Schedule
1
The
Care Quality
Commission
Mr.
O'Brien
:
I beg to move amendment No. 158, in
schedule 1, page 107, leave out lines 22 to
24 and insert—
‘3 (1) The
Secretary of State shall appoint not fewer than 5 or more than 9
individuals as members of the Commission (to be known as Care
Commissioners).
(1A) In
appointing Care Commissioners the Secretary of State shall appoint an
individual only if the Secretary of State thinks that the
individual—
(a) has
experience or knowledge relating to matters in respect of which the
Commission has functions,
or
(b) has experience or
knowledge relating to matters in respect of human rights,
or
(c) has experience or
knowledge as a user of services relating to matters in respect of which
the Commission has functions,
or
(d) has experience or
knowledge as a carer of a user or users of services relating to matters
in respect of which the Commission has functions,
or
(e) is suitable for
appointment for some other
reason.
(1B) In appointing Care
Commissioners the Secretary of State shall have regard to the
desirability of—
(a) the
Commission having collective experience and knowledge relating to all
of the Commission’s functions,
and
(b) the Commission acting
as a collective, unified
body.
(1C) The Secretary of
State shall appoint a Chair of the
Commission.
(1D) Before
appointing any person to the position of Chair the Secretary of State
shall first seek the approval of the Health Committee of the House of
Commons.’.
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 159, in
schedule 1, page 108, line 27, at
end insert
‘and who shall act as
the head of paid service.
(1A)
The Commission must appoint a director of adult social care, who is be
an employee of the
Commission.
(1B) The Commission
must appoint a director of health care, who is to be an employee of the
Commission.
(1C) The Commission must appoint a director of
mental health, who is to be an employee of the
Commission.’.
No.
160, in
schedule 1, page 109, line 2, at
end insert—
‘(3A) The
Commission shall
appoint—
(a) an adult
social care committee,
(b) a
healthcare committee,
(c) a
mental health committee,
(d) a
human rights committee.
(3B)
The advisory committee and any committee or subcommittee appointed
under subparagraph (3A) may consist of or include persons who are not
members of the Commission.
(3C)
The chair of each committee established in accordance with subparagraph
(3B) must be members of the
Commission.
(3D) The other
members of each committee so established may include persons who are
not members of the
Commission.’.
Mr.
O'Brien:
I wish to introduce the amendments to try to
identify, in the context of the greater specificity contained in
schedule 1, whether the new commission is institutionally obliged by
its structure to pay attention to all areas of its activity, including
social care.
The
precedents upon which I have sought to draw are from the Equality Act
2006, something on which many hon. Members have gained expertise and
experience as it was so recent. That insists upon a similar structure
for the Equality and Human Rights Commission. In her oral evidence,
Dame Denise Platt noted
that:
“it may be
necessary to have some specific structural safeguards to ensure that
the social care aspects of our commission’s work are not
overlooked.”——[Official Report, Health and
Social Care Public Bill Committee, 8 January 2008; c.
7.]
Amendment
No. 158 provides for a separate commission to which putative business
directors of the CQC would report: that is, a management board and a
reference board. That is similar to the current set-up of the
Commission for Social Care Inspection. It would provide for an added
tier of independence between the day-to-day running of the commission
and the oversight of that operation. There is an obvious conflict of
interest if the board is responsible both for overseeing good
regulation of services and the use of resources in interaction with the
political and indeed media spheres in what are often extremely fraught
areas. It may be important to have a small number of commissioners to
ensure a collective and cohesive commission acting as one.
That would
also facilitate the point about intelligent regulation that Dame Denise
Platt made at the oral evidence session. In response to one of my
questions about the vital information base and the equivalence to the
old community health councils’ bed watch, she
said:
“One of
the things that an intelligent commission and regulator does is make
the unusual connections between pieces of information that are
routinely collected and published. They can cross-fertilise them and
ask the next question.”——[Official Report,
Health and Social Care Public Bill Committee,
8 January
2008; c. 21.]
I do not think any
of us should underestimate the massive value of that. The Mental Health
Act Commission, during the oral evidence sessions, made clear the need
for
“adequate
organisational and personal accountability at board level for the
monitoring of and reporting on the needs and rights of detained
patients.”——[Official Report, Health and Social
Care Public Bill Committee, 8 January 2008; c. 9.]
The amendment would put
in the Bill the requirement for appointments to that board to be
properly qualified. The legislation as it stands leaves to regulations
any conditions to be fulfilled for appointments. Not only should that
be in the Bill from the point of view of parliamentary scrutiny, but
the qualifications for the board should, at the very least, be
established by Parliament, rather than by Ministers if the CQC is to
have the genuine independence which is claimed for it and which the
Minister asserts. A third of the clauses in the Bill are dependent, of
course, on secondary legislation—a point that was emphasised in
the point of order at the outset of this afternoon’s
proceedings.
