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Budget (Northern Ireland) Order 2003

7.39 p.m.

Lord Williams of Mostyn: My Lords, I beg to move the first Motion standing in my name on the Order Paper.

Moved, That the draft order laid before the House on 28th January be approved.—(Lord Williams of Mostyn.)

On Question, Motion agreed to.

Energy (Northern Ireland) Order 2003

Lord Williams of Mostyn: My Lords, I beg to move the second Motion standing in my name on the Order Paper.

Moved, That the draft Energy (Northern Ireland) Order 2003 laid before the House on 23rd January be approved.—(Lord Williams of Mostyn.)

On Question, Motion agreed to.

Housing (Northern Ireland) Order 2003

Lord Williams of Mostyn: My Lords, I beg to move the Motion standing in my name on the Order Paper.

Moved, That the draft Housing (Northern Ireland) Order 2003 laid before the House on 20th January be approved.—(Lord Williams of Mostyn.)

Lord Brooke of Sutton Mandeville: My Lords, as the noble and learned Lord knows, I was unable to attend the Grand Committee that debated the order. I had an outstanding question which I put to him this morning in writing. I would have raised it this evening if he had not replied in the interim. I thank him most warmly for the courtesy and comprehensiveness of his reply. The only loss out of the exchange is that any PhD student writing a thesis on housing in Northern Ireland between 1970 and 2005 will now not know what my question and the Lord Privy Seal's answer to it were.

Lord Williams of Mostyn: My Lords, I am grateful for the noble Lord's courtesy. If there is a PhD thesis lurking, I shall incorporate it into a government dossier.

On Question, Motion agreed to.

Education and Libraries (Northern Ireland) Order 2003

Lord Williams of Mostyn: My Lords, I beg to move this Motion standing in my name on the Order Paper.

Moved, That the draft Education and Libraries (Northern Ireland) Order 2003 laid before the House on 7th January be approved.—(Lord Williams of Mostyn.)

On Question, Motion agreed to.

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Planning (Amendment) (Northern Ireland) Order 2003

Lord Williams of Mostyn: My Lords, I beg to move the Motion standing in my name on the Order Paper.

Moved, That the draft Planning (Amendment) (Northern Ireland) Order 2003 laid before the House on 16th January be approved.—(Lord Williams of Mostyn.)

On Question, Motion agreed to.

Commission for Patient and Public Involvement in Health (Functions) Regulations 2002

7.42 p.m.

Earl Howe rose to move to resolve, That this House calls on Her Majesty's Government to revoke the regulations laid before the House on 5th December 2002 (S.I. 2002/3007).

The noble Earl said: My Lords, let me begin, if I may, with a health warning. When I tabled the Motions more than a fortnight ago, the Government had not yet made their announcement about the abolition date for community health councils. We now know that CHCs are to disappear on 1st September.

When the Minister came to the House last week to answer my Private Notice Question about the matter, I and others made clear our dismay that the assurances we received from him last year about a seamless transition from the old arrangements to the new, and about prior consultation with stakeholders, had in the event counted for nothing. The abandonment of ministerial undertakings, on the strength of which amendments to last year's legislation were withdrawn, is an extremely serious matter. It is no good for the noble Lord, Lord Hunt, to say, as he did last week, that in the end it is for Ministers to take decisions. Ministers do take decisions, but they should also abide by the assurances that they have previously given.

On the substance of the issue it is, for me, unacceptable that in some areas of the country after 1st September there is likely to be no organisation with a statutory right to inspect the NHS, and that as a result parts of the health service will not be monitored next winter at all. There will be no patient voice on NHS boards, no patient perspective brought to NHS decisions and no patient perspective on public consultations.

I am not sure whether the Minister is prepared to acknowledge that accountability vacuum explicitly, because so far he has not done so. I should like him to comment on it tonight. Every month, some 11,700 patients make a complaint against the NHS. I therefore have to ask: is ICAS to be fully up and running by 1st September or not? If it is not, large numbers of patients will go without the assistance that they need for an indefinite period. Again, that is simply not acceptable, and not in accordance with either the letter or the spirit of the undertakings given by Ministers to Parliament.

