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The Deputy Chairman of Committees (Lord Ampthill): The Committee should assume that we are speaking to Amendment Nos. 99 to 108.

Lord Clement-Jones: I apologise to the Committee for speaking before the debate on this grouping. I hope that my earlier speech will suffice in support of the amendments of the noble Earl, Lord Howe, and Amendments Nos. 101 and 103, which are in my name and that of my noble friend Lady Barker. As ever, the

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noble Earl, Lord Howe, expressed the matter extremely succinctly. He has made an irrefutable case for the full independence of panels.

Baroness Noakes: I speak briefly to Amendment No. 108, which would require that,

    "each independent panel shall publish annually the cost of dispute resolutions".

The Minister may recall that at Second Reading I raised the issue of costs of the scheme. The Explanatory Notes estimate that costs of 5.5 million will be incurred, but many believe that they will be much greater. If local authorities and the NHS bodies get into a significant number of disputes, which is likely because that is how the incentive system will work, the cost of running dispute systems could become significant. It will be important to keep the running costs under review. The purpose of Amendment No. 108 is to have an annual publication of the costs so that the Government, if they implement the scheme, might realise that it is not cost-effective overall.

Baroness Howarth of Breckland: I support the arguments put by the noble Lord, Lord Clement-Jones, and the noble Earl, Lord Howe. In view of the time, I shall not repeat the points that they made so clearly. I shall make two separate points.

In setting up many of the independent, non-departmental bodies and commissions that the Government have thought through recently, they have been careful to ensure that that independence is clear. In addition, the Minister has expressed his wish for even-handedness between local authorities and health authorities. Having panels set up by one party cuts across the principle of independence that the Government are trying to press. In local government, the approach will not be regarded as even-handed.

There are two particularly pertinent points. Scrutiny of the cases will not be easy. It will involve confidential information about cases and the behaviour of the parties involved. Therefore, transparency is not possible as it is in many other situations. Like adoption panels and similar bodies, one must be careful to ensure that scrutiny can be carried out independently. Therefore, the only way to ensure the transparency and independence of the process is to ensure that the parties are independent.

Finally, if the body is to have only an advisory role, who will make the decision if there is an appeal against a decision of the body and the health authority decides not to accept the advice of the advisory panel?

Lord Hunt of Kings Heath: I fully accept that there must be a sense of fairness on the part of local government with regard to the dispute panels. If local authorities do not have confidence in the panels, the system will not work. I understand the points that have been raised.

I am grateful to the noble Earl, Lord Howe, for the reference to my suggestion that the role of strategic health authorities was, partly, to bang heads together.

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However, that means banging heads together in the National Health Service; the authorities become sensitive flowers in their relations with local government. They have no statutory responsibilities for local authorities. They have an important role to play in encouraging the health service and local government to work well together.

I know that Members of the Committee feel that the aim of the Bill is to have a go at local government. I disagree. There is nothing sinister about our reason for proposing that strategic health authorities should establish panels. There is no strategic equivalent in local government, and it would be more straightforward if we gave the responsibility to the strategic health authorities. It is worth bearing in mind that local authorities, unlike the strategic health authorities, will be parties to the disputes. In a sense, the strategic health authorities are removed from the essential day-to-day issues relating to delayed discharges and from the disputes that will arise.

I understand the points made by the noble Earl, Lord Howe, about the draft regulations. It is clear that we see the panel as being proportionally representative—one NHS person, one local government person, one independent person. My experience of the health service and of strategic health authorities is that one can recognise who the independent persons are.

I listened with great interest to the specific points raised by the noble Earl, Lord Howe, about the involvement of local authorities in helping to identify suitable people from local government to serve on the panels. I can assure the noble Earl that, as we discuss the draft regulations, we will listen with great interest to what the Local Government Association and the local authorities have to say. The last thing I want is a situation in which local authorities do not feel that a panel is fair and the chair not truly independent. It would be in no one's interest for the panels not to work well. I hope that I can reassure the Committee.

It seems proportionate and appropriate that the dispute panels' advice is not legally binding. We are not suggesting that we need the full panoply of statute or that decisions must have the full force of the law. That would put the dispute procedures into a different realm. The point of having dispute panels is to try to avoid litigation, as the noble Earl suggested. The noble Baroness, Lady Howarth of Breckland, will ask what is to happen if people are not happy with a decision or recommendation made by the dispute panel. In that case, they will have recourse to judicial review. I hope that there will be few disputes and that people will accept that the kind of panel we propose will come to a sensible, considered view. I hope that recourse to judicial review will be rare, although I accept that it is necessary that the Committee be made aware that such action is possible in the circumstances that I described.

I am not persuaded that we need to go down the path of statutorily requiring the publication of the cost of resolving disputes. I do not believe that the costs will be large. I suspect that the primary cost of bringing the case before the panel will fall on the disputing bodies.

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Overall, the costs will not be high. The cost of preparing and publishing separate accounts for such activity would, in many cases, be disproportionate.

I accept that the panels must be seen by the NHS and by local government to operate fairly and effectively. I assure the Committee that, in discussing the draft regulations, I will take on board the points raised. It is a straightforward matter to give the strategic health authority the task of establishing the panels. However, I recognise that they must do so in collaboration with local authorities and ensure that the panels are seen to be robust and fair.

Lord Lucas: That was a disappointing answer. The Minister chose not to address the substance of my noble friend's amendment. I would rather that he had offered some justification—if there is any—for not involving local authorities in the process. It is enormously important that the local authority concerned should have a sense of ownership of the panel. It should feel that it has committed itself to it, that it has been part of setting it up and that it has a responsibility to make sure that it works. That will not happen if the local authority does not have the right either to decide on its own member or to agree that the chairman is independent. I cannot see any disadvantage in allowing that.

The noble Lord can draw his regulations however he wants to make sure that a resolution is reached at the end of the day, but it seems odd not to allow the local authority a voice or a sense of participation in and ownership of the creation of the panel. The noble Lord says that he wants such things to happen, but he is considering a structure that will make that difficult. It is disappointing that he did not address that problem.

Lord Clement-Jones: My remarks will be cognate to what the noble Lord, Lord Lucas, said. The Minister has great faith that the panels will have the intended effect and will, in practice, be independent. However, he is not willing the means for such independence. If the Minister does not plan even to publish a review of the operation of the panels, how can we tell whether their operation is independent and effective? That is the base case. If the Minister had confidence in the operation of the panels, he should be prepared at least to publish an annual review. As the noble Earl, Lord Howe, said, the Minister should at least be prepared to publish the cost of the panels as well.

Lord Hunt of Kings Heath: It would be going way over the top to create a statutory requirement to publish a review or details of the cost of the dispute panels. We shall all be interested to see how the panels progress, and I have no doubt that, as the system is monitored in the way that I described earlier, we will pick up issues relating to the dispute panels. However, we must be proportionate.

I have no problems with the idea of local authority ownership. We must find ways in which local authorities have ownership and feel confident about the arrangements. All that I am saying is that, with 28 strategic health authorities, it seems sensible, for

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administrative convenience, to set up dispute panels that cover larger areas than those covered by individual local authorities. It is more straightforward. I accept that we must show that local government has confidence in the panels, and I suggested that we could take many of those points on board in the consultation on the regulations.

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