Community Care (Delayed Discharges etc.) Bill

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Mr. Baron: It is not disputed that in the majority of cases, intermediate care can be accommodated within the six-week period. The purpose of amendment No. 51 is to recognise the fact that not all intermediate care stops after six weeks. That should be reflected in the Bill, particularly in respect of accommodation.

Jacqui Smith: I began to identify some flexibility when I was replying to the hon. Member for Sutton and Cheam. I repeat that if a patient needed six and a half weeks' care, we would expect social services to use common sense to ensure that those needs were put centre stage. Under section 21 of the National Assistance Act 1948, local authorities may provide accommodation—without applying the means test—for eight weeks from entry to accommodation, so it is legally possible for there to be discretion about the six-week period.

The other reason why it is appropriate to focus as we do and to apply the limits that we have specified, is that we have to be mindful of the financial impact of our proposals. The reforms will be focused and effective, but financially responsible. The six-week period makes sense on the grounds both of good practice and of ensuring that intermediate care is used to promote the independence that we want it to promote, as well as because of our responsibility to ensure that public resources are sensibly used—and it is backed up by survey evidence. I hope that the hon. Gentleman will not feel that he has to push his amendment.

Mr. Burstow: I am grateful to the Minister for that further information, particularly for sharing the results of the survey. The results of that survey, rather than

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supporting her contention that there is no need to go beyond six weeks, support our argument that the Bill should incorporate the degree of flexibility that we seek. We are not talking about people who suddenly decide to stay indefinitely in intermediate care—that situation can be dealt with under clause 11—so I am not convinced that we should withdraw the amendment. I urge the Committee to support it.

4.15 pm

Mr. Baron: I, too, have reservations about the Minister's response. We are proposing an element of flexibility in the Bill, to ensure that the provision of free services and the provision of accommodation are married up. That is logical, sensible, and in the best interests of the patient. If it is legally possible anyway, why can it not be incorporated in the Bill? There is a welter of regulations behind the Bill, but the message that it conveys is important. For those reasons, I would press for a division.

Question put, That the amendment be made:—

The Committee divided: Ayes 7, Noes 8.

Division No. 16]

Baron, Mr. John Burns, Mr. Simon Burstow, Mr. Paul Calton, Mrs. Patsy
Gillan, Mrs. Cheryl Waterson, Mr. Nigel Young, Sir George

Blackman, Mrs. Liz Fitzpatrick, Jim Linton, Martin Love, Mr. Andrew
Moffatt, Laura Munn, Ms Meg Smith, Jacqui Starkey, Dr. Phyllis

Question accordingly negatived.

Amendment proposed, No. 14, in

    clause 11, page 7, line 9, leave out subsection (5) and insert—

    '(5)Any powers to make regulations of this kind referred to in this section shall be exercisable by statutory instrument, and any such instrument shall not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.'.—[Mr. Baron.]

The Committee divided: Ayes 7, Noes 8.

Division No. 17]

Baron, Mr. John Burns, Mr. Simon Burstow, Mr. Paul Calton, Mrs. Patsy
Gillan, Mrs. Cheryl Waterson, Mr. Nigel Young, Sir George

Blackman, Mrs. Liz Fitzpatrick, Jim Linton, Martin Love, Mr. Andrew
Moffatt, Laura Munn, Ms Meg Smith, Jacqui Starkey, Dr. Phyllis

Question accordingly negatived.

Mr. Burns: I beg to move amendment No. 15, in

    clause 12, page 7, line 39, leave out subsection (6) and insert—

    '(6) Any powers to make regulations of this kind referred to in this section shall be exercisable by statutory instrument, and any such instrument shall not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.'.

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We have already effectively had this debate on amendments Nos. 13 and 14, so I shall not detain the Committee long. Many of the issues that were raised this morning are equally relevant now. The amendment would deal with the regulatory powers of the Government in part 2, which covers clause 12, dealing with the free provision of community care services. This is a highly complex and difficult issue. If it is not handled properly, there will be great scope for confusion, misunderstanding and disputes. It is unwise of the Government to try to flesh out the nuts and bolts of their intentions through regulations. Again, we have not seen those regulations, although the Minister has helpfully sought at times to explain how the Government expect the clause to work if the Bill reaches the statute book. Despite her best intentions, however, that is not quite the same as giving us draft regulations that tell us exactly what the Government propose.

