Health and Social Care Bill

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Schedule 2

Transfers of property and staff etc.
Question proposed, That this schedule be the Second schedule to the Bill.
12 noon
Mr. O'Brien: Clause 3 introduces schedule 2. It is the enabling clause for the schedule, which transfers property, rights and liabilities. The Minister told us on Thursday that although establishing the CQC will cost £7 million, as outlined in the regulatory impact assessment, the transition costs will be £140 million. He said:
“The £140 million includes the cost of redundancies, estates rationalisation and planned reduction of the operating costs.”——[Official Report, Health and Social Care Public Bill Committee, 10 January 2008; c. 120.]
I hope the Minister will take the opportunity, as we examine the schedule, to detail what that £7 million covers, the current estates and the length and value of their leases. He will want to take note of information provided to me that, in relation to the Healthcare Commission, Finsbury tower is on a long lease taken out by its predecessor organisation, the Commission for Health Improvement, running until 2020, with a lease-break clause in 2015. That goes straight to the heart of the point.
Will the downsizing be anything beyond that already planned by the various regulators? I hope it is clear that by the end of March, the CSCI will have closed two thirds of its inherited estate of 84 offices: 56 closed, 28 remaining. As I understand it, that is the position, but I have not had the chance to confirm it with the CSCI. Where will the CQC be based? Given the Prime Minister’s 2004 commitment to relocate 20,000 civil service jobs outside London following the Lyons review, how many jobs will be moved out of London? As an MP representing a north-west constituency, I can tell the Minister that that is of very significant interest to my area, and I dare say that other Members have a not dissimilar interest, although we from the north-west will compete for those relocated jobs.
Will the Minister outline the liabilities of the three regulators? That will be vital before they are disbanded and transferred. How many staff are employed by each regulator in England, with an inside/outside London split, if possible, in Wales and in Northern Ireland? That is the context and background, and it is absolutely vital that we understand the operative part of clause 3, which brings into force schedule 2.
Schedule 2 deals with transfers of property, staff and the rest, so how much of the property, rights and liabilities will revert to the Crown? What is the expectation of paragraph 1(4), which says:
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.”?
The Minister will note that the paragraph is italicised, which means that it involves taxpayers’ money, so it is incumbent on all of us to find out what is intended. Does he have an estimate of the possible compensation? It is taxpayers’ money, so not only should he know, but we have a right to know, and so do the public. Has the amount been crystallised, or is it open to increase?
What is the process for obtaining the consent of Welsh Ministers under paragraph 1(6)? There is a very important point to be made at this juncture. There has been a puerile and crass attempt by the Labour party of Wales to try to undermine some of the amendments to the Bill, which quite rightly seek to put pressure on the Minister to decide whether he or Welsh Ministers will have responsibility for the legislation in Wales. Instead, the Government have kept the options open and not made a decision, and the legislation is all over the shop. They have got their little cronies in Wales to concoct a press release to try to undermine the amendments. Look at the evidence: only the Opposition have a Welsh MP on the Committee. The Labour Government do not, so they do not have somebody in the Committee who understands how the devolved powers work and can stand up for the interests of patients in Wales, be they in the health service or social care.
It was not only puerile but absolutely misplaced and deeply misjudged for the Labour party of Wales to start a nasty political spat when, in fact, only the Conservative party has managed to put on the Committee somebody who can stand up for the interests of Welsh people. I hope that my hon. Friend the Member for Preseli Pembrokeshire will have an extremely enjoyable time ensuring that he stands up for the people of Wales and his constituents where the Government have failed, given that they had the option to select somebody representing a Welsh constituency. We did so, and we are glad to have had that opportunity.
On paragraph 2, it will be important to ensure that the day that the Secretary of State is likely to appoint for the transfers to take place is named. Failing that, many things will be difficult to determine. I hope that the Minister will take the opportunity to spell out why paragraph 3 is drafted as it is with regard to transfers under the Transfer of Undertakings (Protection of Employment) Regulations 1981, which I would have thought would be of grave interest to all members of the Committee. We have a duty to understand the rights that attend upon transfers of responsibilities and employment expectations, which are beyond the power of those involved in legislating in this place.
Finally, how many posts has each regulator already cut since the inception of the Gershon review? How many staff have the regulators lost through wastage due to the anticipated merger of their responsibilities? Without those numbers, we can make no sense of the claims made by the Minister and his colleagues.
Mr. Stephen Crabb (Preseli Pembrokeshire) (Con): It is a convention—and also heartfelt from me—to say what a pleasure it is to serve under your chairmanship, Mr. Conway.
As my hon. Friend said, the schedule provides for the transfer of the property, rights and liabilities of the various bodies affected by the Bill—in the case of Wales, the Mental Health Act Commission. I should like to ask the Minister a few brief questions about how the Bill applies to Wales, with a view to helping the scrutiny process. Those who follow closely the proceedings of the Select Committee on Welsh Affairs, as I am sure many do, will know that the quality of scrutiny given to legislation made here that affects Wales, particularly framework legislation and the new legislative competence orders, is a live question.