The
amendment further introduces a vetting procedure through the House of
Commons Select Committee. That is a procedure suggested under the
governance of Britain Green Paper, which proposed that certain senior
public appointments should have parliamentary Select Committee
scrutiny. Given that the new commission will be responsible for
assessing and inspecting the safety and quality of services that
together account for some 30 per cent., around £105 billion, of
discretionary public expenditure in 2007-08—there is also
significant private expenditure on adult social care and health
care—it could be argued that that process would seem highly
applicable.
Amendment
No. 159 establishes that the commission must appoint directors for
adult social care, health care and mental health. Lord Kamlesh Patel,
in response to a question from my hon. Friend the Member for Tiverton
and Honiton about whether his commission envisaged a separate team of
people dealing with Mental Health Act issues,
said:
“We would
probably want to see a separate team that influences the rest of the
organisation...what you do not want is a silo
approach.”——[Official Report, Health and Social
Care Public Bill Committee, 8 January 2008; c.
21.]
I think all of us who have
worked in and been responsible for large organisations—I can
certainly put my hand up to that—know that there is a massive
drag on organisations and a motivational negative effect if they work
in silos, rather than have open cross-fertilisation, so that expertise
runs freely across and information, above all else, is seen to be an
opportunity and not a power for
individuals.
On
amendment No. 159, there is a question as to whether the director of
mental health would oversee only the responsibilities formerly taken by
the MHAC, or whether he or she would oversee the regulation of mental
health provision. I hope that the Minister may be able to help on that
point.
On Second
Reading, the Secretary of State
said:
“Social
care must have parity in the new commission. That must be reflected on
the board of the new commission and in everything that the commission
does. I am pleased that she has given me the opportunity to reassert
that that is the case, and that it needs to be the case. That point
will be emphasised throughout the passage of the
Bill.”—[Official Report, 26 November 2007; Vol.
468, c. 37.]
Notwithstanding the
fact that I have been supportive by withdrawing the previous amendment,
I hope that the Minister will regard the proposal as an absolutely
wonderful opportunity to give effect to the express words of his
Secretary of State.
Amendment No. 160 would provide
for committees to be established that cover adult social care, health
care, mental health and human rights. They would consist of a mix of
members of the commission proposed under amendment No. 158, employees
of the paid service and, if necessary, individuals who are external to
the CQC. The committees would both support and interrogate the work of
the different areas of the commission and go some way to calling it to
account in addressing each area of its
responsibility.
I now
wish to touch on the Joint Committee on Human Rights and a matter that
has been of some concern to other hon. Members. Much has been made of
the broad issue of a human rights focus for the commission. In its
submission, the CSCI says that
it
“believes, in line
with general Government policy, that the new regulator should take a
strong rights based approach towards the people who use social care and
health services...and their
carers”,
and that it has
a desire for that to be reflected properly in
legislation.
In its
recent report “The Human Rights of Older People in
Healthcare”, the Human Rights Committee
recommended
“that the
forthcoming merged inspectorate for health, social care and mental
health adopts a human rights framework with the intention that the
framework informs all of the inspectorate’s work and so makes it
more effective in fulfilling its statutory
duties.”
It noted
that
“many witnesses,
including the inspectorates, providers and organisations supporting
older people, expressed concern about continuing poor treatment of
older people in
healthcare”.
It
charted the failings under articles 2, 3 and 8 of the European charter
of human rights on malnutrition and dehydration; inadequate assessment
of a person’s needs; abuse and rough treatment; neglect;
carelessness, poor hygiene and bullying, and patronising and
infantilising attitudes towards older people. Article 8 covers the lack
of privacy in mixed sex wards—another broken commitment by the
current Government—and lack of dignity, especially for personal
care needs; insufficient attention paid to confidentiality;
inappropriate medication and use of physical restraint; too hasty
discharge from hospital; fear among older people of making complaints
and eviction from care homes. Article 14 makes two further points that
concern discriminatory treatment of patients and care home residents on
grounds of age, disability and race and communication difficulties,
particularly for people with dementia or those who cannot speak
English.
Furthermore,
the Human Rights Committee, in its report, praised the MHAC’s
approach to human rights. In a ringing endorsement, it said
that
“in our view,
lessons can be learned from the more systematic approach pioneered by
the Mental Health Act Commission...We are aware of the recent
publication on implementing human rights by the MHAC in partnership
with the Department of Health and what was then the Department for
Constitutional Affairs. MHAC state their purpose was
‘incorporate a human rights framework fully in the work of the
MHAC, so that it becomes a recognised part of regular activity across
the organisation’...The MHAC publication contains
accessible and practical information on the steps that it took to
complete the project and it identifies what people working within the
commission learned from it. We are encouraged by the fact that the MHAC
is to be merged with the Healthcare Commission and CSCI and urge that
the highest common denominator should
prevail.” In
its submission, the Mental Health Act Commission called
for
“an overarching
principle of equality and human rights, focussing at all times on the
civil, legal and human rights of
patients”.
