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Baroness Gale: My Lords, I believe that it is important that annual reports are submitted and that there is accountability. But is it realistic for reports from all the forums—they could number a few hundred—to be submitted to Members of both Houses? Would the Members of both Houses want to receive reports from 200 forums and would they have the opportunity and the time to read through all those reports? I question the necessity for and practicality of the forums to report to both Houses. It may be more advantageous to have an overview of the forums' work and there may be a more appropriate way of reporting on the work of the forums to Parliament.

Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Baroness for raising the issue of annual reports. Subsection (2)(n) of Clause 18 provides the Secretary of State with a power to make regulations about the preparation and publication of patients' forums' reports, including their annual reports.

Consideration will be given as to whom forums should submit their annual reports, in addition to the bodies, including the Secretary of State, listed in Clause 17. We shall have to consider whether they should be submitted to the Houses of Parliament and whether they should be viewed more widely than that.

At this stage all I shall say is that I wonder whether the submission of what would be over 600 forums' reports every year to each MP would necessarily be a practical way of dealing with the matter. Surely, it would be better for forums to send their reports to MPs in their areas. Those are matters that we shall consider when we develop the regulations.

On Amendment No. 42, the noble Baroness knows my response. It is a matter for Parliament to decide how it will deal with the issues. It is not for us to write into the Bill the way in which Select Committees should conduct their business. I am confident that the current Select Committee system is well able to take care of scrutiny of the role of forums and the national commission. Of course, if in the future it were decided that a committee of your Lordships, of those in another place, or a joint Select Committee should be

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established specifically to deal with the work of patient and public involvement, we would ensure that all NHS bodies co-operated with such a committee.

Baroness Finlay of Llandaff: My Lords, I thank the Minister for his reply. When I drafted these amendments I was not able to predict that he might make an offer of a standing committee of patients forums in his response to the previous amendment, nor was I able to predict that that amendment would be carried and that patients' councils would be incorporated into the Bill. However, that answers the question about the large number of reports. Within either of those frameworks there would be only one report. I accept the assurances from the Minister that annual reports would certainly be looked at and my understanding is that there would be a need for such consolidated reports to come to Parliament. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 42 to 42B not moved.]

Clause 18 [Supplementary]:

Lord Clement-Jones moved Amendments Nos. 43 to 45:

    Page 23, line 16, after "premises," insert "and"

    Page 23, line 17, leave out "and staff"

    Page 23, line 26, after "by" insert "a Patients' Council,"

On Question, amendments agreed to.

Earl Howe moved Amendment No. 46:

    Page 23, line 27, after "Authority," insert "an overview and scrutiny committee or joint committee within the meaning of sections 7 (functions of overview and scrutiny committees), 8 (joint overview and scrutiny committees etc) and 10 (application to the City of London) of the Health and Social Care Act 2001 (c. 15),"

The noble Earl said: My Lords, Amendment No. 46 picks up a critical issue debated in Committee. I shall speak also to Amendments Nos. 47, 49 and 60. In Committee I pointed out that under the Bill as currently worded, overview and scrutiny committees of local authorities, to whom patients forums will refer matters of concern, have no specific duty to consider or to act upon such referrals. In my opinion, that is an important gap. I want to remind the House of some of the reasons for my concern.

Paragraph 1 of Schedule 7 to the National Health Service Act 1977 says that community health councils are under a duty,

    "(a) to represent the interests in the health service of the public in its district; and

    (b) to perform such other functions as may be conferred on it".

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The CHC regulations expand on that duty. At Regulation 17 a duty is placed on each CHC,

    "to keep under review the operation of the health service in its district, to make recommendations for the improvement of that service and to advise any health authority upon such matters relating to the health service within its district as the CHC thinks fit".

My key concern in bringing those words to your Lordships' attention is to ensure that once CHCs have been abolished and the new arrangements are in place, those new arrangements should be no less effective and no less robust than those they have superseded. Under the Health and Social Care Act, overview and scrutiny committees inherit from CHCs the power to scrutinise, but that is a power and not a duty. Some local authorities could, therefore, choose not to exercise that power, leaving the local community, after CHCs have gone, with no one at all scrutinising the NHS.