Although Members from all parties might feel comfortable devolving further functions and powers to Welsh Ministers as part of the ongoing devolution process, it is surely incumbent on us to ensure that there is the best possible scrutiny at an early stage. To that end, will the Minister update the Committee on the discussions that he and his officials have had with Welsh Assembly Ministers about how the Bill will apply to Wales? Specifically, what does he understand the property, rights and liabilities of MHAC in Wales to be? Did Welsh Ministers, during his discussions with them, identify any additional resources that they would need to be able properly to fulfil their new functions and powers under the Bill?
Given the benefit that the Minister anticipates the creation of the new independent and integrated Care Quality Commission will achieve in England, my main question and concern about the application of the Bill to Wales is how comfortable he is about investing Welsh Ministers with many of the relevant functions, and the extent to which he thinks that the spirit of independence that has been discussed in relation to the CQC in England will be observed in Wales. Perhaps he will update us on what Welsh Ministers have said and on how they intend to use the powers to ensure that people in the Principality benefit to the same extent as those in England from the new provisions in the Bill.
Mr. Bradshaw: I regret that I do not have to hand the exact figures on liabilities and the length of the leases of various buildings, but I have written to Committee members following last Thursday’s sitting when evidence was taken about costs. If the Committee so desires, I can hold on to that letter a little longer and add some of the detail that has been requested, or send the first letter and include in a further letter some of the issues of liability in as much detail as we can gather in the time. Does the hon. Member for Eddisbury have a preference on that?
Mr. O'Brien: I am most grateful for the Minister’s offer, and indeed for allowing us to express a preference. It would be very helpful to us, in getting a handle on the issue, if he would send the letter that he has taken the trouble to put together as soon as possible, and send a further letter when the other details are to hand, so that we can give the matter proper consideration.
Mr. Bradshaw: On the questions about Wales, hon. Members will know that the Care Quality Commission covers England only, but the MHAC is, I am advised, covered in clause 48(3). Again, I shall perhaps add a few lines on Welsh issues for members of the Committee, although we have liaised closely with Ministers and colleagues in the Welsh Assembly Government throughout the development of policy on the Bill. They are happy with the provisions, and so are we.
Anne Milton (Guildford) (Con): Will the Minister give us—he did not mention this—the figures on the loss of staff? That came up during evidence sittings. It is a crucial matter in the transition period and it is extremely important for the Committee to hear how many staff have already been lost.
Mr. Bradshaw: Yes. I am happy to do that.
Question put and agreed to.
Schedule 2 agreed to.

Clause 4

“Regulated activity”
Question proposed, That the clause stand part of the Bill.
Mr. O'Brien: This is one of about five affirmative resolution clauses in the Bill, and it concerns the regulated activity with which we must now be concerned as we move on to consideration of chapter 2. The Committee must effectively have another meta-debate on this clause, if I can put it that way, given that the real meat will be in the regulations. Clause 90 tells us that
“‘prescribed’ means prescribed by regulations”
made by the Secretary of State. The clause also defines the geographical scope of regulations—England, mainly.
While both the Commission for Social Care Inspection and the Healthcare Commission cover England alone, as the Minister has just mentioned, the Mental Health Act Commission currently oversees the operation of the Mental Health Act 1983 in England and Wales. It was appropriate for us to raise the point about Wales in the previous debate, because it was covered by schedule 2, but I noted—and it is relevant to the present matter too—that the Minister has undertaken to return to some of the points that were raised, both in writing, which is very helpful, and when we come to debate further clauses and amendments.
12.15 pm
The Bill gives the functions of the MHAC pertaining to England to the CQC and those pertaining to Wales to Welsh Ministers. Subsection (2)(a) limits the scope of the CQC to England alone. The Minister has just made a commitment that he will seek to help the Committee as much as he can. What assessment has he made of the division of staff and intellectual property arising from that split? I hope that, as he and his officials are noting the process of these inquiries, the intellectual property rights will also be given proper consideration. They are an asset that is often overlooked but absolutely vital. Coming from a commercial background, I can say that intellectual property rights are often used most of the time in any transfer negotiation by way of friendly or hostile purchase.
Subject to the following provisions of clause 157, the Bill extends to both England and Wales. I hope that the Minister will have checked by the time we reach that clause that there is no conflict in the drafting. I put it no higher than that, but it is certainly worth checking.
Clause 4(2)(a) limits prescribed activities to those connected to health or social care—the definition of which we will debate under clause 5—
“in, or in relation to, England”.
Can the Minister tell the Committee the force of the phrase “in relation to”? As an MP whose constituency has a Welsh border and much of what is rather interestingly called “health tourism” across that border, I am interested in what protection the clause gives to my constituents who are treated and cared for in Wales—often very well, I have to say. Obviously, for many of my constituents, being treated in Wrexham Maelor hospital involves travelling a much shorter distance than would be involved in travelling even to the Countess of Chester hospital in the city of Chester.