The amendment,
building on the two with which it is grouped, would make matters clear
in the context of human rights. The commission’s figures make it
clear that black African and black Caribbean patients are more than
three times as likely as the average to be admitted to and detained in
hospital. The commission says that the black other group, especially
men—largely second and third-generation black British
patients—are over 10 times, and as high as 18 times in the 2005
results, more likely than the average to be admitted. It says that
there is no epidemiological evidence to suggest that black people are
10 times as likely to have mental illness. MHAC also notes that it has
found a surprising and shocking number of very serious breaches of the
right to respect for human dignity and privacy, which on occasion may
have amounted to serious ill-treatment of women
patients.
While on our
first outing on human rights, an issue that will be covered extensively
by others, I want to highlight an area that I hope will give the
Minister the necessary food for thought in respect of the amendments.
The human rights issue is naturally all encompassing, but political and
public interest has recently been most exercised by the human rights
loophole under which private care homes are not bound by the
legislation and can therefore evict residents without breaching article
8. Their public sector counterparts cannot do so.
We are sorry that the
Government are dragging their feet over this. During the 15 June 2007
debate on the private Member’s Bill introduced by the hon.
Member for Hendon (Mr. Dismore) to clarify the Act, the hon.
and learned Member for Redcar (Vera Baird), the former Under-Secretary
of State for Constitutional Affairs, herself a human rights lawyer,
talked the Bill out rather than bringing it before the detailed
scrutiny and consideration of Committee. It is something that we would
have welcomed. On that occasion it was something that we did not
resist; indeed, we would encourage it. We were therefore disappointed
to see that that was the official view of Government on that
occasion.
2.15
pm
In a
Westminster Hall debate, the Under-Secretary of State for Health, the
hon. Member for Bury, South (Mr. Lewis), said:
“The current state of
affairs is an anomaly, and neither Government nor Parliament intended
that publicly funded residents living in private sector establishments
would not be covered by the Human Rights Act 1998. That is an
unintended consequence, and we need to put it right. The Government
have decided that the appropriate time to do that is when we consult on
the new rights and responsibilities Bill, in the context of a new
constitutional settlement, on which the Ministry of Justice will
lead.”—[Official Report, Westminster Hall, 11
December 2007; Vol. 469, c. 50WH.]
I rather hoped that there may be an
opportunity for Government to do some joined-up thinking and even some
joined-up working here, and contemplate that this is an area where, at
the very least, as it was not possible under the private
Member’s Bill procedure, we could have the discussion on the
issue in Committee and under its rules. Even if the Minister were to
say that he is not minded to proceed with amendments that deliver the
human rights angle—I cannot be sure, and I hope that he might
find himself persuaded by arguments produced by others—it would
none the less be extraordinarily helpful for the Committee to place on
record some of the arguments which would otherwise have been
considered, had the hon. and learned Member for Redcar enabled the hon.
Member for Hendon’s private Member’s Bill to proceed to
Committee. I am pleased to note that that view is shared across the
House as the amendments that relate to some of the human rights have
been supported by
others.
Sandra
Gidley:
On first glancing at these amendments, I thought
that it was useful to have greater clarity about the composition of the
board. I would have hoped that that was an automatic consideration. I
was interested when the hon. Member for Eddisbury referred to the
Equality Act 2006 as I think I might be the only person here who had
the pleasure of serving on that particular Bill Committee. During the
progress of that Committee, numerous attempts were made to prescribe
the detail of the board even more. Those were largely resisted because
the underlying assumption behind the Equalities Act was that a
rights-based approach should be at the heart of everything and that it
did not help to continue some of the silos that existed with the
separate equalities bodies.
Obviously we are now in a
situation that is not quite the same. A large number of legitimate
concerns have been raised about whether social care may be diminished
in some way. I have a lot of sympathy with that argument because social
care has always been a second cousin and it was pointed out in the
evidence on Tuesday that the bulk of the inspection will be in the
social care sector. Something will have gone badly wrong if the social
care sector does not have a fair share of the
action.
Although I
hope that such considerations are automatic, it is useful to think
about new sub-paragraph (1B), which mentions
“collective experience and
knowledge relating to all of the Commission’s
functions”.
Again, I
hope that, when a board is appointed, care is taken to ensure that all
functions are represented in some way. To draw a parallel with the
Equality Act, we had interminable discussions about whether there would
be enough women on the board, whether there would be enough people from
ethnic minorities, and whether people with disabilities would be
adequately represented. Most people reluctantly decided to go with the
flow to a certain extent and to trust that it would happen in practice.
So far, there have not been any problems, but I can well understand why
there were
concerns.