In Committee, the noble Lord, Lord Filkin, said that it was "almost inconceivable" that local authorities would not exercise their powers to scrutinise. Later he said,

    "it is most unlikely that they will not see them as important functions".—[Official Report, 11/4/02; col. 615.]

Yes, perhaps that is so, but there is no certainty about it. Many local authorities are concerned that no new money has been allocated to them to develop and to run their overview and scrutiny of health. In those circumstances it is not only conceivable but very likely that some local authorities will decline to use their power to scrutinise, or they will simply pay lip service to it. As I said in Committee, there are also concerns that party political interests may determine how, if at all, the scrutiny function is applied.

I am advised that in a recent case in Camden, the council scrutiny committee's concerns about a proposed NHS LIFT scheme were over-ruled by the council's executive following an intervention by the Secretary of State. In the light of that, perhaps the Minister can give some assurance that guidance will be issued recommending the non-use of the whip system in overview and scrutiny committees.

I hope that the Minister will be able to give a more encouraging reply than he did in Committee. I beg to move.

5.30 p.m.

Lord Clement-Jones: My Lords, I rise to speak briefly to the amendments, which we on these Benches strongly support. Of course, the best councils will do all that we want in acting on referrals and themselves referring, in the exercise of their overview and scrutiny role. I suspect that the example given by the noble Earl, Lord Howe, came from the edition of the Camden New Journal that I have read. It provides a salutary lesson that we cannot expect such overview and scrutiny inevitably to operate in the right way. That may have severe effects on local health services.

The amendments would tighten up the position and many councils would support them. Of course, there is always the argument that resource must follow for

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duties to be properly carried out, but that is an argument to be had when the duties are made mandatory, as the amendments provide.

Baroness Masham of Ilton: My Lords, if social services perform scrutiny, who will carry it out—members or officers? Will they have the interest and experience to consider poor equipment or dirty hospitals, say? It is important that those doing the job have an interest in it. If they are tied to social services, will they have an interest in the health service?

Lord Filkin: My Lords, I find the amendments difficult to understand in the context of the debate about measures for patient and public involvement. Noble Lords on both sides of the Chamber have mentioned the essential importance of independence in the system. We absolutely agree. That is why we have sought to make each element as independent as it needs to be for its specific functions. But the amendments would lay down direction on local authorities as to how they should fulfil their scrutiny function.

We do not think it appropriate to compel local government in the context of health scrutiny. We fundamentally believe that local people should be able to rely on their democratically elected representatives to make decisions that are in the best interests of local people.

Local authorities have recently been given a new clear and powerful role to promote the economic, social and environmental well-being of their area. That puts beyond doubt that that is the central function for local, democratically elected bodies as the only possible voice for their communities. That is why they will have a powerful role in overview and scrutiny committees—to oversee many aspects of the improvement of the health of their communities. That is an important and powerful part of the Bill. To turn round and seek in some way to tell them how to do that is a contradiction of principle. They should and must make their own decisions about what is most important to local people to be scrutinised—given that choices must always be made about what is scrutinised first, given limited time.

We have therefore placed duties in the right places to ensure that scrutiny powers are appropriate. We have placed clear and strong duties on the NHS to provide information and to consult OSCs. PCTs and others must provide information to an overview and scrutiny committee. NHS staff must, if required, give evidence to an overview and scrutiny committee. The Secretary of State must consider representations made by overview and scrutiny committees in the light of any comments that they wish to make on major decisions affecting the shape or form of health matters in their area.

Those amount to a substantial raft of powers for overview and scrutiny committees—which is absolutely right, as I am sure that noble Lords in all parts of the House recognise—to affirm the primacy of the local, democratically elected body in fulfilling those functions.

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Amendment No. 46 would give patients forums power to require information from local authority overview and scrutiny committees. We expect, hope and will certainly promote the idea that patients forums and overview and scrutiny committees work jointly and in harmony. In many cases, they will have a common interest, so we expect that patients forums would request views from overview and scrutiny committees. We certainly want to encourage good communication links between forums and overview and scrutiny committees, but to require them to do so in the draconian manner of the amendment is going too far.