The Minister said that she hoped to introduce some regulations before Report, which is a step forward from the position this morning. I assume that that helpful indication will apply equally to regulations under this clause. That would be a step forward because it would make the Government's proposals clearer. However, that still does not get round the problem, which several hon. Members described so eloquently this morning, that the Government's approach is wrong. We are not happy about the Government using secondary legislation, and as we said this morning, the amount that they use to flesh out their proposals has risen inexorably.

Mrs. Gillan: I do not want to lead my hon. Friend into a circular argument, but I would like to hear his view on the Minister's comment that regulations would be introduced by Report. At first sight that appears helpful, but it actually means that debate on the regulations will be limited by the time constraints that the Government's guillotine motions impose on Report and on Third Reading. Had the regulations been introduced earlier, we could at least have extended the Committee's deliberations and scrutinised the details. That will not happen under the proposed negative resolution procedure.

Mr. Burns: My hon. Friend has rightly gone to the heart of the disadvantages of guillotining—there is no better word for it—the debate both in Committee and on the Floor of the House. As she says, that will cause us problems on Report. We will, I hope, have to consider many important amendments to improve the Bill, particularly part 1, which we are against, root and branch. However, under the new rules we shall not have adequate time to express our concerns.

I want to pick up one other point, because I do not want to do the Minister a disservice. She did not say that we would have draft regulations before Report, and I should point that out before there is any misunderstanding. She said that we would have briefings on what she expected to be in the regulations. I am afraid that I was as guilty as other hon. Members in wrongly attributing to her a commitment on draft regulations. If only she had given such a commitment.

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Mrs. Gillan: Does my hon. Friend think that that is the way to carry out Government business? Does he agree that it is a rather shabby way of conducting Government business to put important aspects of the Bill in secondary legislation? Those regulations will not be available for scrutiny during the course of proceedings on the Bill, and nor will they available for scrutiny by ordinary hon. Members, because of the mechanism that the Government have chosen.

Mr. Burns: No, I do not think that this is the ideal way to examine legislation. It is the wrong way. My hon. Friend is right; sadly, the governing party's majority has steamrollered the proposals through so that all our debates at all levels are now guillotined. However, Labour Members will rue the day that they did that. It may be advantageous to them in the short term while they are in government, but when they are in opposition they will realise that the powers to hold the Executive to account that have been stripped from the Opposition. The Bill will be adversely affected as a result of those procedures.

That is why the amendment is important. I do not want to rehash the arguments, but you should be aware of some of our grave concerns, Mr. Conway, especially as you did not have the benefit of listening to our debate this morning. It is important that we do not encourage and enshrine in precedent the idea that important regulations and statutory instruments, which are becoming the driving engine of legislation, can be slipped through the House through the negative resolution procedure, given how small a minority of statutory instruments subject to that procedure have the opportunity to be debated in Committee.

The Minister said this morning that there was a period in which a prayer could be made against such statutory instruments. That is all well and true but she knows—I suspect that she knew it before she even said that—that even if we pray against statutory instruments, most will never go on to be debated in Committee. As my hon. Friend the Member for Billericay said, one cannot amend a statutory instrument. If there is something wrong with a statutory instrument, it has to be withdrawn by the Government. That is highly unlikely to happen unless there is some obvious fault in the text—such as that which I notably pointed out in amendment No. 12, which led the Minister generously to accept my amendment.

Alternatively, a Committee could vote a statutory instrument out, but—one has to be realistic—that is almost impossible because the governing party has such a large majority. Also, thanks to the Committee of Selection, the governing party always has the good fortune that the Labour Members who are chosen to scrutinise such legislation have rarely expressed any opposition to it in earlier proceedings on the Floor of the House.

The Minister can say that we do not have to worry about the negative resolution procedure because the system allows us to have a debate in which we can draw attention to the problems, but that is a myth. It sounds good, and may read well on paper, but in the real world that does not happen. That is why I ask her to think again. I am not confident that she will be

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amenable, but I know that she is listening. The amendment is important constitutionally and democratically, and it would lead to improved and enhanced legislation.

As her majority in Redditch is only 2,400, the Minister will probably not be involved by then, but at some point in the not-too distant future her party will be in opposition. It will then realise the damage that it has done to the power to hold the Executive to account. I ask her to be generous, because she, or more likely one of her hon. Friends, may be standing in this Room in a few years' time, making exactly the same speech on a Health Bill—and I will then have to eat my words and reject it.

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Prepared 12 December 2002