Health and Social Care (Community Health and Standards) Bill

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Mr. Lansley: I accept that some functions relate to standards and the like, and we shall discuss those later. Those form part of the structure of the NHS as a whole and are not the functions of the regulator. Perhaps I should be more precise. With regard to the functioning of the trusts, it is clear from clause 3 that the regulator's objectives are simply a reiteration of the Secretary of State's duties.

Mr. Stephen Pound (Ealing, North): The hon. Gentleman is aware that not every person in the room is wholly enamoured of every comma in the Bill. Will not he agree, however, that when the post of regulator was advertised widely in the newspapers last week, the role had inevitably to remain slightly elastic, as the person clearly would be interviewed, and perhaps even appointed, before the Bill became law?

Mr. Lansley: I was not aware that the post of regulator had been advertised.

Mr. Pound: I have a copy if the hon. Gentleman wants it.

Mr. Lansley: I am grateful to the hon. Gentleman, but I am not sure that that bears upon the issue in clause 3. Let us say that the regulator will be in place by October, for the sake of argument. If I were proposing to have a regulator appointed and in place by then, I should certainly consider advertising now. I do not dispute the necessity of preparing for that

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appointment, but that has no bearing on the duties of the regulator. Those are for the Committee to determine and cannot be pre-empted by the nature of an application and interview.

Whatever the existing statutory provisions regarding the duties of the Secretary of State in the matter of NHS trusts that become foundation trusts, we must ensure that the duties of the regulator are properly expressed so that, when in place, the regulator will have the statutory breadth to be able to fulfil his or her functions fully and adequately, without being constrained by clause 3.

Some of my amendments are probing, but I believe that the Government should accept the others. Amendment No. 232 is a probing amendment. At this stage, it might be helpful to recall the 1977 Act, although it would be tedious to quote it at length. Section 1—the Secretary of State's duty as to the health service—states:

    (1) It is the Secretary of State's duty to continue the promotion in England and Wales of a comprehensive health service designed to secure improvement—

    (a) in the physical and mental health of the people of those countries, and

    (b) in the prevention, diagnosis and treatment of illness,

    and for that purpose to provide or secure the effective provision of services in accordance with this Act.

    (2) The services so provided shall be free of charge except in so far as the making and recovery of charges is expressly provided for by or under any enactment, whenever passed.

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That section of the 1977 Act appears to be wide-ranging, given that comprehensive objectives are set out. Secretaries of State can cope with wide-ranging duties, but regulators require detailed knowledge of their objectives. To what extent does the fact that the Secretary of State has a duty to secure improvement of people's physical and mental health and in the prevention of disease, diagnosis and treatment of illness imply that the regulator would already have a duty to promote ''higher clinical standards''? If the Minister says that the first part of amendment No. 232 is clearly embraced, that would be step one and a tick in the box.

The second part of the amendment deals with ''responsiveness to patients''. As far as I can see, section 1 of the 1977 Act does not give the Secretary of State a statutory duty to respond to patients directly, although some interpretations may imply that that is the case. That issue may be dealt with elsewhere in the Bill, but given that it is not included in that section of the 1977 Act, it is not the regulator's duty.

Section 3 of the 1977 Act—concerning services generally—states:

    (1) It is the Secretary of State's duty to provide throughout England and Wales, to such extent as he considers necessary to meet all reasonable requirements—

    (a) hospital accommodation;

    (b) other accommodation for the purpose of any service provided under this Act;

    (c) medical, dental, nursing and ambulance services;

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    (d) such other facilities for the care of expectant and nursing mothers and young children as he considers are appropriate as part of the health service;

    (e) such facilities for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness as he considers are appropriate as part of the health service

    (f) such other services as are required for the diagnosis and treatment of illness.

That section does not suggest responsiveness to patients so much as responsiveness to NHS providers. A regulator must not only be responsive to applications from NHS trusts to become foundation trusts; he or she must have a duty to respond to patients' needs. Can we put a tick in the box to say that the regulator's duty is to respond to patients?

