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Mr. John Bercow (Buckingham): I think that my hon. Friend will recall that on Second Reading I inquired about the nature of the regulations that will be introduced attendant upon the Bill. Is he satisfied that any regulations on this subject will be subject to the affirmative procedure, and therefore open to hon. Members to debate?

Mr. Hammond: Regulations made in relation to this aspect of the Bill, and to the great majority of the Bill, will be subject to the negative procedure. [Interruption.] While I understand that my hon. Friend is quite naturally disappointed about that, I have to tell him that it gets worse.

In the next group of amendments, we shall be examining a subject on which significant material will be introduced by Ministers, not in the form of regulation subject to either the affirmative or the negative procedure, but in the form of documents that will not be subject to any form of parliamentary scrutiny. I hope that my hon. Friend will be in the Chamber for that debate, when he will be able to explore that issue a little more fully.

In Committee, concerns were raised about the powers that the National Care Standards Commission will have to obtain information from a registered person. The Bill does not appear to include any exclusion for information that a registered person is gathering in contemplation of an appeal against a decision to deregister under the procedures in the Bill. I raised that issue with the Minister who, to paraphrase his response, agreed that it would not be acceptable for the commission to seek to sequester the evidence that an individual intended to produce to an appeal tribunal merely because it would be expedient for the commission to do so. Of course it would always be expedient to have sight of an opponent's intended evidence in any proceedings.

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The Minister made it clear that he did not contemplate such wide-ranging use of the power, but nothing in the Bill would prevent such action. Perhaps the Minister will prevent it through regulation, but I am certain that the hon. Member for Sutton and Cheam (Mr. Burstow) had such issues in mind when he framed his amendment. I am sure that he will wish to pursue the argument further, if he is fortunate enough to catch your eye, Mr. Deputy Speaker.

Amendment No. 96, tabled by myself, addresses clause 44, which deals with the power of entry of inspectors. The issue at stake depends on the interpretation of the term in the clause about

premises which are used . . . by a local authority in its discharge of relevant functions.

Relevant functions are defined as functions of fostering and adoption and the clause gives powers of entry to premises that are used in that connection. If that means a power of entry to the town hall to have a look in the filing cabinet, at any time of the day or night and without notice--although we might have practical issues to raise--nobody would have a problem in principle with inspectors inspecting the premises of a public authority to ensure that records are in order. However, the advice that we received before the Committee debate on the subject was that it is not clear from the Bill's wording that the term does not include the private dwelling house of a foster parent who fosters a child for the local authority. Fostering is a relevant function and the local authority is procuring the discharge of that function. It is at least arguable that the private dwelling house of the foster carer is a premises being used in the discharge of that relevant function. I return to the issue today because the Minister sought to deal with the concerns during the debate.

Dr. Peter Brand (Isle of Wight): Does the hon. Gentleman believe that no powers of entry should be granted for the private dwellings of foster parents? Under existing arrangements and for the purpose of child protection, surely it is important that inspections can be made.

4.30 pm

Mr. Hammond: The hon. Gentleman is right. As he says, inspections can be made under existing legislation and will continue to be possible. If he will bear with me for a moment, I shall come to that point.

Let me quote from an exchange in Standing Committee. I said to the Minister:

My reading of the Bill was that the reference in subsection (1)(b) to premises used by a local authority in the discharge of its relevant functions would include the private home of a foster carer, where a child is being fostered as part of the discharge of the local authority's functions. Will the Minister say whether that is correct?

The Minister replied:

Other amendments are coming up that will allow us to discuss that. There will be an opportunity for National Care Standards Commission inspectors to have access to the homes of private foster carers, because that is entirely appropriate.

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I then asked the Minister the same question again:


Will the Minister answer my specific question? Does the reference in subsection (1)(b) to premises used by a local authority for the discharge of its relevant functions include a private home in which a child is fostered?

The Minister answered

My advice is that it does not include the private homes of foster carers.--[Official Report, Standing Committee G, 22 June 2000; c. 428-29.]