In an
earlier new sub-paragraph, there is an attempt to beef-up public
participation and involvement. Because concerns were raised on Second
Reading, I
would welcome the Minister’s comments on that subject. I also
query what new sub-paragraph (1A)(e) means. It seems to be a catch-all
measure. I can understand why it was put in, but I wonder whether there
are any circumstances in which the hon. Member for Eddisbury envisages
that it would be used. On new sub-paragraph (1D), as a member of the
Select Committee on Health, I understand that there have been a number
of recommendations about Select Committees taking on extra powers, but
more time will be needed if that is to happen because it is hard to
keep on top of the relevant legislation. I shall briefly discuss
amendment No. 160. I fully support the Joint Committee on Human Rights,
but am yet to be convinced about the merits of separate adult social
care committees, health care committees and mental health committees.
Again, it is particularly important that there is greater awareness of
mental health throughout the commission because one of the problems in
society as a whole is that the issue of mental health is often
parked-off to another Department. Even in the health service, there is
often a separate mental health trust and that does not help the wider
understanding of mental health issues in society. Rather than having a
separate committee that seems to have responsibility for mental health
issues, I would prefer the Bill to establish a way of underpinning
everything else. Because so many people are affected by mental health
issues and there is so little understanding, it is important to make
that subject almost a core value of the
commission.
Mr.
O'Brien:
I am rewinding slightly to the hon. Lady’s
question about why new sub-paragraph (1A)(e) is in the amendment. It is
indeed intended to be a catch-all, but we should recognise that the
commission intends not to set itself up against the Government or the
Secretary of State, but to ensure that it runs with the grain of what
is trying to be achieved cross-government and independently by those
experts in the sector who are at a supervisory rather than operative
level. That is why the catch-all is there: to ensure that the Secretary
of State’s influence can genuinely be applied in that
area.
Sandra
Gidley:
I thank the hon. Gentleman for that clarification.
I would question the need for all the committees, but I recognise the
spirit in which the amendments were tabled, which was to try to deal
with those legitimate concerns.
The hon. Gentleman referred to
various groups that were discriminated against and mentioned
Afro-Caribbean men. Under the Equality Act, there is a race equality
duty within the health service, so again that should be a core function
at the heart of the commission anyway. If we have got the processes
right and everything is working, I wonder whether this is absolutely
necessary and whether we need an internal body to scrutinise that, or
whether it is best left to the equality body. As someone who has taken
a great interest in equality issues, I am trying to avoid unnecessary
duplication.
Mr.
O'Brien:
The best I can do by way of intervention is
simply to say that, in the running and supervision of the processes and
governance of a large
organisation, anything that helps at a very economic cost—and,
hopefully, a commission of this nature would not be high-cost—is
where one gives priority and focus.
The easiest example is that of
a large company manufacturing in many countries all over the world. If
the board that is overseeing all the operations has as agenda item No.
1 every single time health and safety, particularly safety breaches, it
is likely that the whole organisation culturally will come to know that
the board focuses on and values that and it is not just an add-on in
order to tick a box and satisfy the culpability-avoidance of others.
That is what the proposal is intended to achieve. It is to get focus at
an economic
cost.
Sandra
Gidley:
I take the hon. Gentleman’s point but I
question whether we need a specific person with a specific role to do
that, and whether that should be a core function of that particular
board. I look forward to the Minister’s comments on the
amendment.
Kelvin
Hopkins:
I will speak briefly to make two points. The hon.
Member for Eddisbury raised, at least implicitly, the question of human
rights and my amendment to a later clause, which I will not discuss
now. It clearly is necessary to have a capacity to monitor human rights
within the structures that are set up. One does not want to be
specific. I am not being specific, but clearly that is
needed.
I wanted to
raise another issue, which was touched on by the hon. Member for
Romsey: racism within the care services. That has been raised strongly
with me by people who work in the industry. Racism shows itself in a
variety of ways and circumstances, both with staff and those in receipt
of care. It is important to have representation at every level,
particularly of groups of minority ethnic people because these are such
sensitive areas. It does happen where management bodies are all-white,
all-middle-class and all-professional and do not have sufficient
sensitivity to the concerns and to what goes on at the grass roots, at
the basic service level.
I know that there are serious
concerns about racism towards staff and towards patients and, of
course, a lack of sensitivity between the different minority groups. I
represent a constituency with tens of thousands of people from a range
of ethnic minority
backgrounds.
Sandra
Gidley:
I was a little concerned about the comments about
racism. I am glad to clarify a little because my experience is that
there are instances that are often regarded as racist but are
unintentional. It is a lack of understanding, rather than something
that needs to be dealt with by a heavy hand. It is more about getting
the processes and the understanding right in the first place, rather
than coming in
afterwards.
Kelvin
Hopkins:
I thank the hon. Lady for her intervention. I
agree that it is a matter of sensitivity and that people sometimes
misunderstand each other, yet there are definite instances of racism as
well, which I have been informed
about.
2.30
pm
Mr.
O'Brien:
The hon. Gentleman is raising a vital point. I am
glad he is taking the opportunity to do that now, as I am absolutely
sure that the whole Committee will know of people in care settings who
are perhaps of a generation or personality that has not really caught
up with how the modern world, quite properly, now treats all its
citizens. They might say that they do not wish to be cared for by
someone not of apparent Caucasian origin. It is absolutely vital that
we recognise that existing laws and management processes are intended
to ensure that that is addressed in a sensitive and properly managed
way. The vital question that the hon. Gentleman raises is whether our
Committee should be considering whether there is any additional
legislative requirement to help reinforce what now needs to happen to
try to address such extremely difficult and sensitive
problems.