I am sure that the first part of amendment No. 107 is not embraced in the existing duties of the Secretary of State under the 1977 Act. The Bill should ensure that

    ''NHS foundation trusts have the freedom from external constraints needed to enable them to offer health care services which are enhanced in terms of their volume and quality''.

A clear duty already exists to enhance the volume and quality of NHS services, but there is no duty on the Secretary of State to free NHS foundation trusts or other NHS institutions from external constraints to enable them to do so. The concept of deregulation is not built into the Secretary of State's current duties.

Mr. Hutton: The hon. Gentleman makes a good speech, but will he explain what he means by ''external constraints''? For example, external constraints could reasonably include the work of the medical royal colleges and outside regulatory bodies. If he believes that that type of constraint should be covered by this clause, there is clearly a problem with the wording of his amendment.

Mr. Lansley: The Minister is being uncharacteristically literal and narrow. If he reads the amendment, he will see that the freedom from external constraints that is spoken of enables the foundation trust to offer

    ''health care services which are enhanced in terms of their volume and quality''.

Clearly, if the work of the royal colleges forms part of the process by which NHS foundation trusts improve the volume and quality of their health care services, it would not be an external constraint from which they would need to be free.

I freely confess that the drafting of the amendment is not important here; it is the argument that is important. The point is that there is no deregulatory duty laid upon the independent regulator. The Minister may tell the Committee that it is not the intention of the Government to deregulate by the imposition of the independent regulator, but is that not the structure of the legislation? Is it not the intention to create freedom for NHS foundation trusts?

If the intention of the Bill is to create a new structure within which foundation trusts are given the freedom, through localisation of management and the removal of constraints upon managers, to deliver

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effective services, is it not curious that the role of the regulator does not explicitly contain just such a deregulatory duty? It is not in the Bill. Other legislation in other contexts, which we have debated here, does lay a duty of a deregulatory character upon regulators. I have simply phrased it in terms of deregulation to the extent that is consistent with all their other duties to raise the volume and quality of health care services that are being offered. If the principle of the Bill is one of freedom for foundation trusts, why is that principle not included in the Bill as one of the duties?

The latter part of amendment No. 107 has another small but significant purpose, and that is to rephrase clause 3. As it stands, clause 3 states that functions must be exercised

    ''in a manner that is consistent with the performance by the Secretary of State''.

That now becomes a matter of interpretation. It was not part of my argument when we debated clause 2 that there was some conspiracy theory about the independent regulator's functions to be determined by the Secretary of State. That did not form part of my discussion of clause 2, nor was it part of my amendments.

Here, however, the question does arise. Is it, in fact, the case that, because of the structure of the wording of the clause, the independent regulator will be constrained to behave in a way that is consistent with the Secretary of State's past, present or future interpretation of his duties under sections 1, 3 and 51 of the National Health Service Act 1977?

In so far as those are wide-ranging duties, and many of the things that the Secretary of State does could be interpreted as being in accordance with that, it might well be that, by virtue of the statute, the independent regulator has no independence to interpret those duties in a way that is different from the Secretary of State. In practice, therefore, the independence is undermined. That is why I turn the wording around and say

    ''in a manner not inconsistent with''

so that at least we do not allow clear division inside the NHS about this, but do allow a degree of latitude as to how the independent regulator—as compared to the Secretary of State—interprets the duties into any particular set of circumstances.

That sums up amendments Nos. 232 and 107. I confess to you now, Mr. Atkinson, and to the Committee, that I do not intend to press those amendments. They are designed to get answers on the way in which the duty of the regulator ought to be structured, and on some matters that ought to be included but which I do not see. The Government should accept amendment No. 123 as it is. This is not so much about the duties of the regulator as about the manner in which the regulator should exercise those duties. There are three elements to this; the words

    ''as appear to him to be relevant in the circumstances''

do not refer to overriding considerations but to considerations according to the circumstances.

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First, we are meeting regulators everywhere nowadays. Again, we get into the rigmarole of how regulators work, yet the principles of the Better Regulation Task Force, of blessed memory, are reflected in the principles that are applied to regulators. Those are the principles of transparency and accountability. Moreover, regulators must be proportionate, consistent, and target only cases in which action is needed. To an extent, of course, if those principles were included through amendment No. 123, some of the deregulatory duty implied in amendment No. 107 would not be needed.