I have got to know the Minister quite well during the progress of this Bill and others. When he prefaces a remark by saying, "My advice is", that suggests that he has just a little doubt in his own mind, as when he is quite clear about something he is usually robust in saying so. Apparently, there is something of a contradiction between those two statements. The Minister said that there would be an opportunity for National Care Standards Commission inspectors to have access, but clearly that opportunity will not occur under clause 44. We need to hear from the Minister where it is stated in the Bill that National Care Standards Commission inspectors will have access to the private dwellings of foster parents.

To answer the hon. Member for Isle of Wight (Dr. Brand), of course local authorities, as part of their contracting process, may require access to the private dwellings of foster carers. They may want to secure that access for National Care Standards Commission inspectors. I have no problem with that as it would be a contractual matter, and issues such as time of access and how much notice needs to be given could be agreed between the parties to the contract. That is quite distinct from a statutory power of entry.

The amendment seeks to clarify what I think the Minister told me in Committee--that a private dwelling is specifically excluded from the definition of premises used by a local authority in its discharge of relevant functions. We believe that there is an important distinction to be drawn between the domestic dwelling of a private individual and premises such as the offices of a local authority.

In addition, again referring to what the hon. Member for Isle of Wight said, there will still be powers of entry in certain circumstances--for example, to protect the safety of children under the Children Act 1989, although that power would probably not be exercisable by National Care Standards Commission staff. So, both through contracting and through the existing legislation for the protection of children, there would be access, but I am still baffled by the Minister's reference in Committee to the right of National Care Standards Commission inspectors to have access to private dwellings, and I look forward to some clarification on that point.

Amendment No. 3, in my name and that of my hon. Friend the Member for Meriden (Mrs. Spelman), deals with the inspection of independent acute health care provision. This matter considerably exercised my noble Friends and others when the Bill was being considered in another place. I cannot speak for my noble Friends and other noble Lords as to how they might proceed when the Bill returns to them stripped of the provisions that they inserted on inspection of the independent acute health care sector.

The Bill originally contained provisions that would have made the Commission for Health Improvement responsible for inspection, registration and regulation

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of the independent health care sector and the NHS. The Government have advanced some persuasive and largely pragmatic arguments why the commission would not be appropriate for the task. They said that it was designed with a different purpose in mind, and to work in the context of a managed service--the NHS--rather than in an independent system that requires arm's-length regulation.

The debates on the matter have caused much rethinking on the issue by hon. Members of all parties. However, it is clear that the Government oppose the use of the Commission for Health Improvement as a single regulatory body for both independent and NHS provision. When Conservative peers pressed for that, they were keen to draw attention to the advantages--a level playing field and a clear and even-handed regulatory system that would ensure that patients were treated in accordance with appropriate and properly policed standards. That would be the case wherever they were treated and whoever was paying for the treatment.

It is becoming increasingly ludicrous to distinguish between the private and NHS sectors. The Government have made clear their intention to use private-sector providers more regularly and widely in the provision of care to NHS patients. The Government tabled a new clause in Committee to allow cross-contracting between the Commission for Health Improvement and the National Care Standards Commission, to avoid the absurdity of double inspection, under which beds are inspected separately according to whether they contain NHS or private patients.

One anomaly remains, however. Many private beds remain in the NHS, and they will still be inspected by the Commission for Health Improvement, rather than by the National Care Standards Commission. The independent acute provision sector will be regulated and registered, but its largest competitor--the NHS pay beds service--will not.

Our preference would be for a single regulatory mechanism covering all sectors, but the Government will not countenance that. The independent sector and other observers have described the problems that they foresee, and we propose that two separate committees and directorates should be established in the National Care Standards Commission. Each would be led by a dedicated commissioner, who would be the figurehead responsible for, respectively, independent acute health care and for nursing and care homes. That recognition would give clear status to the importance of those two strands.

The commission is a multi-functional body. We are dealing with two areas in which, by definition and by circumstance, large elements of the total provision come from the independent sector.

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