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The noble Lord, Lord Hunt, is trusted and respected in this House, but I am sure that he will see that we cannot perform our function effectively as a revising Chamber if we constantly find ourselves doubting the validity of the assurances that we receive from Ministers. It will lead to mayhem.

According to the Minister's statement last week, the abolition date for CHCs was chosen because CHCs are losing staff and membership at a rapid rate. I do not know where the Minister's information has come from about the haemorrhaging of staff, because I have been told that the loss of members and volunteers is not happening on any great scale. If staff are leaving CHCs, there is one simple reason: uncertainty combined with a lack of communication. There has been an inordinate delay by the Government in announcing when CHCs would cease to exist. Had the whole exercise been handled more collaboratively and had the Government taken the trouble to ensure that staff and members of CHCs felt wanted and needed, we would not be facing such difficulties.

It is absolutely certain that in areas where patients forums are unlikely to be in place by 1st September there will be a mass melting away of key people. Why should anyone bother to stay? Indeed, anyone with unused holiday entitlement will feel that they may as well take it in August, which would mean that CHCs effectively cease to function at the end of July. Have the Government considered that and do they care?

Against that background we now have to consider the three regulations. I turn first to the Commission for Patient and Public Involvement in Health (Functions) Regulations 2002. During the passage of the National Health Service Reform and Health Care Professions Act we discussed the extent to which the commission would and should be independent of government in its day to day work if it were truly to carry out its job, which is to represent the interests of patients and the public and to hold the NHS to account.

In Regulation 2(1) relating to the commission's functions, there is a requirement for the commission to prepare a work programme setting out its activity for the following year. It is surprising and disappointing to see not only that that work programme has to be approved by the Secretary of State, but also that the Secretary of State has the right to vary the work programme as he or she may determine.

It must be of fundamental importance that the commission should be free to deal with major health related issues as it sees fit without political interference. The involvement of the Secretary of State in determining the work programme in my view is inconsistent with real independence. I hope that the Minister will comment on that because it casts considerable doubt on the Government's previous assurances that the commission will shift the balance of power in the NHS in favour of patients and the public. The way the regulations read suggests on the contrary that the balance of power will be shifted decisively to the Secretary of State.

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Furthermore, the commission's ability to take on major health issues throughout the year as they arise should not be stifled or limited in any way. Yet once again we see in Regulation 2(4)(a) that any variations of the work programme must be agreed by the Secretary of State. How is that provision consistent with freedom of action and flexibility? The independence of the new arrangement was something about which the Minister assured us. What status do those assurances have today? What about the ability of the commission to be flexible and responsive? We can well envisage that some issues of importance may be brought to the commission's attention by patients forums; indeed, the whole point of the commission is that it should be influenced by what patients forums find locally.

Are the regulations saying, as they appear to in paragraph 2(2)(b), that the only way in which the commission can respond to such concerns is by picking them up from the annual reports of patients forums and incorporating them into its work programmes? Are we to understand that the Secretary of State has a veto on whether such matters are investigated? That is hardly the model of a responsive patient-centred and independent organisation. What if we were faced with another Bristol heart hospital situation or another Alder Hey? Would it take 18 months before the commission was able to ask permission of the Government to look into the matter?

After all the warm words of the Minister during the passage of the Bill I am frankly staggered that the regulations should now say the opposite of what we understood to be in prospect. I am beginning to believe that all the assurances given by the Government on patient and public involvement were merely devices to pacify the critics and to ram the legislation through Parliament.

Let us look at ICAS. In Regulation 4 of the functions regulations I might have expected to see ICAS included as one of the bodies prescribed for Section 20(2)(b) of the Act because ICAS will be the key body for dealing with complaints made by patients and the public. The fact that it is not there may be of greater significance than it appears. I would like the explicit assurance of the Minister that there is no question of abandoning the idea of ICAS and that ICAS will be fully established on or by 1st September.

It has been suggested to me—the Minister himself hinted at it during his replies to the PNQ last week—that the PALS service may be presented as a substitute for ICAS. If so, it is a matter of very great concern to me. PALS can be very useful, but we all know that they are not independent of the NHS, nor in many trusts do they exist at all. We were told explicitly by Ministers that every PCT patients forum would have staff to commission or provide independent support for individuals to make a complaint. Does that commitment still stand? ICAS services for NHS trusts must begin immediately after the dissolution of CHCs and as soon as possible after PCT patients forums are set up.

