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Lord Clement-Jones: My Lords, I rise to give partial support to this group of amendments. In particular, I think that Amendment No. 16 has quite a lot to commend it in terms of seeking to ensure that overview and scrutiny committees are added to the list of bodies to which patients forums will provide information. We on these Benches believe that it will be essential for overview and scrutiny committees to receive information from patients forums in order to inform their scrutiny role. Patients forums will have useful information about the performance of individual NHS trusts and their patients' experience. We are not so convinced about the changing of a power to a duty, but the position is somewhat complicated by the Minister's previous statements about the duty already being contained in legislation. Indeed, I suspect that the LGA is in some confusion as to whether it is a duty or a power.
Our nervousness about the possibility of turning the power into a duty is based on whether the additional resources would be made available. We believe that local government is making efforts to ensure that there is effective overview and scrutiny. However, it is early days yet. We believe that there will be an opportunity in future health Bills—we are quite sure that the House will be considering a number of health Bills before too long—to tweak the legislation to ensure that, if local government is falling down in overview and scrutiny, we can rectify the matter. Nevertheless, there is nervousness about whether resources will be available if that power is turned into a duty.
We therefore offer partial support for Amendment No. 16. We also rather regret the way in which the groupings have been made, particularly as regards Amendment No. 24. We are therefore prepared to accept Amendment No. 16, but not the other amendments in this group.
Lord Filkin: My Lords, I shall speak first to government Amendment No. 22.
As I have previously stated, we are committed to ensuring a robust framework representing the public's concerns to government where there is inadequate consultation over major changes and where there are concerns over the merits of proposals for change. Our lawyers have confirmed that there could be some ambiguity in the provisions in the Local Government Act, as amended by the Health and Social Care Act 2001, about OSCs and their ability to refer matters to the Secretary of State for Health. In case any local authority was uncertain about whether it has the power to stick a stamp on an envelope and send its views to the Secretary of State, we think it appropriate to remove that doubt by amending the relevant provisions of the Health and Social Care Act. Amendment No. 22 does just that.
Amendment No. 22 makes it explicit that OSCs may make reports and recommendations to "the relevant authority"—the Secretary of State, in relation to England—thereby ensuring the referral framework that we think is necessary. The detail for referrals will be prescribed in regulations as is the case with the current arrangements for community health councils. I hope the House will agree that this amendment is an important one and that it is right to ensure that there is no doubt about this fundamental element of the PPI system. For OSCs to be truly powerful in delivering local accountability, they need to have the power to trigger action at Secretary of State-level if necessary. I am sure that they will do so.
I turn to Amendment No. 24. I have on a number of occasions made it clear that we think that it is not right to compel local authority overview and scrutiny committees to scrutinise health services through a statutory duty. Not only would that be completely out of kilter with the existing role of OSCs in other areas, but, more importantly and more critically, it is wrong to compel a democratically elected independent body to do something in this particular circumstance. I think that the implication of the amendment is that noble Lords have some doubts as to whether councillors would carry out one of their key roles—that of local accountability. However, the health of the population will be a key concern for overview and scrutiny committees and their constituents as decisions affecting people's health have a direct impact on the well-being of the people who elected them. As elected representatives, they will be keen to be seen to be addressing issues that matter to their electorate. If they do not, one would expect them to suffer the consequences.
For this reason, the decision whether to scrutinise the NHS must rest with local people and their representatives. Given the diversity of Britain, the
breadth of health issues, and the fact that judgments will have to be made about authorities, simply imposing a duty—which is what I think the noble Earl, Lord Howe, wishes, and I respect his reasons for advocating it—would leave open massive issues about which matters the OSCs should examine at any given time. Each year they would have to decide where scrutiny was most needed. In practice, no one can do everything all at once.I turn to some of the legal issues raised by the noble Earl, Lord Howe. I believe that I referred to both a "role" and a "responsibility". I also grant that it was not at all foolish to infer that that implied a duty rather than a power. Under Section 2 of the Local Government Act 2000, the local authority has a power to do anything it considers likely to achieve the promotion or improvement of the social, economic or environmental well-being of its area. Section 4 goes further and says that the local authority must prepare a strategy for promoting or improving the economic, social and environmental well-being of its area. There is nothing to prescribe what a local authority must consider in developing the strategy under Section 4. However, in practice and in almost all circumstances, it will develop the strategy in collaboration with others. I am sure that that has been the thrust of government advice to local authorities and to PCTs. It is therefore reasonable to expect that this will involve local authorities in considering health matters.
