which is to be put in place under the Government of Wales Act 1998.I shall not rehearse the arguments for a devolved Welsh health policy; we have gone over it a lot today.

The new health inspectorate in Wales will enjoy exactly the same independence as other inspectorates established by the Assembly. In Wales, we already have a fine schools inspectorate, Estyn, which is completely free of the Assembly, and there has never been any criticism of its independence. The new inspectorate will be in that tradition. Likewise, the Social Services Inspectorate for Wales and the Care Standards Inspectorate for Wales have already proved their independence.

The independence of HIW will be clearly defined in the same way. The head will be appointed through existing senior Civil Service appointment procedures. There will be complete editorial control and the right to publish. The reports will be submitted to the Assembly's Minister for Health and Social Services and commissioned by the Assembly. There will be accountability to a senior Assembly director. There will be rights of independent access, an independent complaints procedure and so on. I hope that the noble Baroness is convinced by that, as the Assembly is convinced, and by the fact that the other inspectorates work extremely well in Wales and perform their functions independently.

The noble Baroness's second group of amendments contains some contradictory alternatives to the measures in the Bill. As noble Lords have not given notice of an intention to oppose the Question that Clause 68 stand part, I assume that the amendments were exploratory. They go from one extreme to the other: at one extreme, the amendments extend CHAI's review and investigation function to Wales and, in so doing, duplicate the power in Clause 68 for the Assembly to review services commissioned for the people of Wales under the standards set by the Assembly. We have had that debate, and we have explained why it is important.

The remaining amendments put a fence around Wales, leaving the Assembly to review services in Wales but requiring it to ask CHAI to fulfil the Assembly's review functions in respect of English providers of services to Welsh patients. At their most permissive, they simply allow the Assembly to invite CHAI to exercise its functions in England.

We have dealt with the more prescriptive approach. I have made the case for Health Inspectorate Wales. I hope that I have shown that it will be independent— necessarily so, as it will be locally based and sensitive to the different organisational structures and healthcare needs in Wales. The noble Baroness, Lady Finlay of Llandaff, gave us what I am sure we all agree was an astounding set of examples of why Welsh healthcare was different. The concentrations of disease are different; the morbidity patterns are different; the mortality patterns are different; and the rates of occupational disease are different. Wales needs its own sensitive organisation to deal with that.

I reassure the Committee that we are not saying that the independent inspectorate will be introspective or isolationist in its reporting. It will co-operate with other bodies operating in Wales, including CHAI and the social services inspectorate. I have already referred to Clause 141, which imposes the duty of co-operation. It is more than a start. It will be a duty that will be implemented and observed and it is a very important safeguard.

In relation to other issues raised—including cross-border issues—the Assembly has overall responsibility to ensure that appropriate healthcare is provided. A great deal of that is done under commissioning arrangements. The Assembly therefore needs the powers, as well as the functions, to review healthcare. Clause 68 gives the Assembly those powers. They are identical to those provided elsewhere in the Bill for CHAI, which will carry out reviews and so forth.

The problem with Amendment No. 334 is that it would make the exercise of the power impossible. It would deny the Assembly's health inspectorate access to premises in England. Let me be clear: Clause 68 is not a carte blanche. It does not mean that HIW will wander at will across the English countryside inspecting wherever it chooses. It is a closely constrained power to review or investigate where services are commissioned.

The border arrangements are based on years of experience. I shall not bore the Committee with the tale of my tonsillectomy when I was four years old. However, I can assure Members of the Committee that it was a very fine example of cross-border commissioning at the time, which can have only improved since then.

It is also important to bear in mind that HIW and CHAI will not arrive at the same hospital to do the same inspection in the same way. Obviously, they will work out who has done an inspection, whether an inspection is required in the near future, and who will carry out it out. There will be the dialogue that presently exists to ensure that those arrangements are sensible. The importance of co-operation is already recognised in the Bill. Clause 121 allows CHAI and CSCI to assist the Assembly in the conduct of their general functions. On the basis of those explanations, I hope we can agree that the amendments are unnecessary.

Amendment No. 302ZA is neither needed nor desirable. It would limit CHAI's ability to inform the Secretary of State or the Assembly about the provision of healthcare in Wales, except for national matters which it has reviewed or investigated itself. I cannot believe that this is in the interests of the NHS or patients because CHAI will have a focus on disseminating information. It will also be under a duty to co-operate and it must be able to access information that is necessary to undertake its functions. If it were denied opportunities to access relevant materials, it would impair and reduce its own function. Therefore, we know that there will be co-operation and sharing of information, not just with HIW, but with other bodies. It will be two-way traffic. CHAI will be in a position to add value to reviews—both those that it conducts and those conducted by HIW. It will not work in a vacuum, nor should the other bodies.

The reason that the Bill places duties on CHAI and others to co-operate is to ensure that the best information is available as widely as possible. As the noble Baroness rightly says, much of the work of CHAI and HIW will be of interest and value on both sides of the Welsh border. It would be wrong to constrain either body in the manner proposed in the amendment. With that explanation, I hope that the noble Baroness will withdraw her amendment.

Baroness Noakes

As ever, I thank the noble Baroness for that comprehensive reply. This is a complex group of amendments. I shall read her necessarily complex reply in Hansard before deciding how to move forward. The noble Baroness spoke a great deal about the health inspection unit of Wales. However, the Act states that the Assembly should have those functions. That is what is so offensive in relation to access to English hospitals. The Act states that it should be the Assembly. If the Act said something else, it would be a great deal less offensive. Having politicians coming into the English NHS is simply not right. If Wales wants to do it under devolution, so be it. But that should not happen in England.

I also raised the point about efficiency. It is not efficient to have a second unit. I carefully read the regulatory impact assessment which stated that in respect of Wales having a separate inspection unit there had been no assessment of set-up costs or running costs. It stated that, it is considered that the overall costs will represent value for money". My response to that is: I ask you. That simply is not a credible statement. It really is not. I believe that the way in which this has been structured may well result in second-rate inspection for Wales.

Much has been made of the differences in regard to Wales, but, although I have great respect for what the noble Baroness—and the noble Baroness, Lady Finlay—said, the issues she raised tell us no more than that there are regional differences around the United Kingdom. I could cite just as many differences in rates of morbidity and so forth as the noble Baroness did for other areas of the country. CHAI will handle regional variations standing on its head.

I wish to make a final comment. One of my honourable friends in another place recently visited the Countess of Chester Hospital. I am sure that the noble Baroness is aware that that hospital is one of those affected to a very significant extent by cross-border issues. The person he met expressed absolute horror at the thought of inspections being carried out by both CHAI and the new healthcare inspection unit for Wales. This is a very serious issue for those trying to deliver healthcare in today's complex environment.

The hour is late and this is not the time to pursue the matter to the bitter end, but I can say to the noble Baroness that we shall return to this issue on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Warner

I beg to move that the House do now resume.

Moved accordingly, and, on Question. Motion agreed to.

House resumed.