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Earl Howe: I am most grateful to the Minister for what he said with regard to local compacts—that is an encouraging picture. I am also grateful for the support of my noble friends behind me, for giving again the arguments that I tried to articulate on paragraph (a) of the amendment.

The Minister has tried to be reassuring, and I accept his assurances in the spirit in which they are given. However, the issue is not whether the regulator is expected to abide by good deregulatory principles or might wish to work within them. The issue is whether the regulator is legally obliged to have regard to the duties, if they are not directly referred to in the Bill. The Minister referred to common law duties, but I am not sure that that is enough. Everyone needs to have certainty that the regulator will behave in a proportional and consistent way.

The regulator is a great deal less accountable than the Secretary of State, as we have discussed. If a foundation trust believed that the regulator was not acting consistently, proportionately or transparently, what remedy would it have? It cannot appeal against any decision taken, as the Bill does not allow for that. It can seek judicial review, but judicial review is dependent on interpreting legislation. That brings us round in a circle to where we began.

I must reflect further on the issue. I should add that the inclusion of children's services in the amendment deliberately picks up the later reference in the Bill to the rights and welfare of children in Clauses 47 and 74, which set out the respective functions of CHAI and CSCI. With thanks once again to my noble friends, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

13 Oct 2003 : Column 639

[Amendment No. 115 not moved.]

Clause 3 agreed to.

Baroness Barker moved Amendment No. 116:

    After Clause 3, insert the following new clause—

(1) The regulator shall, in carrying out his functions, have due regard to the need to promote the equalisation of opportunity and the elimination of unfair discrimination and harassment so as to ensure that persons do not suffer detriment or are not denied opportunities and benefits for reasons related to one or more of the following grounds—
(a) age;
(b) colour, race, nationality or ethnic or national origins;
(c) impairment;
(d) family status;
(e) gender re-assignment;
(f) marital status;
(g) pregnancy;
(h) religion or belief;
(i) sex;
(j) sexual orientation.
(2) As soon as is reasonably practicable after the end of each financial year the regulator must publish a report containing—
(a) a statement of the arrangements made under subsection (1) and having effect in the year;
(b) an assessment of how effective the arrangements were in promoting the equalisation of opportunity.
(3) The report must also contain a statement of the arrangements which the regulator has made, or proposes to make, under subsection (1) in respect of the financial year immediately following that referred to in subsection (2).
(4) The regulator must send a copy of the report to the Secretary of State."

The noble Baroness said: We come to a debate that picks up in a different way some of the arguments just aired under the previous amendment. It is obvious that the main concern about the creation of foundation trusts, which has been expressed publicly, is the extent to which it will cut across some of the founding principles of the NHS and the principle of equality.

The four amendments seek to set out a fundamental duty—to the regulator, the two NHS trusts, CHAI and CSCI. That is a duty of equality. The amendments would build into the legislation the principles of good practice. They would build on existing principles within the NHS. Many of those principles are to be found in different parts of legislation and practice in the NHS—in the National Health Service framework and the NHS employment initiative, for example.

Noble Lords may ask why we should set out the principles in such an obvious manner. The tariff system for payment for treatment will have a significant influence and it is difficult to see how it will be possible for foundation trusts to perform their duties and live up to all the functions and tasks set them by the regulator, without transgressing the principles of equality. There is very real fear that those

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patients who will lose out are not as articulate or as powerful—or as organised into lobbies—as others; hence the amendments.

The NHS has had a history of trying to tackle inequalities. It is fair to say that there has been progress, but there is also a recognition that there is a great deal more to do. A report from the Leonard Cheshire Foundation earlier this year noted the extent to which disabled people failed to be offered treatments that other people would be offered, for services unrelated to their disabilities—some screening services, for example. The only reason that could be found for that was discrimination on the part of the providers.

The amendments would impose a duty on all parts of the NHS in the new set-up to have principles of equality as part of what they do. I imagine that the Minister will come back with his usual response about the amendments being too prescriptive. I argue that they are not: they constitute principles that have to be adhered to. It is up to each part of the NHS how they implement those principles in practice. Provided they can do so, and can prove that they can do so in an annual report, they are not being prescriptive.

I believe that this approach has been built on not just in the NHS but, since the Macpherson report, in other public bodies such as the police. In those services it has proved not to be a cumbersome or bureaucratic requirement which has got in the way of their primary function, but a great benefit to what they do. One can see that the application of these principles in the NHS could have immediate and beneficial effects in areas such as primary prevention and preventative treatment. It is in that light that I recommend this series of amendments.

5 p.m.

Lord Peyton of Yeovil: Before the noble Baroness sits down, will she explain what is meant by "gender re-assignment"? It is not a term with which I am familiar.

Baroness Barker: It is a technical term referring to people who are born of one gender but who feel themselves to belong to another and who undergo a process of surgical and medical treatment to be changed into the gender into which they feel they should have been born. I beg to move.

Baroness Finlay of Llandaff: I give my strong support to the amendment. Some groups in the population find it much more difficult than others to access healthcare and require much more flexible healthcare. People do not want to be treated alongside members of certain groups in the population, particularly prisoners. Prisoners are stigmatised and sometimes encounter difficulties being treated on general wards. The same applies to people with severe disability and particularly to those with severe mental handicap.

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In referring to paragraph (b) of the amendment, which mentions,

    "colour, race, nationality or ethnic or national origins",

I take the opportunity to probe the Minister a little further on a response he gave me on the first day of Committee regarding patients from Wales. He said that,

    "it is likely that that trust will continue to provide those services as before, provided that the local health board in a devolved administration area continues to contract with that NHS foundation trust . . . The regulator will not and should not be able to protect the provision of services to Welsh patients. That is a matter for the National Assembly for Wales".—[Official Report, 7/10/03; cols. 183–184.]

I seek assurances that the regulator will have a dialogue with the National Assembly for Wales to ensure that those services which are not provided in Wales will remain available to Welsh patients and that they will be treated with equity. I envisage a situation where a foundation trust's services may come under pressure and patients who have travelled some distance, who perhaps also demand accommodation and local help, may find themselves subtly discriminated against. I am also concerned that a foundation trust could decide to drop its contracts with local health boards in Wales before it drops contracts with commissioners in England.

Baroness Greengross: I add my strong support for the amendment. I spoke on this issue at Second Reading. It concerns equitable treatment. Equitability is not a word that we use often but it may apply in this context. Some groups—I think particularly of older people or people with mental health problems—need flexible treatment. They often need quite expensive treatment. It would be sad if they were denied that treatment. We know that the national service frameworks are not strictly enforceable. The measure would constitute a protection for the many groups whose needs must be protected, and the regulator is in a position to do that.

Lord Warner: On the subject of Wales, I repeat the assurances that I gave earlier to the noble Baroness, Lady Finlay. The issue of commissioning is a matter which will be taken forward in discussion between the Secretary of State, the Department of Health and the National Assembly for Wales. I do not think that that is an area for the regulator. I certainly do not accept that the noble Baroness's concerns are well-founded; namely, that many trusts are waiting to offload their current arrangements regarding Welsh patients. I tried to say as clearly as I could that under devolution commissioning services for people who live in Wales is the responsibility of the National Assembly for Wales. I said neither more nor less than that. I thought that was a statement of the obvious.

As regards the amendment moved from the Liberal Democrat Front Bench—

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