Kelvin
Hopkins:
The hon. Gentleman makes valid points; I am not
suggesting anything specific for this stage of the Bill. There are
other aspects; for example, those from religiously conservative origins
from outside Britain may be sensitive about being cared for by people
not of their community or gender. Such matters are of serious concern
in my own constituency, and over time one hopes one becomes more
relaxed about them. The way to deal with that sensitivity is to make
sure that there are representations from minorities at every
level—including the highest level—so that we do not just
gloss over the difficulties and that people are sensitive to them. It
is not about having just one representative from a particular group who
may perhaps be more liberal and relaxed. Lord Patel, for example, is
urbane, sophisticated and westernised, but some people are not quite
like that. One wants a form of representation at every level, although
not necessarily with reserved seats. It is about Ministers being
sensitive to these matters and making sure that there is a balance on
all bodies at every level.
Anne
Milton:
It is not only about representation. Does the hon.
Gentleman agree that it is also about training and cultural awareness?
That is absolutely crucial, and always a concern. When there is change,
there is even more concern about budgets getting tight—I know
that has been mentioned already—and one thing that goes is
training, particularly cultural training, which is seen as a soft
target.
The
Chairman:
Order. Before the hon. Gentleman replies, we
seem to be straying a bit from the
amendment.
Kelvin
Hopkins:
I take your strictures, Mr. Hood. I
have made my point; the hon. Lady is absolutely right. The way to
ensure that we get that training is to have representations from
minorities on all bodies to make that
point.
Mr.
Bradshaw:
To return to the
amendments —[Laughter.]
The amendments seek to specify
a great deal more prescriptive detail than we feel happy with in the
Bill. They refer to appointments, board responsibilities and the
advisory committee make-up for the new Care
Quality Commission. As I have said already, we are establishing a
commission to be an independent voice on health and adult social care
matters. We believe it should be for the commission itself to establish
the organisational structures and split of responsibilities that it
determines it needs best to carry out those functions and deliver its
aims. That should extend to the executive team it chooses to have, the
committees it feels are appropriate and whether those committees are
chaired by a member of the commission or by someone else. I remind the
Committee that the new commission will be under statutory duties to
fulfil the functions of the existing regulators, and will be answerable
through Ministers to Parliament, so there is that guarantee. Secondly, we are establishing a
single regulator to reflect the greater integration of services taking
place across previous boundaries between health and adult social care.
An integrated regulatory system, where all providers are assessed
against the same standards by the same body, will provide the
consistency and assurance that we believe the public expect. Specifying
that the commission must have executive officers and committees that
lead on different client groups could undermine the commission’s
ability to adopt that integrated approach; it could serve only to
invite calls from other groups that would also like their specific
interests to be represented at a high level in the
organisation.
That
point extends to how the commission determines that it should address
its responsibilities under the Human Rights Act 1998. I will say a
little more about that in a second, but as a public body, the
commission—I emphasise this—will be subject to the Act
and will have to carry out its functions in ways that are compatible
with it. There is nothing to prevent the commission from appointing
expert advisers to give specific advice, where it considers that
necessary. We believe that it is better to give the body the freedom
and powers to determine that, rather than trying to impose something
centrally.
To clarify
things in a little more detail—I know that we will discuss human
rights later, but this was referred to by my hon. Friend the Member for
Luton, North and the hon. Member for Eddisbury—the Bill makes it
clear that decisions on registration can be taken by reference to the
registration requirements and the requirements of any other piece of
legislation that the commission thinks relevant for registration
purposes. That means that if the commission is satisfied that a
registered provider is not meeting its obligations under the Human
Rights Act, it will be able to take appropriate enforcement action. As
the hon. Member for Eddisbury acknowledged, the Government are
committed to ensuring that independent sector care homes are covered by
the Human Rights Act. We hope to address that in the forthcoming
British Bill of rights and responsibilities, which will allow us to
deal with it in the wider context of the public authority definition.
In the meantime, this Bill will ensure that the Care Quality Commission
can enforce regulatory requirements, in line with the relevant
provisions of the Human Rights Act, in its current form and as it may
change in the future. The reason we feel that it is better to wait for
the forthcoming British Bill of rights is that the meaning of public
authority goes much wider than care homes and it is important that we
find a lasting and effective solution. As has already
been acknowledged, the Ministry of Justice will address the issue in its
consultation on the British Bill of rights and responsibilities, and
draw on a wide range of expertise during that process. I hope that
it is clear that we see the independence and effectiveness of the chair
and board as crucially important in establishing an effective
commission. We will ensure that the commission is a model of
independence in that respect, as we did when establishing the
Healthcare Commission and the CSCI. Amendment No. 158 specifically
proposes that the appointment of the chair be subject to
pre-appointment scrutiny by the Health Committee. I am pleased that the
Opposition are supporting our proposals for strengthening the role of
the House of Commons in public appointments, which the Government set
out in the Green Paper “The Governance of Britain.” That
includes proposals to involve Select Committees in certain public
appointments; however, it suggests that appointments already subject to
independent scrutiny and regulation are probably not suitable for
additional pre-appointment scrutiny by Parliament.
