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Lord Hunt of Kings Heath: I cannot go quite that far. However, I can say to the noble Lord that we intend the power to make regulations in respect of the control and discipline of children to cover all settings regulated by the commission. The Bill was drafted with the intention that regulations under Clause 20(1)(d) in relation to securing people's welfare should be sufficiently wide to allow provision in relation to the control and discipline of children. That would therefore give us all the necessary powers to ensure that such tight regulations are set in relation to such matters in any of the settings regulated by the national care standards commission where children are accommodated.

However, the noble Lord's amendment raises doubts about whether the Bill, as currently drafted, achieves that purpose. I am, therefore, very grateful to the noble Lord for raising this matter. We are currently considering this issue and intend to return with a government amendment in due course. We are particularly concerned that, as drafted, the Bill does not appear to give us the appropriate regulation-making powers in relation to hospices and other private healthcare facilities for children. On that basis, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Rix: With such an admission from the Minister, I cannot possibly press on with my

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amendment. I am delighted to beg leave to withdraw it and look forward to reading the Government's amendment when it is eventually tabled.

Amendment, by leave, withdrawn.

Lord Hunt of Kings Heath moved Amendment No. 68:

    Page 12, line 3, at end insert--

("(ba) imposing other requirements (in addition to those imposed by section 25 of the 1989 Act (use of accommodation for restricting liberty)) as to the placing of a child in accommodation provided for the purpose mentioned in paragraph (b), including a requirement to obtain the permission of any local authority who are looking after the child;").

On Question, amendment agreed to.

[Amendments Nos. 69 to 72 not moved.]

Clause 20, as amended, agreed to.

Clause 21 [National minimum standards]:

Lord Clement-Jones moved Amendment No. 73:

    Page 12, line 10, leave out ("appropriate Minister") and insert ("Commission").

The noble Lord said: This is a very straightforward amendment, which is designed simply to ensure that the commission is able to set minimum standards. In addition, it is also designed to elicit an assurance from the Minister that moves are already under way to prepare the "minimum standards" referred to in Clause 21.

As we discussed earlier in Committee, the commission does not have the right at present to create those minimum standards. The appropriate Minister currently has the right to do so. When we deal with a later amendment, we shall discuss what legal status the standards in Clause 21 have. If one looks carefully at the wording of the clause, one realises that the position seems to be rather shaky. However, be that as it may, the commission is the closest to the actual establishments and agencies that are being regulated. As such, it is extremely important that it should have the right to set out what those minimum standards should be. In Amendment No. 85 we set out in a more comprehensive way various other matters which apply to the setting out of minimum standards.

Such amendments are really designed to give the commission a much more proactive role, which is something that many noble Lords have sought to achieve during the passage of this Bill. They are also designed to ensure that the Minister will give us the assurance that those minimum standards are actually being put together currently and that they will be set in place. I beg to move.

7.15 p.m.

Lord Hunt of Kings Heath: I must confess that I was somewhat puzzled by the remarks made by the noble Lord, Lord Clement-Jones, because he did not seem to refer to the issue of whether the Minister or the commission should be responsible. Perhaps the noble Lord would care to say a few further words in that respect.

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Lord Clement-Jones: In terms of the amendment, I thought I said that the commission should be responsible simply because it is closer than the Minister to the regulation of the establishments and agencies involved. Therefore, it is entirely appropriate for the commission to be the regulator.

Lord Hunt of Kings Heath: I am most grateful to the noble Lord for that clarification. However, I fear that I must resist this set of amendments. The commission will, of course, be a powerful national body. It will have extensive responsibilities for regulating care services, maintaining standards, ensuring the protection of vulnerable children and adults, and encouraging improvements in the quality of provision. But it is not a policy-making body.

We believe that setting the national minimum standards involves key policy issues and that the responsibility should rest with Ministers. In developing the standards, for example, it will be essential, as already mentioned this evening, to consider most carefully the resource implications and the potential impact of those standards on providers. I believe that it is the Government who should take such questions into account.

Apart from those standards with a resource impact, there will be others that will cover very sensitive areas. We have already discussed the need for regulations covering the appropriate physical management of adults in care homes, where necessary. These are very difficult and sensitive issues and ones which, I believe, should be dealt with by Ministers rather than the commission.

I should point out to the noble Lord, Lord Clement-Jones, that the commission will have an important role to play in assisting in the formulation of those standards. It can, of course, advise the Government on any changes that it believes might be necessary and the Government will always listen most carefully to such representations. I rest my case.

Lord Clement-Jones: I thank the Minister for that reply. There is a good deal in what he says which we shall certainly consider. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 74 to 79 not moved.]