What right of appeal, on behalf of my English constituents, does the clause give me, as their representative in the House? I have frequently attempted to ask the Secretary of State for Wales what happens if things go wrong for my constituents in a health or social care setting in Wales. He has immediately referred me to the First Minister of Wales, who has told me that I have no standing with him and he has absolutely no obligation to respond to me, and does not. Therefore, I have no way of representing my constituents through the devolved powers, which in effect create a form of devolved apartheid when it comes to accountability.
What impact will this provision have on NHS patients seeking health care abroad—I am not now talking just about going across borders within the United Kingdom—under the EU’s attempt to open up the health care market? The Minister and all his colleagues will be very conscious of the recent debate that has been had, mainly in the press, because the EU was supposed to publish draft legislation on 20 December just gone, but has delayed it until early 2008, so we are in live time. That is in the light of anger from, among others, our very own British Ministers. We await that publication with bated breath. It will be absolutely germane to this part of the Bill and the way in which the Bill can operate.
The clause also, rightly, prevents the CQC from encroaching on the role of Ofsted in the inspection of children’s services. Ofsted inspects, among others things, children’s homes and residential special schools. Can the Minister confirm that this provision will not impact on the commission’s ability to report on children and young people being treated on adult mental health wards? As he is well aware, that is a scandal that continues to persist under this Government. Given in particular the recent report on learning difficulties services published by the Healthcare Commission, what will he do to encourage close working between the two bodies in terms of service users, providers and individual staff in the sector?
In relation to clause 4(3), I hope that the Minister will give us an answer as to why he has decided to enshrine these three aspects explicitly in the Bill. It is not an exclusive definition of “connected with”, but it seems to particularise when the rest is left to more generic definition. What assessment has he made of the division of staff and intellectual property arising from the division of the MHAC? Given that the clause applies to England and Wales, should subsection (2)(a) reflect that? What does “in relation to” mean? Will Ofsted and the CQC work together? Why has he sought to define, although not exclusively, “connected with” in the terms outlined? Those are the questions that I hope he will seek to address as we consider the clause.
Mr. Bradshaw: This may not be my job, but I slightly flinched at the hon. Gentleman’s use of the term apartheid to describe some of the complexities that have arisen from the democratic decisions taken in this country to grant devolution to Wales, but I will leave that issue with him. Apartheid, in my view, was a despicable, racist-based policy, deliberately implemented by the nationalist Government in South Africa. It is not an appropriate term to refer to these complexities.
Mr. O'Brien: I was born in east Africa, and therefore had to live through and survive and challenge the whole of the apartheid approach, but the Minister will be aware that the derivation of the word has nothing to do with racism. It is to do with there being two different sides of a similar issue and it was then hijacked to have a meaning in political terms, which is what he might have described. He is no better advocate than I am for being anti-apartheid in the sense that the term was used in South Africa, but I was using the term here in its genuine rather than ascribed form.
Mr. Bradshaw: I take the hon. Gentleman’s point, but I have noticed that a number of Conservative Members use the term apartheid to describe the cross-border complexities caused by devolution. I ask him to bear in mind how the use of that term would come across to most South Africans.
The clause allows regulations to be made to define the activities that need to be registered with the Care Quality Commission. That will be carried out through regulations, so the list of regulated activities can be revised as new models of service provision evolve. This is particularly important, so I intend to spend a little time outlining it.
We want to encourage flexible and innovative ways of delivering services to be developed. I do not want the registration system to be a barrier to that. Ofsted is responsible for regulating children’s social care. To avoid the possibility of services currently registered with Ofsted having to register twice, the clause specifically excludes any services that are registered with Ofsted from the definition of “regulated activity”, but of course they will have to work closely together.
We will be consulting very soon on the activities that are to be regulated by the Care Quality Commission. We expect that most service providers currently regulated by the Healthcare Commission or the Commission for Social Care Inspection will be required to register. These would include independent sector health care providers and providers of adult social care that are currently required to register. For the first time, NHS trusts—including ambulance trusts—NHS foundation trusts, and primary care community services will also need to register. Under the current arrangements, because NHS care is regulated and inspected differently from other services, it is not always easy for patients to compare NHS services with those of other providers. It also creates a barrier to joint working and means that private providers providing some statutory services have to comply with two regimes. Creating a unified system of regulation across health and adult social care providers from all sectors will create a fairer playing field. It will also assure the general public that whichever provider they use, all services will be required to meet the same national safety and quality requirements, and will be subject to the same enforcement regime if they fail to do so.
In respect of the hon. Gentleman’s question on assets, as I said in my answer to a previous question, I will include whatever information we can give the Committee on assets in writing.
On his question about cross-border issues and the term “in relation to”, I suspect—I will confirm this in writing—that this may include examples in which the service is provided in Wales, although it is commissioned in England. That may be an example where we would have to use the phrase “in relation to English”, but I will happily confirm that in writing.
Question put and agreed to.
Clause 4 ordered to stand part of the Bill.
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