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Lord Hunt of Kings Heath: My Lords, the noble Baroness said that she is trying to meet the point I raised in Committee about the risk of creating bureaucratic layers. However, the impact of the amendment would be to impose another layer of bureaucracy on the NHS and social services. That is the last thing that either the NHS or local government requires.

There seems to be a misunderstanding of the role of an overview and scrutiny committee. Those bodies are there to scrutinise what is happening on health issues. They are not there to be executive bodies—which they would become if the amendment were accepted. The amendment states:

It is not the role of overview and scrutiny committees to agree and adopt with local NHS bodies joint protocols. That is the responsibility of the local authority and the NHS bodies. Of course I would encourage as much joint agreement as possible, but it is not the role of the overview and scrutiny committees to enter into such arrangements. Of course overview and scrutiny committees may well wish to inquire from time to time into the arrangements for delayed discharge and the performance of their own local authorities and relevant NHS bodies. I should very much welcome that. I believe that the local authorities' overview and scrutiny committees would have

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valuable insights to offer into how the system was running. But it is one thing to scrutinise; it is quite another to take executive decisions. On that ground, I strongly resist the amendment.

Baroness Barker: My Lords, perhaps I should have anticipated the Minister's reply. He may be correct that the locus for planning should be a partnership board. It does, however, mean that the role of the formal body within a local authority—the overview and scrutiny committee—will necessarily be reactive. I am not sure that that is the foundation on which to build the partnerships which the noble Lord has said throughout our debates on the Bill should be in place in order to make this work.

It is important to bear in mind recent announcements such as that made within the past month that there is no longer a requirement for local authority areas to have a community care plan, although health improvement plans are still required.

I continue to disagree with the Minister that his approach is right. I continue to think that his is a negative and destructive approach. I am searching, as he can see, for ways in which to build a positive approach to planning these matters at local level. This may not be the precise amendment to achieve that. I shall take it away and consider it. However, I shall continue to try to find a positive way to build those local arrangements which we agree are necessary, but we wholly disagree on the way to find them. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 [Short title, commencement and extent]:

[Amendments Nos. 64 to 66 not moved.]

Earl Howe moved Amendment No. 67:

    After Clause 17, insert the following new clause—

(1) Subject to subsection (2), Part 1 of this Act shall cease to have effect at the end of five years beginning with the date on which it comes into force.
(2) If the Secretary of State is satisfied that it is necessary for social services authorities to continue making payments in cases where the discharge of patients is delayed for reasons relating to the provision of community care services or services for carers, he may make an order providing that Part 1 of this Act shall continue in force for a further five years.
(3) An order may not be made under subsection (2) unless a draft of that order has been laid before, and approved by resolution of, both Houses of Parliament."

The noble Earl said: My Lords, after all our debates today, I am sure that it will not surprise the Minister that I move this amendment with a considerable measure of enthusiasm.

As the noble Lord, Lord Clement-Jones, said a few minutes ago, this is a Bill which brings us into experimental territory. I and other noble Lords have flagged up our concerns on it throughout these debates. We believe that the Bill will not work: it will militate against patient choice; it will distort priorities, to the detriment of elderly patients in the community; it will create all kinds of perverse incentives, some of which may make the problem of discharges worse, not

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better; and we believe that it will establish a confrontational culture between trusts and social services instead of a creative and collaborative one.

The idea of fining social services for failing to free up blocked beds originated in Sweden. But if we look at what happened there, we see that Sweden, even after operating the scheme for a number of years, still has a higher incidence of delayed discharges in both relative and absolute terms than we do in the UK.

The Government should acknowledge that there is a risk of this measure not working as they predict. As we have said on several occasions, it is the unintended consequences that are often not foreseen. If the Bill were to succeed in freeing up substantial numbers of acute beds without causing unmanageable problems in the community; if it succeeds in encouraging investment into new care homes and in preventive and community care facilities; if patients by and large receive the care that they want and need when they want and need it, then no one will be happier to eat his words than I. But I think that any experiment should have a finite life. After that, it should be subject to a thorough appraisal to see how well or how badly it has worked. That should be a fundamental principle of just about all legislation but never more so, I suggest, than in this case.

If we believe, as I think the Government do, that we should not regulate unnecessarily, that should certainly apply to a Bill which creates burdens for the public sector and incurs unproductive costs. That is why Amendment No. 67 has been tabled. If the Bill has to be passed into law, we should, at the outset, grant it a life of five years in order to prove its worth. If, at the end of that time, Ministers are satisfied that it is necessary, all things considered, to maintain the system of financial incentives in place, well and good. Let them come to Parliament with an affirmative resolution and we will debate it in the normal way.

That is all I ask—it is not so very much. The new clause ought, by rights, to commend itself to Ministers. I beg to move.

10 p.m.

Lord Clement-Jones: My Lords, I support the amendment of the noble Earl, Lord Howe. If the Government will not accept pilot schemes to see whether the mechanisms in the Bill will work and will be productive rather than counter-productive, the logic of the noble Earl's comments is irrefutable. Since the Government do not have a clue whether the Bill will work, it seems that a review after five years is the right way to go.

If the Government accept a five-year span for the Bill, they do not have to put it to the test now. As it happens, almost every Member on every Bench in this House believes that if the Bill were a plane it would crash, and in fairly short order. However, by accepting the noble Earl's very sensible amendment, the Government could sidestep that matter altogether, with very attractive consequences.

Lord Hunt of Kings Heath: My Lords, the noble Lord, Lord Clement-Jones, says that the Government

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do not have a clue whether the Bill will work. I really must say that that is quite unwarranted. We would hardly bring a Bill of such seriousness before your Lordships' House if we were not confident that it put in place the right incentives to enable delayed discharges to become a problem of the past.

We must think about those thousands of people every day who are stuck, unnecessarily, in hospital wards, risking the dangers of institutionalisation, infection and of losing their independence. That is very often down to poor practice between statutory agencies. We hear a lot from the opposite Benches about the problems of these poor statutory agencies who are unable to get their act together. However, I say to the noble Lord, Lord Clement-Jones, and to the noble Earl, Lord Howe, that unless we get to grips with the situation, many thousands of people over the years ahead will still be suffering from the seeming inability of statutory agencies to perform effectively and in the public interest. That is why we are bringing the Bill before your Lordships' House.

I believe that the Bill is even-handed and has the right incentives to make the system work effectively. I have no doubt that once it is introduced, we will see dramatic improvements in the way in which individuals are assessed and community services are provided, and a reduction in the number of delayed discharges.

I know that noble Lords opposite do not welcome the Bill, but that does not justify adding what is generally known as a sunset clause to it. Such clauses are generally used only in Acts passed because of national emergencies, such as the Import, Export and Custom Powers (Defence) Act 1939—I have a list—or in Acts that impinge on individual civil liberties, such as the Terrorism Act 2000. As a resident of Birmingham, I am glad to see the Football (Disorder) Act 2000 on the list. Sunset clauses are not generally used in other legislation and it is not justified in this case.

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I am confident that this is a good Bill. I am convinced that it will lead to better performance in the health service and local government. It deserves to be passed unfettered by a condition such as a sunset clause.

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