I ask the Minister to confirm that the one-stop shop approach, about which we debated long and hard in this Chamber, has not been abandoned or watered

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down. Will there be a one-stop shop in every PCT to enable patients and the public to get effective and easy access to the new system by 1st September? We were told by Ministers that there would be over 300 patients forum offices across England. Is that still the plan?

At the root of these doubts is of course the question of funding. I have voiced my concern on a number of previous occasions that there may not be enough money on the table to set up properly staffed patients forums in every PCT and NHS trust. The Government's silence on that issue is alarming. On 10th December the Minister said that he would write to me "shortly" on the matter. He has not yet done so. Will the Government publish a detailed funding breakdown for the commission explaining how the agreed levels of funding match the designated functions of the new bodies? I hope the answer to that will be yes, and soon.

If the new arrangements are to work one thing above all needs to happen, which is that the skills and knowledge of CHC staff and members are harnessed and directed appropriately. There simply is no other group of staff with comparable expertise. There are currently 700 staff to support 184 CHCs. I understand that these individuals have not been offered TUPE arrangements into the new system. What are the Government's intentions on that matter? The best of these people must be transferred into the new system to get it running smoothly and effectively. We also received undertakings to that effect. Yet the commission's current plans suggest that the transfer of expert CHC staff to patients forums may not happen at all. That only compounds my apprehension that a smooth transfer to the new system will not happen either.

The answers we received last week from the Minister all pointed one way: to a significant weakening of patient and public involvement once CHCs have been abolished. Contrary to previous undertakings, we now know that there will be gaps in the system; and that those gaps may well last for several months. But gaps will appear in other ways as well.

At patients forum level, the delivery of a service will depend on the availability of appropriate numbers of staff and volunteers. My understanding is that in order to support patients forums the commission plans to set up formal partnerships with local networks. Those partnerships are expected to consist of consortia of voluntary sector bodies or other local groups, and each partner will support a number of patients forums by drawing on the local networks and knowledge within the community. I must ask the Minister how those arrangements square with the previous undertakings of Ministers, that the commission would employ and appoint staff to man patients forums? Will the commission do that or is this yet another assurance that has been jettisoned?

Local networks are not a reassuring concept. We debated, and I thought disposed of, the idea of local networks when the Bill was passing through the House. What is the Minister's level of confidence that such arrangements will work? Looking at the country

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as a whole, the coverage and quality of the voluntary sector is patchy and uneven, yet patients forums are supposed to operate to a universal standard.

How are outsourced networks supposed to be a substitute for in-house staff? How can one use voluntary organisations to monitor services when many of them are providers of services as well? How can one avoid conflicts of interest if an organisation is asked to comment on changes that will bring about cuts to its own income? It is not tenable. It is ridiculous. The public and patients will be the losers.

A piece in the jigsaw of patient and public involvement is overview and scrutiny committees. When she was the responsible Minister, Hazel Blears, said:

    "A key principle for this government is the right of the public to expect its concerns over major changes to health services to be expressed through a formal statutory process".

I have to say that is yet another instance of ministerial words sounding pretty hollow. OSCs were the mechanism chosen by the Government to fulfil the role of representing the public's views on major changes. However, what have we got?

When the Bill was going through this House, the noble Lord, Lord Hunt, steadfastly resisted the suggestion that local authorities should be obliged to undertake scrutiny of the NHS. They have merely been given a power to do so. In the first place, it is more than possible that some areas may be left without any scrutiny at this level. If there is no health OSC, it will not be possible to oblige an NHS trust to undertake a statutory consultation because there will be no body for it to consult.

The duty to consult under Section 7 of the Health and Social Care Act 2001 would be legally unenforceable. Even where an OSC does exist, Regulation 3 does nothing more than enable it to make reports and recommendations to local NHS bodies. It does not oblige it to do so. Contrary to what Hazel Blears implied, there would be nothing that a local community could do if it wanted an OSC to protect the public interest in a particular way on some health issue.