Earl Howe moved Amendment No. 80:

    Page 12, line 14, at end insert--

("( ) In preparing or amending the standards set out in the statements, the appropriate minister shall consult any persons whom he considers it appropriate to consult.").

The noble Earl said: In moving the above amendment, I shall speak also to Amendments Nos. 81 and 82. I start with some warm words for the Government's aims. No one can be against the idea of raising standards. It is a self-evidently desirable objective to which the Bill rightly devotes a great deal of attention. A perfectly natural extension of that aim is the thought that there should be standards of care below which no establishment should be allowed to

13 Jan 2000 : Column 813

fall. That, in turn, begs two questions: first, what should those standards be; and, secondly, how are they best measured?

I do not believe that we can answer either of those two questions properly without acknowledging two facts. The first is that we are where we are. If we take the case of care homes, we may feel that some measurable features of some care homes fall short of what we should like to see. But these are homes where people already live; which have been approved by the relevant local authority for sometimes many years; and where, most importantly, in many--if not most--instances the residents are happy and well cared for.

Secondly, we need to acknowledge that changes to the physical fabric of an establishment or to staffing ratios carry with them a cost. If such changes are so important as to warrant being enforced by law, they need to be justified by arguments that everyone can accept as being robust. We also need to be quite clear who is going to pay.

I do not doubt that the array of minimum standards, such as is set out in the document Fit for the Future? should play an important role in identifying the kinds of matters on which we should be focusing in terms of easily measurable features. But it would be absolute folly--and morally quite wrong--if we were to treat such a document as a formal check-list that required 100 per cent observance. Not only is such a thing impossible if half of the elderly population in care are not to be deprived of their homes, but it would also serve, if I may so put it, to lose the plot. Standards of care in a care home are to be judged by more than simply physical features. We should therefore be extremely cautious in laying down mandatory, prescriptive rules unless there is no argument that they are essential and readily achievable.

What is it, more than anything else, that has prompted this Bill? It is surely the desire to stamp out abuse of vulnerable people. It is not abuse of anyone to ask them to sleep in a room measuring 9.9 square metres. It is not abuse if there happen not to be three double sockets in the room, or if the home does not possess a sluice. Any changes of this kind that are enforced, at any rate on existing care homes, have to be justified in terms of what is demonstrably harmful.

If we exclude for a moment measures to prevent what is demonstrably harmful, what is at stake here is people's personal choice. Some of us may find it odd that there are elderly people in Lancashire who enjoy being looked after in an environment that more closely resembles a boarding-house than a hotel. But there are hundreds of rooms in that part of the world licensed at 80 square feet. Are we now to say that that is unacceptable? Are we to say that there is no place for flexibility of judgment that recognises local practices and preferences? I hope not.

The cost of Fit for the Future?, were it all to be implemented, is, I fear, a sum that we would find horrifying, if we knew it. We do not know it because Fit for the Future? is currently only a set of proposals and the regulatory impact assessment of the Bill cannot take account of it. However, I can tell the

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Committee that the banks are taking account of it. As we sit here, there are care homes going into receivership as a result of what the banks perceive to be a tidal wave of regulation about to engulf the sector. In Brighton and Hove and in Hertfordshire, there is now an under-provision of nursing home beds, which was not the case a year ago.

There are many who think that the contraction of the sector--unless the Government take action to halt it--will be evident on two fronts: the closure of small, independent homes, for whom an all-purpose set of minimum standards will make no allowance; and the closure of local authority homes, because local authorities, as first-time registrants, will have an even bigger mountain to climb in terms of room sizes. The net effect will be to drive care provision into the hands of large, independent providers. Is that really what the Government want? If they do not want it, they should say now that minimum standards will be non-binding on the commission and that there will be room for flexibility and discretion where good reason exists. They should say also that they are not oblivious to the issue of costs. An earnest of such a statement would be to undertake that fees to care homes will be increased to reflect the cost of upgrading. That has to be a natural and fair consequence of what the Government now propose. Can the Minister provide such an undertaking today?

I return to Fit for the Future? and the many sets of draft minimum standards that are to appear over the next few months. We need reassurance that there will be full consultation on all such proposals with those who are professionally involved in each case. We need to be reassured that those people will be respected and listened to. I believe that it is wholly reasonable, as an additional safeguard, for there to be automatic parliamentary scrutiny of any minimum standards that receive ministerial approval, with the possibility left open for debate under the negative resolution procedure.

Clause 21 allows the Minister carte blanche to publish statements and amended statements whenever he considers it appropriate to do so. That cannot be right. It cannot be sensible to let Ministers in this, or indeed any government, move the goalposts for a sector of the care industry without full debate on any adverse implications. I hope that the Committee will accept that I am not negative on the concept of national minimum standards, but I am a realist. I beg to move.

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