The question is whether the regulatory principles—the best regulatory principles enunciated by the Government for regulators across Government as a whole—are to be reflected in the statutory obligations of this independent regulator. Will the different needs and interests of persons using NHS services be addressed? As far as I can tell, Mr. Atkinson, the duties that are included in the National Health Service Act 1977 do not differentiate. It may be that, although we are talking about localisation and, in theory, about responsiveness to the different needs of patients, the regulator has no statutory backing to require him to address responsiveness.

I have isolated two examples. The first, in practice, is the structure of foundation trusts and how they work and interact with other health service bodies and, indeed, other local authority bodies, which may well differ between rural and urban areas. I will not make a long argument about rural areas. Departments ought to take this as read because of the nature of rural-proofing of legislation. However, as the Bill has regard to the different interests of urban and rural areas, the independent regulator is obliged to rural-proof the way that he does his work.

Secondly, the different interests of children in the NHS must also be addressed. Again, the different interests of children in the NHS ought to be meat and drink to Ministers. As a consequence of a range of reports that were discussed in the House as recently as the publication of the Kennedy report on the outcome at Bristol royal infirmary, Ministers are trying to ensure that the NHS has a separate and distinct focus on the needs of children. That focus is enunciated in the first part of the national service framework for children, and has been made obvious by the Government's initial response to the Victoria Climbié inquiry and the promotion of the pilots for children's trusts.

Not only that, but within the structure of the NHS—linking together local authorities and other bodies with responsibilities for children—the presence of children's trusts will make it clear that the independent regulator must have regard for the ways in which services are configured for children. Those services must be distinct and different from those configured for the rest of the NHS's patients.

The third limb is the compact between Government and the voluntary sector. I am sure that the Minister will recall that the Department of Health has an obligation—the terms of which are available on one of the Department's web sites—by which it is

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    ''determined to see all NHS organisations in England signed up to a geographically relevant Local Compact by 31 March 2004''.

I am sure that the Minister will be equipped to tell us today whether that will be the case, and whether it will apply to NHS foundations trusts. However, it does not completely answer the point, because ''geographically relevant local compacts'' are relevant from the point of view of trusts working with local authorities and local voluntary organisations.

The question is whether the independent regulator will be required to comply with the compact, which, at a national level, is an agreement between central Government and the National Council for Voluntary Organisations. That is important, because voluntary organisations may, in the fullness of time, become substantial clients of the independent regulator. If, for example, under clause 5, which deals with other applications, a body other than an existing NHS trust, such as a group of hospices, was to become an applicant for NHS foundation trust status, it would be a voluntary sector organisation seeking to receive authorisation from the independent regulator.

As I understand it, the compact is currently an agreement—without statutory backing—between central Government and the voluntary sector. It applies to Departments in central Government. By extension, it applies to Executive agencies and non-departmental public bodies that are answerable to those Departments. It does not apply to existing regulators. I know that to be a fact because the NCVO has been in touch with other regulators, who have said that they have been established by statute as non-ministerial Departments and that their responsibilities and requirements are laid down in statute. The compact is not part of those requirements and, therefore, cannot be applied to those independent regulators simply because Ministers have agreed with the NCVO.

If the good principles set out in the compact about the manner in which central Government deal with voluntary sector organisations are to be applied, including, for example, some of the principles of fairness and equity in applications for NHS funding—NHS authorisation of a foundation trust is a very good example—it is important that the compact be applied specifically to the independent regulator as a non-ministerial Department. Provision for that must be included in the Bill.

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I hope that I have explained to Ministers, particularly on amendment No. 123, why these aspects of the independent regulator's work should be expressed at this point in the Bill. As far as I am aware, and unless I am told otherwise, the drafting is adequate for that purpose. I speak to amendment No. 232 for the purposes of our discussion today, but I reserve the possibility of pressing amendment No. 123 to a Division later.

 
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