We have already amended the Bill to give forums the power of referral to overview and scrutiny committees. That amendment was developed following extremely helpful discussions between the department and stakeholders, including the Association of Community Health Councils for England and Wales and patients forums. That amendment demonstrates that we recognise the need for overview and scrutiny committees to have robust information about patient experience available on which to base their decisions about what to scrutinise and when. Moreover, if they wish, they can second members of all patients forums onto overview and scrutiny committees.

To address the good question asked by the noble Baroness, Lady Masham, the overview and scrutiny committee will be a committee of councillors—elected members—serviced by officers. Those officers may include some from the social services department, but they will certainly not dominate, as the committees' remit, terms of reference and overview need to be substantially wider than considering the interconnection between social services functions and the NHS, important though that is.

Similarly, Amendment No. 47 is out of kilter with giving power to scrutinise the NHS to an independent body. We have said that local government must take a view on what action to take in respect of its responsibilities for the well-being of its community. If an overview and scrutiny committee believes a response or action to be appropriate, it is free to act or respond. Compelling an independent body from the centre is not appropriate. I must give the same response to Amendment No. 49. Should overview and scrutiny committees want to respond to patients forums they must be free to do so. We cannot justify contravening the principle of independent action.

I turn to Amendment No. 60. In the course of our discussion, I made it abundantly clear that we think compelling local authority overview and scrutiny committees through a statutory duty to scrutinise health services is not right. Noble Lords have recognised the need for independence.

In conclusion, and slightly more positively, I turn to what I think that the noble Earl, Lord Howe, is understandably seeking to ensure that we achieve. He said that overview and scrutiny committees should be no less effective than CHCs. I entirely agree—in fact, we hope that they will be substantially more effective than CHCs. While recognising the good work that has

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been done by many CHCs, none of us think that they have the power, status or influence to shift or shape health policy as powerfully as will a well-organised overview and scrutiny committee that gets hold of issues and stays with them year after year.

So the issue is not about writing a duty into the Bill. We can do that until the cows come home; I fear that it does not always mean that the world shifts its behaviour. What would it mean in practice if committees had to act on referrals? They would have to put it on a committee agenda, give some time to it and decide either to act or to take no action. We could not do much about that. I agree with the noble Earl, Lord Howe, that that would be hopeless.

We want to ensure that local government—or at least the 150 local authorities with the prime role for overview and scrutiny committees—takes its responsibility seriously. That will depend on how we promote and support the implementation of the committees, rather than whether we change one word for another in the Bill.

The noble Lord referred to money. As I said, the department has put in a bid for further resources in the comprehensive spending review. But if a local authority uses money as an argument, it will do so whatever money is provided.

I agree with the noble Lord about party political differences. It would be extremely regrettable if local government sought to behave in a highly partisan fashion about local health issues. We certainly do not want that. If I recollect correctly, the guidance given by the Department for Transport, Local Government and the Regions on overview and scrutiny committees says that generally they should not be whipped. They should consider matters on a cross-party basis—or, better still, a non-party basis—rather than settle them on a party whip.

The other issue, I suggest, is implementation. Therefore, it is extremely important that the department, the LGA and the NHS Confederation work effectively together at preparing local authorities for the expansion of a duty that some have already embraced in the past.

The consultation between the bodies—NHS, LGA and NHS Confederation—on the implementation guidance ended today. It will lead to important regulations which will be in draft and extensively consulted on. We shall not get this issue right instantly. It will also require a good deal of learning from good practice between the NHS and local government and across local government. Universities—and others—will be tracking the experience of overview and scrutiny committees and seeing where they are or are not working and considering how to make them better. The issue should be strongly promoted and distributed throughout local government. I am sure that the Government will want to play their modest part in that process.

I suggest that such implementation will not happen in six months, it will take no doubt several years of persistent work. The Government are committed to trying to make sure that it happens. We are heartened

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that the LGA and the NHS Confederation want to work with us. We pay credit to the community health councils which—despite recognising that the world is changing—are being supportive of this process of training and development in preparation for these new responsibilities. For those reasons, I suggest that the amendments are not necessary and can be better dealt with through other means.

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