Patients forums have no right to demand a consultation because they will not be statutory consultees. If we read on, we find in Regulation 4(2) a most extraordinary exclusion. OSCs are not to be consulted by the NHS on the establishment or dissolution of NHS trusts or PCTs. Why on earth is that? Community health councils currently have the right to be consulted on such matters. The establishment or dissolution of a PCT or acute trust is likely to have a major impact on provision and access to services. The loss of the powers held by CHCs is irrational, onerous for an OSC and very damaging to the rights of patients.

Regulation 4(4) places no time limit on the length of a consultation. Under the present system, bodies that are consulted must be given a reasonable time for consultation, which is usually three months. I am concerned because NHS bodies in a hurry may want to consult quickly—perhaps very quickly. That should not be permitted. The local community must be given

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a reasonable chance to assimilate the proposals and express its views. Will the Government think again about that?

The net result is that Section 7 of the Health and Social Care Act 2001, which provides the legal underpinning for OSCs, is likely to result not in an enhancement of local accountability but in a diminution as regards consulting on substantial variations in the NHS. What action will the Minister take to prove me wrong? In particular, if a local authority fails to set up an OSC, what mechanism can be invoked to enable local objections to a major variation in health services to be registered with the reconfiguration panel? Is there to be such a mechanism? And where an OSC does exist, what performance management levers are there to ensure that it does its job as it should?

I tabled the Motions to protest in the strongest terms at what the Government now appear to be doing. I strongly suspect that they are starving the new system of the necessary funds and therefore of the necessary personnel and offices. The Government are not committed, as they said they were, to a smooth transition from the old system to the new. They are not committed to the independence of the commission. Nor apparently are they concerned that the new organisations, once in place, will be able to perform their functions effectively.

That, in a nutshell, is the list of charges against the Government. It is a very grave list and one is tempted to conclude that the whole system is being set up to fail. The credibility of Ministers is really on the line. I beg to move.

Moved, That this House calls on Her Majesty's Government to revoke the regulations laid before the House on 5th December 2002 (S.I. 2002/3007).—(Earl Howe.)

8 p.m.

Lord Clement-Jones: My Lords, I congratulate the noble Earl, Lord Howe, on securing the debate and on the high quality of his forensic deconstruction of the orders and the current state of play as regards patient consultation.

There is growing suspicion that, despite the pledges that they gave and the defeats that they suffered during the passage of the National Health Service Reform and Health Care Professions Act 2002, the Government are now engaged in a cynical exercise to use the current legislation to put into effect the scheme that they wanted all along but about which they failed to persuade Parliament.

I shall not cover the same ground as the noble Earl, Lord Howe; there is enough evidence to fill several debates, let alone today's. First, let us examine the issue of independence. I share the noble Earl's worries about the work programme being subject to the Secretary of State's approval and that he may vary it. Those requirements fundamentally undermine the commission's independence.

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I remind your Lordships of our debates on the question of independence on Schedule 6 to the parent Act last year. The Minister gave us specific assurances on that score. He said:

    "The independence of the system for patient and public involvement is critical to its success".—[Official Report, 21/01/02; col. 355.]

When we were discussing direction-making powers under the schedule, he said:

    "I understand why noble Lords may believe that a direction-making power might diminish the independence of the commission, but in a sense we must return to our debates yesterday: it is not envisaged that that direction-making power will be one that will come into play on a frequent basis".—[Official Report, 30/04/02; col. 629.]

What is this but effectively a direction-making power over the commission's programme? For instance, could the Secretary of State intervene on a particular survey programme to be undertaken by the commission—on the same lines as Casualty Watch—if it was not planned as he thought appropriate? The Secretary of State has a clear conflict of interest in such circumstances. The Minister should take that on board.

From discussions held by the commission, it is clear that it will contract out the staffing of patients forums to voluntary organisations. The involvement of the voluntary and community sector is essential in the work of patients forums, but giving the sector the leading role of patching the unevenness that the new system sought to avoid seems to have been built in to the core of the new system. As the noble Earl, Lord Howe, described, the commission plans to set up formal partnerships with consortia of voluntary sector groups. That will create an extremely uneven pattern across the country, with inconsistency between patients forums.