Appointments to the Care
Quality Commission will be made by the Appointments Commission and
regulated by the independent Commissioner for Public Appointments. I do
not, therefore, believe that it is necessary for the Select Committee
to have an additional scrutiny role. However the Government are
currently preparing a list of appointments that would be suitable for
pre-appointment scrutiny. The list will be agreed with the Liaison
Committee and, where appropriate, with the Commissioner for Public
Appointments, and we should await the outcome of that process. I
therefore ask the hon. Members to withdraw the
amendments.
Mr.
O'Brien:
I just want to be absolutely clear that the
Minister’s final statement about the use of the public
appointments commission is intended to be the definitive position, in
light of the comments of the Secretary of State on Second
Reading.
Mr.
O'Brien:
I have listened carefully to what the Minister
has just said and to the other hon. Members who spoke, on both sides of
the Committee. It is important to recognise how the concept applied in
the amendments is intended to highlight the need for independence. The
words used by the Minister in response to that may be helpful in our
forthcoming discussions on independence. I hope that we will be able to
reflect on the ability to reinforce that through the way in which it is
intended that the Bill will operate.
In
terms of the concepts in the amendment, however it seems to me that as
we develop our scrutiny of the Bill, if the balance the Minister
identified between the underlying tension between prescription and the
freedom to act independently becomes clear—including the
conceptualisation of the establishment of bodies and recognising also
the danger of insufficient prescription—there will not be
continuing organisational confidence that things would not fall through
the gaps. This ties into the previous discussion. Looking at the
question holistically, if we feel that the whole scrutiny of the Bill
does not satisfy the concerns that underpin a serious set
of amendments in this group, either we would be able to come back to it
on Report, or possibly we would want it to be considered in another
place. Some of the
reassurances have been helpful, and give us a clue as to where the
debating points are as we proceed. On that basis, I beg to ask leave to
withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Greg
Mulholland (Leeds, North-West) (LD): I beg to move
amendment No. 131, in
schedule 1, page 107, line 23, after
‘State’,
insert—
‘(aa) a Deputy Chair
so appointed with particular responsibility for human
rights’.
The
Chairman:
With this it will be convenient to discuss the
following amendments:
No. 132, in
schedule 1, page 108, line 27, at
end insert—
‘( ) The
Commission must insert a human rights director who is to be an employee
of the
Commission.’.
No.
133, in
schedule 1, page 109, line 2, at
end
insert—
‘(
) The Commission must appoint a human rights
committee.’.
No.
130, in
clause 2, page 2, line 14, at
end insert—
‘( ) the need to
observe the human rights of those accessing adult social care and
health
services.’.
No.
79, in
clause 2, page 2, line 20, at
end insert—
‘(g) the need to
ensure that decisions regarding the degree of risk to service users and
the prioritisation of regulatory action protect and promote respect for
human rights in accordance with the European Convention on Human
Rights.’.
Greg
Mulholland:
Thank you Mr. Hood; it is a
pleasure to serve under your chairmanship.
As someone who was something of
a sceptic, I take this opportunity to say that I felt the evidence
sessions were extremely worth while in allowing the Committee to probe
this very important issue. My only complaint would be
that—unlike this Committee Room where we have space to stretch
out—there was not enough room, so there should be a larger room
for future events. I thank the hon. Gentleman for Wirral, West for his
helpfulness and graciousness this morning in moving to allow me to sit
with my colleague. It was much
appreciated.
Stephen
Hesford:
Will the hon. Gentleman give
way?
The
Chairman:
Order. I think we should get to the
amendment.
Stephen
Hesford:
Just in
passing—
Greg
Mulholland:
I would be happy to give way but unfortunately
I have been overruled.
The
amendments relate to an ongoing theme, which has already been
mentioned, and amendment No. 160,
tabled by the hon. Member for Eddisbury and his colleagues, actually has
precisely the same recommendation as our amendment No. 133. We will
hear more about human rights when we get to clause 5 and new clause 3
and in amendments Nos. 81 and 82, tabled by us and the hon. Gentleman
for Luton, North. The point of the amendments is that a lot of
us—and a lot of organisations—feel that the need to put
human rights at the heart of the new commission is not sufficiently in
the Bill currently. The Joint Committee on Human
Rights in its recent report made the following
recommendation:
“We
recommend that the forthcoming merged inspectorate for health, social
care and mental health adopts a human rights framework with the
intention that the framework informs all of the inspectorate’s
work and so makes it more effective in fulfilling its statutory
duties.”