The noble Earl, Lord Howe, asked about government advice to local authorities on preparing the strategies. Off the cuff I cannot recollect that. I am certain that such advice has already been given. Whether it includes advice explicitly about liaison with the health service I do not know but we shall check that. In any event, were it not to do so, it is a point that we would consider for future issues of such guidance.
The Local Government Act 2000 goes further. Section 21(2) gives overview and scrutiny committees a broad advisory role in relation to functions of the whole authority and matters affecting the locality. OSCs have the power to review, scrutinise and make reports and recommendations in relation to matters set out in Section 21(2). By virtue of Section 7 of the Health and Social Care Act 2001, the power of the OSC includes a power to review, scrutinise and make reports and recommendations on matters relating to health.
The noble Lord also referred to concerns about implementation. We are currently halfway through a national consultation on the policy framework. Draft regulations and guidance will be prepared during the summer. We shall consult on those around September. It is envisaged that the new provisions will come into force in late 2002 with a full training and implementation programme to assist the roll-out. CHCs in particular are to be involved in the development of the implementation plan.
With regard to the view of local government, the noble Lord, Lord Clement-Jones, may have mentioned this matter previously but the LGA, in briefing it circulated when the Bill was in Committee,
recognised the need for OSCs to carry out health scrutiny—which I hope gives some comfort to the noble Earl, Lord Howe—but did not want this power to be a duty. I believe that I signalled that issues of resources would form part of the discussions and negotiations between the LGA and central government in terms of the level of expenditure and grant that would be considered appropriate in future.I refer to the dalliance of the noble Lord, Lord Clement-Jones, with Amendment No. 16, with regard to whether OSCs should have a duty to give information to patients forums. One hopes that they will so behave. However, if we are resistant to imposing a duty of the type that the noble Earl, Lord Howe, suggests, the logic is that we would also resist imposing a duty on them with regard to giving information to patients forums. That measure will occur in practice if local government and the health service promote it vigorously and learn from experience and try to learn from good practice in local authorities that do that well. That is what needs to happen. I do not think that changing the words in the Bill would make a fundamental difference to that. For those reasons, we resist Amendments Nos. 16, 17 and 18 while standing four square with the noble Lord and the noble Earl as regards the importance of making sure that local government seizes this significant role and tries to ensure that it is carried out to the benefit of the public.
5.30 p.m.
Earl Howe: My Lords, the noble Lord is always courteous and helpful in his responses and I am grateful to him on this occasion as on others. He made two comments that I considered particularly helpful. First, he referred to Section 21 of the Local Government Act 2000. I understood him to say that that section contains a power to scrutinise health services. I was not aware of that and it is a helpful clarification. Secondly, the noble Lord helpfully referred to guidance to local authorities. I am grateful for his undertaking to look again at what guidance has been issued.
I am sorry obviously that my arguments have not won the day. The argument with regard to imposing duties on local authorities is perhaps a stronger one than the noble Lord would have us think. It is interesting that the Greater London Authority Act 1999 has a provision at Section 34 to impose a duty on the GLA to exercise all its powers in a way best calculated to promote the health of Londoners. I am not sure why there is thought to be such a difference of principle as regards this Bill and as regards a general duty for local authorities. However, we have made progress on that issue. I am grateful for the noble Lord's comments.
I welcome government Amendment No. 22. It comes rather at the eleventh hour, but better late than never. I shall have more to say about that amendment later in today's proceedings. I am disappointed that it is framed in the way that it is as I think that it could be stronger. It seems to me that it is not the same to say that a local authority can make reports to the Secretary
of State as to say that it has a right of referral. A right of referral is a much more robust and clearer arrangement. The matter remains a little wishy-washy. I accept gratefully what has been offered—I certainly do not object to what the Government propose—but I shall return to the matter later. I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
[Amendments Nos. 17 and 18 not moved.]
Clause 20 [The Commission for Patient and Public Involvement in Health]:
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