However, the primary objection to the regulations is that they do not fall within the spirit of the original debates. Is it "providing" staff within the terms of the National Health Service Reform and Health Care Professions Act 2002? Surely, contracting to provide is a very different concept from providing.

I remind the Minister of his colleague's comments. Hazel Blears said:

    "There will be staff employed by the Commission for Patient and Public Involvement in Health who will work with PCT patients forums, supporting all of the forums in the area, commissioning and providing independent complaints and advocacy services".—[Official Report, Commons, 22/5/02; col. 349.]

The word used was "employed", not engaged, contracted or any other word. "Employed" has a clear legal meaning.

Voluntary organisations will have mixed feelings about the current system, but they will face a conflict of interest. Surely the role of patients forums will sometimes require them to make themselves unpopular with government. Will not voluntary organisations be rather fearful for their contract? Will the staff provided by them have genuine independence because of those contracts? If staff were employed to support forums and facilitate patients forum opposition to controversial changes or cuts in services, the employing organisation—that is, the voluntary sector organisation—may well feel that its

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contract is at risk or subject to pressure not to oppose such changes. In those circumstances, it would be difficult for it to support the independence of patients forums if to do so would compromise its own source of income. There is a clear conflict of interest.

Will not there be inconsistency between more services being provided by the voluntary sector, as envisaged by government policy, and the voluntary sector's role in monitoring that provision? If the voluntary sector is increasingly to become service providers, it is inconsistent that it should also have an enhanced role in monitoring those services.

As regards staff who could be used by the commission or the voluntary organisations, the Department of Health seems deliberately to be constructing a system designed to exclude current staff of CHCs. The Minister made a precise pledge on 11th April 2002, at col. 629 on the fourth day in Committee, that CHCs will not be abolished,

    "until we are confident all their functions have been picked up in the new system: independent advocacy by independent complaints advocacy providers; scrutiny by OSCs; and monitoring of local services by patients forums. There will be a managed transition to all parts of the system".

The noble Earl, Lord Howe, quoted that to the Minister only last week. Many of us were flabbergasted by the decision to abolish CHCs on 1st September on the ground that people are leaving. It is a completely circular argument. We should be striving to retain them. Contrary to the Minister's commitment, there is expected to be a six month period between 1st September 2003 and 1st April 2004 when the substantial amount of patient and public involvement work currently carried out by CHCs will be terminated. I refer to Casualty Watch, NHS monitoring and the CHC complaints service.

Staff are not being managed into the new system: they are being manipulated out of it. They will be issued with their redundancy notices by 31st May. They will be made redundant on 31st August. Senior staff heard today from department officials that all that is being offered to them is a clearing house through which they can apply for general health jobs. There is no undertaking being given about when jobs for the commission will be advertised or when the arrangements with the voluntary sector for the staffing of patients forums will come into being. In short, there appears almost a deliberate desire to exclude the current CHC employees from the new system. Why is the commission not being more proactive in securing these valuable skills?

Perhaps I may quote more ministerial statements. On 6th December 2001, at col. 280 of the Official Report, Hazel Blears said:

    "I am absolutely determined that we find a pathway for staff of Community Health Councils who want to take part in the new system, members of Community Health Councils and members from all other communities that I identified on Tuesday. I genuinely believe that it is important to hear from all of them if the NHS is to respond properly to the whole of our community".

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There are various other statements about wishing to bring through CHC staff into the new system. But even if by some miracle a former CHC employee manages to get a job with or through the commission, again there will be deliberately no continuity of employment.

If that were not enough, as the noble Earl, Lord Howe, pointed out, there is even more uncertainty about ICAS than about patients forums. Even less information has been vouchsafed by the Government. As the noble Earl pointed out, it looks as though PALS may be the way into ICAS and, in the short term, may perform its functions. That, again, is not as forecast by Ministers when we believed genuinely that it would be an independent service accessible separately by the public. ICAS, too, it appears will not be off the ground until after 1st September.

Let me again remind Ministers of their statements on previous occasions.

