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Lord Clement-Jones: My Lords, I support Amendment No. 23, moved by the noble Earl, Lord Howe. We welcome government Amendment No. 22 so far as it goes but, like the noble Earl, we believe that it does not go far enough. We make the same distinction as did the noble Earl between reports and referrals, referrals being a much more active process requiring a reply from the body to which the referral has been made.
The noble Earl, Lord Howe, put a gloss on the Minister's reply on Report. I shall not repeat the points that he made about care trusts, but he did not put a gloss on some of the Minister's other replies, which it may be helpful for me to take the Minister through. First, care trusts should be specified because there is doubt about whether they are included.
Secondly, the Minister said of subsection (1) of the new clause that it would be only "cosmetic" to include the Secretary of State under the duty to consult because of shifting the balance of power, and so on and so forth. The reason for including the Secretary of State is so that he is forced to put in place appropriate arrangements for consultation on specialised or regional services. The noble Lord, Lord Filkin, did not deal with that angle. For example, as the noble Earl, Lord Howe, said, it would be unrealistic to expect a strategic health authority to consult on its own demise if that was proposed by the Secretary of State. That is a strong point that I re-emphasise.
The Minister said that subsection (2) was covered by the government amendment relating to consultation orders for strategic health authorities. He will note that subsection (2) of this new clause goes considerably wider. The noble Earl, Lord Howe, touched on subsection (3). I shall not repeat what he said.
On Report, the Minister said of subsection (4) and the issue of OSCs not having the right to refer:
- "We are considering how best to provide for this within the framework of Section 7 of the Health and Social Care Act".
- "we shall be able to guarantee that a secure referral mechanism exists within our provisions".—[Official Report, 30/4/02; col.636]
The Minister summarised Section 11 of the Health and Social Care Act 2001 as providing for people's views and concerns to be "fed into decisions". That is quite different from consultation on substantive issues.
So the Minister did not deal adequately with the points that I and the noble Earl, Lord Howe, raised. Several aspects of the new clause would be hugely beneficial to the Bill and I hope that he will take the time and trouble to respond to all of them.
6.15 p.m.
Lord Filkin: My Lords, as noble Lords have recognised, we dealt with one of the issues that the amendment attempts to address under Amendment No. 22. I hope that that does not raise too high an expectation of further concessions.
Our amendment gives OSCs an explicit power to refer matters of concern to the Secretary of State—as we said, to put the matter beyond doubt—and subsection (4) of the new clause is intended to strengthen the mechanism for getting the views of OSCs, among others, to the Secretary of State. However, there is no benefit in making the further changes suggested in subsection (4). In fact, to do so would overcomplicate and muddle the arrangements. I shall seek to explain why.
Amendment No. 22 did not deal with the other aspects of Amendment No. 23—namely, the changes to the duty on the NHS to make arrangements to consult and involve the public in its decisions. Again, the amendment is unnecessary. It is unnecessary to include care trusts because, as we have said several times, PCTs and NHS trusts are already listed and care trusts will be either PCTs or NHS trusts. They cannot be anything other than one of those two, so they are already explicitly caught and provided for in the way in which the noble Earl, Lord Howe, wants. They will already be covered by the references to PCTs and NHS trusts.
Secondly, with regard to the Secretary of State, shifting the balance of power to the front line means that responsibility for the planning development and delivery of services is now with the front line. It would be inconsistent then to place a duty on the Secretary of State when the duty is already in place for local bodies—those bodies with responsibility for the services and the relationship with local people to be able to carry out the involvement and consultation activity.
Section 11 of the Health and Social Care Act 2001, which was referred to, already places a duty on NHS bodies, including strategic health authorities, to consult on services for which they are responsible. Including the Secretary of State under that duty makes only a cosmetic difference.
Subsection (2) of the new clause relates to the Secretary of State consulting bodies representing local patients on the establishment orders of NHS bodies. As noble Lords will know, we have already amended the Bill to cover the consultation of relevant bodies on
the establishment orders of strategic health authorities. Subsection (3), which places a duty on strategic health authorities to consult before directing PCTs to undertake their statutory duties surely gives rise to major consultation overload. We would be in danger of so much consultation as to make the process meaningless.Although we recognise that the new clause attempts to clarify and rationalise the consultation arrangements, it goes far too far in its detail and perhaps muddles the arrangements already provided for.
The noble Earl, Lord Howe, spoke about how important it was that overview and scrutiny committees acted with vigour and argued that referrals should be mandatory. I find it hard to believe that the major local authorities—the 150 social services authorities, which are some of the most powerful local authorities in the land—would be inhibited about referring matters to the Secretary of State or elsewhere, if they felt that there was something wrong with healthcare provision or facilities in their area.
The noble Earl made a more substantial point about anxieties that local authorities might, at times, behave in a party political way that might inhibit the vigour of their response. There is no black-and-white answer to that problem. Even if we created a duty to refer, it would not necessarily be meaningful; people can refer things without putting much power into it. The local authorities will have noticed what happened in the case of Kidderminster Hospital and are more alert to the importance of taking seriously the concerns of the local public about health provision and do not think that they can behave along rather crude party lines. I am not necessarily implying that that was what Bromsgrove District Council did in that case.
There has been previous reference to overview and scrutiny committees and how they will develop. The general advice, as I recollect it, was that they should not be whipped. They should give fairly full representation to all political parties, and they will have failed if they fulfil their duties in the kind of party political or partisan way about which the noble Earl was concerned.
The question of whether strategic health authorities would consult about changes in PCT functions was mentioned. There will be no duty of consultation, as such, on the delegation of functions. However, if the shift of functions affects the development of the service and the way in which it is developed, the public will be consulted, under Section 11 of the Health and Social Care Act 2001. I hope that that gives noble Lords sufficient comfort.
For those reasons—reinforced by what we said today—we believe that there is no need for the amendment. It should not be pressed.
Earl Howe: My Lords, I thank the Minister for his response. He repeated many of the arguments deployed last time and said, in particular, that the amendment would give rise to consultation overload. I do not see things in the same light. Consultation is an
integral part of the quality agenda. It is integral to proper accountability in the system, which, to their credit, the Government say that they want to achieve.The overall trend in the Bill and in the Health and Social Care Act 2001 is to make the arrangements for consultation a good deal fuzzier. With CHCs, we have a clear, discernible process; what we are being given is more of a focus-group approach. I am not saying that focus groups do not have their merits. They are—or can be—useful devices. However, if legal duties to consult are lost and if the power of local communities to act against poor consultation or bad decisions is lost, the whole process will be reduced from a power to act to a power merely to talk. That is the background to the amendment. It is not superfluous.
The Minister said that paragraph (2) of the amendment was covered by the government amendment agreed to previously that relates to consultation orders for strategic health authorities. However, that paragraph of my amendment includes NHS trusts, PCTs and care trusts, which are, otherwise, missed out. It also provides for consultations on variations and revocations, not simply establishments. I do not share the Minister's view that it merely replicates the measures that have already been put in place.
In view of the hour, however, I shall not press the matter. The point has been made, and I do not feel that I can say any more. I thank noble Lords who contributed to the debate, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 27 [Complaints about regulatory bodies]:
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