It is fairly
clear that there needs to be human rights compliance, and of course the
Bill is compliant in strict terms with the Human Rights Act, as it has
to be. Nevertheless, I feel that at this stage—certainly on the
face of the Bill—regard for human rights and human rights
legislation has not been given central importance.
On the
amendments that apply to clause 1, amendments Nos. 131 to 133 are
clearly organisational, amendment No. 131 introduces a deputy chair
with responsibility for human rights, amendment No. 132 would appoint a
human rights director and amendments Nos. 133 and 160, a human rights
committee. Amendments Nos. 130 and 79 apply to clause 2 but are
relevant at this stage, hence the grouping. They deal with the
functions of the commission, and would ensure that actions and
decisions taken by the new commission have full regard for human rights
and human rights
legislation.
2.45
pm
Following the
comments made by the hon. Member for Eddisbury, I want to say how
strongly we feel that the loophole that currently excludes private care
homes must be closed, and I note the Minister’s remarks on that.
However, that must not be used as an excuse for not putting human
rights legislation and a regard for human rights at the heart of the
Bill. I would be concerned were that the case, and I ask the Minister
to respond to that point.
The amendments ensure that
human rights are at the heart of the new commission and its functions,
methodology and, most importantly, its work. I believe that that needs
to included in the Bill. I would be delighted if the Minster accepted
some or all of the amendments—it would be a wonderful start to
the Committee. If he will not, I hope that he will reassure the
Committee that that approach and regard for human rights is there, even
if it will not be in the Bill.
Angela
Browning:
In his response to the amendments tabled by my
hon. Friend the Member for Eddisbury, the Minister made it clear that
he does not want to be—in his terminology—prescriptive
with regard to the Government’s setting out in the Bill the
specific responsibilities of, for example, the deputy chair or
individual commissioners. Further on in the Bill, we will find that he
has departed from that just a little, but that is for other
clauses.
In public appointments, it is
common to see boards advertise vacancies with particular emphasis on
the disciplines that the board or organisation is looking for. I hope
that as the first group of new regulators is put together, it will be
easy to pick up early on whether there are any glaring omissions, such
as the failure to identify in the job “spec” people who
have knowledge of human rights. In the same way, one would expect to
see the appointment of someone to take responsibility for governance
throughout the organisation. That is par for the course in many cases.
However, in light of the amendments tabled by the Liberal Democrats and
those already dealt with on behalf of my hon. Friends, I wonder whether
the Minister, who will monitor how these jobs are initially defined,
would be minded to intervene were he to discover a glaring omission,
and that the organisation had nobody with human rights expertise or
governance to guide it.
Mr.
O'Brien:
All I wish to do with these amendments is,
without repeating, to reread my comments from the previous session as
they are pertinent. That gives the Minister a second opportunity for
reflection even in this short period of time.
The point raised by my hon.
Friend the Member for Tiverton and Honiton is important. During the
scrutiny of the Bill it is worth making such points, because many
people who operate the CQC and think about how to appoint the
appropriate people will read the proceedings as part of their job
briefing. For anybody who is sufficiently motivated and committed to
apply to be in the CQC, one of the tests will be whether they have had
the initiative to read our proceedings, and they will have picked up on
the sort of operational experience that my hon. Friend has put on the
record. I hope that that meets the Minister’s concern about
prescriptive legislation, while benefiting from the parliamentary
scrutiny process.
Mr.
Bradshaw:
The hon. Gentleman has kindly answered the hon.
Member for Tiverton and Honiton’s question. In the meantime, I
was hurriedly trying to find out about existing protocols for
ministerial interference in appointments made by the Appointments
Commission, but I did not get the answer quickly enough. All that I can
tell the hon. Lady is that so far in my ministerial experience, I have
not, as far as I am aware, ever intervened or taken a critical interest
in appointments made by the Appointment Commission because I felt that
they did not reflect the sorts of needs and balances that she desires
to see.
There is a
general view that the Appointments Commission has done an extremely
good job, and the hon. Member for Eddisbury is absolutely right: I
would expect that one of the first things that the Appointments
Commissioner or commissioners responsible for appointing members to the
new regulator would do—and, once the new chief executive or
chair is appointed, one of the first things that they will also
do—is to read the proceedings of this Committee and take into
account the comments that have been made by hon. Members. I imagine
that that is something that they would do
diligently.
Angela
Browning:
One of the things that one observes from time to
time—not in every case, of course—is that a specific
board appointment is
advertised and certain disciplines and expertise are looked for. It may
well be human rights or, quite commonly, as I mentioned earlier,
governance. That has been precipitated because of a breakdown and
because of problems having emerged through a lack of existing expertise
on the board. We want the Minister to do well with this commission; we
want him to get off to a good start because whether or not he is
detached from it, this will be his baby. He should face up to that, and
I am trying to be helpful to him. It is far better that some guidance
be given as to the balance of expertise at the beginning, rather than
waiting for something to go pear-shaped and then deciding that
expertise is needed on the board.