On 22nd May 2002, Hazel Blears said at col. 325:

    "To summarise, every NHS trust and PCT will have a patient advocacy and liaison service, ensuring that concerns are dealt with before they become a serious problem",

and so forth. She said that,

    "the staff of the PCT forums will be able both to provide and to commission independent advocacy support. During various stages of the Bill's consideration many Members have talked about incorporating the duty to represent the views of local people, and the provision of independent complaint and advocacy support would make sense. We genuinely picked up on that idea".—[Official Report, Commons, 22/5/02; col. 320.]

And so it continues—more commitments from Ministers which appear to be at least tenuous at present.

Even at this late stage, it is not clear who will be funding the ICAS service. Will the funding be provided by patients forums, the Department of Health, NHS trusts? Perhaps the Minister may cast some light on that.

I turn now to one-stop shops, as mentioned by the noble Earl, Lord Howe. Do we any longer have a commitment to these? Once again, I remind the Minister of his commitment to one-stop shops. On 4th November 2002, in reply to a Question for Written Answer, at col. WA 60 he said:

    "Patients forums in Primary Care Trusts will act as one-stop shops by advertising locally their presence and the services they provide in person, over the phone or over the Internet and by being based in premises that are accessible",

and so forth. Those are the commitments to a one-stop shop.

In summary, the Minister and his colleagues appear to be in the process of ripping up a number of hard-won undertakings made during the passage of the Bill. I am not sure, but I believe that the Department of Health, rather stung by criticisms of its current policies on the abolition of CHCs, is actually constructing a register of commitments made in both Houses relevant to its activities. It is high time that it did, because unless it can plead ignorance its behaviour to date has every sign of being conducted in bad faith. I entirely endorse the comments made by the noble Earl concerning the

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Minister. However, the Minister needs to backtrack and ensure that current implementation follows the commitments made.

As the noble Earl, Lord Howe, pointed out, unless the new bodies are put in place by 1st September there will be major gaps. There will be a complete vacuum. If the CHCs are abolished and patients forums are not established immediately, there will be no patient perspective brought to NHS decisions; no patient voice on NHS boards; no monitoring or inspection of the NHS; no referrals to OSC committees; no patient perspective on public consultations; no competent informed support for complainants; no "early warning system"; and no organisation to take action on failing PALS.

That does not seem to have been the intention of those who were present at the passing of the Bill of 2002. In the light of those criticisms, and when allied to what is likely to be a very low budget for the commission and patients forums, there is only one conclusion to be drawn: the department is determined that the new bodies will be ineffective. No indication has yet been given about the resourcing of the new system—certainly no official indication has been given—in terms of levels of staffing, funding and volunteer requirements. However, the auguries are not good. We need assurances from the Minister on the points raised today, failing which there will be a total lack of confidence in the new system. Certainly, the skills of those staff currently employed in CHCs will not be employed to the optimum.

8.15 p.m.

Lord Rea: My Lords, my noble friend will remember well that I was never convinced of the need to abolish community health councils. They did not seem to be broke in the sense that they did not work. Certainly, they were not so badly broken that they needed to be totally written off and replaced. However, they were broke in the sense that they always had been under-funded and under-staffed. But, of course, that was last year's discussion.

Now we have these regulations which spell out how the new system will work. The noble Earl, Lord Howe, ably supported by the noble Lord, Lord Clement-Jones, has called for their revocation simply to ask a series of cogent questions, which has been done extremely eloquently. It is not my intention to follow-up those questions, but only to say that I believe they are questions which need to be answered. The whole purpose of bringing forward this Motion was to allow my noble friend a chance to hear the serious concerns of those who work in the CHCs—so well expressed by noble Lords—and to give him a chance to spell out how the new arrangements will operate. My main concern, as expressed by both other noble Lords, is whether the new structures will be in place when the CHCs are abolished on 1st December. It seems extremely unlikely at present. Will my noble friend assure us that, if they are not in place, the abolition of the CHCs will be postponed? It would be ideal if the operation of the two organisations could overlap while

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one is phased out and the other phased in. That, I hope, would make it easier for CHC staff, whose skills we want to retain, smoothly to move over for the new bodies. That is what a "managed transition" involves, to quote my noble friend. I shall be interested to hear how he answers some of the extremely searching questions that other noble Lords asked.

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