Mr.
Bradshaw:
I know that, sadly, the hon. Lady may well no
longer be in this House when the new organisation is up and running, so
perhaps she would like to consider potential future activity herself in
this regard. I suspect that that is not the first or the last job
application that we will encounter—or may already have
encountered in our evidence-taking
sessions.
Mr.
O'Brien:
Would the Minister be able to encounter anybody
who is a freer spirit and more independent to get us off to a good
start?
Mr.
Bradshaw:
The point is well made, but rather than being
prescriptive personally—I have already sought advice from my
officials because I would like the answer to this question
myself—if at the same time we are stressing the importance of
the independence of the Appointments Commission, it would be
inappropriate for me as a Minister to intervene or prescribe in that
way. However, we are making it clear in the Bill that we expect the new
Care Quality Commission to fulfil the statutory functions of the
existing regulators. It is inconceivable that the commission will not
take great care in ensuring that it appoints a board whose balance
reflects an ability to fulfil those statutory functions and the human
rights requirements that the amendment refers to, which I would like to
come to now.
Without
repeating too much of what I said in response to the previous set of
amendments tabled by Conservative Members, we already make it clear in
clause 2 that the commission must, in everything that it does, pay
particular heed to safeguarding the rights and welfare of vulnerable
people. As a public body, the commission will be subject to the Human
Rights Act and will have to carry out its functions in a way that is
compatible with that Act. It will be able to look at the performance of
providers against registration requirements that follow the spirit of
the European convention on human rights. Providers that fail to protect
the dignity and human rights of individuals in their care will be
liable to the appropriate enforcement action, which could include
prosecution or the cancellation of registration.
Amendments
Nos. 131 and 133 would establish particular roles within the structure
of the new Care Quality Commission, each with the responsibility for
human rights issues specifically. Our view is that we should not be
over-prescriptive regarding the make-up of the board, and the board
should not be made up of delegates. We fear that other groups would
then claim that their voices have as much right to be
heard—consumers, professionals being regulated, for
example—as those set
out in the amendment as “human rights” specialists. In her
questioning of the previous amendments, the hon. Member for Romsey
alluded to the fact that in some cases, having a specialist board
appointment could lead to a silo mentality or ghettoisation of a
particular issue, and serve to prevent that issue from being integrated
properly into every aspect of the board’s—and, indeed,
the organisation’s—work and culture. As I said earlier,
there is nothing to prevent the board from appointing expert advisers
to give it specific advice where it needs additional
expertise. Also, there
is a requirement in the Bill for the commission to establish an
advisory group and other committees that it sees fit. There is tangible
protection for all interests served by the commission in its public
accountabilities. It is required to report annually to Parliament, its
accounts will be independently audited, and it will be dealing with
high-profile and intractable issues that will keep it very much in the
public eye. Therefore, we believe it right that the new organisation
itself establish its structures and the split of board-level
responsibilities. We believe it better to give it the freedom and
powers to do so, rather than imposing something
separately.
In
response to the question from the hon. Member for Tiverton and Honiton,
I am advised that the Secretary of State delegates all the functions to
which the hon. Lady refers to the Appointments Commission. Technically,
the Secretary of State could take them back and intervene, but we are
not aware of that ever having happened. For the reasons that I have
outlined, I hope that the Members concerned will withdraw their
amendments.
Greg
Mulholland:
This is the second time that I have served on
a Committee with the Minister. Last time, we considered the rights of
goldfish in fairgrounds and dogs having their tails cut up or not; this
time, it is human rights. As ever, I accept some of what the Minister
has said, but I do not think that the intention of the amendments is
prescriptive. Clearly, some suggestions are intended to probe the
general principle, but it is more fundamental than that; we are talking
about the key guiding principle that I and many others believe firmly
should be at the heart of setting up the commission. There are many
people and organisations, including CSCI, that believe that human
rights could be strengthened in the Bill in organisational terms.
Frankly, it is too important to leave until the stage when the
commission is, rightly, looking at the best way to set itself up. I
will accept that the particular organisational suggestions may not be
the right ones, but I still feel that the principle is right.
Therefore, perhaps we can come back to that again, following the Bill
going through the House.
I was hoping for more
supportive noises from the Minister on the actions and decisions taken.
It is fundamental that everything that the commission does has regard
to human rights and to human rights legislation. Let me clarify one
point: my hon. Friend the Member for Romsey was talking not about the
human rights committee but about social care, health and mental health.
She fully supports the idea put forward by both parties on this side of
the Committee regarding a human rights committee.
Also, I am slightly disappointed
that the Minister did not address the specific concern that I raised
with him—my hope that the loophole regarding private care homes
being dealt with later does not mean that the human rights focus is
being dropped from the Bill. I believe that that is very important. I
hope that we will come back to this issue, but on the basis that this
is an early amendment and there has been a useful discussion, I beg to
ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Schedule
1 agreed
to.
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