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Baroness Carnegy of Lour: The noble Lord used a somewhat circular argument. For the sake of clarity, is it the case that CHAI can conduct a review on its own initiative or be told to do so by the Secretary of State but that the regulator cannot do anything about either of those things? Is that correct or have I got it wrong? Is the regulator left out of the process?

Lord Warner: We have had this discussion many times. CHAI is responsible for inspecting all NHS

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bodies in terms of their ability to deliver satisfactory, quality healthcare and for assessing their performance. In effect, the regulator is giving a market authorisation for particular trusts to operate with the freedoms that go with an NHS foundation trust. It does not carry the same responsibility other than when there are so many concerns about performance as to call into doubt the legitimacy and validity of that market authorisation. It is not for the regulator to respond to every set of concerns that there may be about the broad range of healthcare provided by a particular trust.

Earl Howe: I am grateful to the Minister, although I am a little disappointed. I believe that the sidelining of the regulator in relation to his responsibilities for foundation trusts is regrettable. That is what the Bill appears to do. It should not be for the Secretary of State to go in over the regulator's head, as I mentioned previously.

As regards the power given in the Bill to the Secretary of State to instruct CHAI to initiate a review, I believe that it is a question of balance. Used sparingly, that power is perfectly reasonable; used regularly, it would not be reasonable. I am somewhat heartened by what the Minister had to say about how he envisaged the power being used and, indeed, the reason for it being in the Bill at all. But it remains to be seen whether his view of matters is borne out by events. I am still uneasy about these provisions but between now and Report I shall read carefully what he said. For now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 51 [Reviews and investigations: England]:

[Amendments Nos. 289 to 296 not moved.]

Lord Warner moved Amendment No. 296A:

    Page 19, line 26, leave out "An NHS body must, if regulations so provide," and insert "The Secretary of State may by regulations require an NHS body to"

The noble Lord said: Both government amendments—Amendments Nos. 296A and 297A—are simply clarificatory in nature and have been tabled on the advice of parliamentary counsel to ensure that the current practice of NHS bodies being required to publish action plans in response to reviews and investigations undertaken by the current Commission for Health Improvement continues.

NHS bodies are required to publish an action plan in response to a CHI report and to agree that plan with the relevant primary care trust or strategic health authority. The rationale here is clearly to ensure that the NHS takes action to improve and that the action plan is feasible and affordable. We believe that that approach should continue and so have also taken the opportunity to clarify that other areas in regulations relating to current CHI can be included in future regulations relating to new CHAI. Those include: time limits for preparing statements; copying statements to others; and matters that should be covered in statements. There is no need to make a similar

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amendment in relation to CSCI clauses since such arrangements are set out under the comprehensive performance agreement processes. I beg to move.

Baroness Noakes: I thank the Minister for his explanation of Amendments Nos. 296A and 297A. I have tabled Amendment No. 297 in this group. That amendment seeks to delete the mention of regulations from Clause 51(8). We can see no real reason for the regulations. The subsection reads perfectly well without it. It places a positive requirement on an NHS body to publish its action plan following a CHAI report. Again and again, we return to the issue of why the Secretary of State must become involved.

The issue of regulations and statements of action caused some confusion when it was discussed in another place. In fact, the Minister in another place—Mr Lammy—gave two different explanations for the regulation-making power. On 5th June, he said that the regulation-making power related to the rare case of a foundation trust not publishing its response. He said:

    "We therefore seek the power to put it right, should it ever become necessary".—[Official Report, Commons Standing Committee E, 5/6/03; col. 623.]

However, five days later, he said that regulations enable some flexibility to provide more details of how and when a statement of action to be taken will be published and, to that extent, the regulations follow in the normal way. I am not sure that I understand the whole of that sentence, but I believe that the first half says that the regulations concern the issuing of the statement.

The Minister says that the regulations will be about much more than just issuing statements and certainly not just for recalcitrant NHS bodies. Why can that not be left to CHAI and to the NHS bodies themselves? If an NHS body gave no action plan or gave an inappropriate report, surely there are plenty of levers already within CHAI. The case is simply not made for the Secretary of State to get involved at all. The sense behind our amendment applies equally to the amendments moved by the Minister. I hope that he will explain why the Secretary of State must have this power.

Lord Warner: It is simple. I thought I had explained the point in relation to some of our amendments. We believe that to have such a regulation-making power is an important safeguard to ensure accountability of NHS bodies. Where inspections reveal that action needs to be taken, there has always been a concern that there should be a mechanism for ensuring that that action is taken and that there is accountability on the part of the inspected body to take action. We think it is important and it reinforces the work of CHAI to have this regulation-making power so that we can ensure that there is an action plan, that there are courses of action that are feasible and that CHAI reports are not ignored.

Baroness Noakes: I thank the Minister for that reply. Again we have come up against the gulf between

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these Benches and those opposite. We believe that CHAI should be set up as an independent body that can be trusted to do things. If CHAI needs more levers to ensure that NHS bodies take the appropriate action, we would be happy to consider such amendments, but we find it difficult to accept the sticky fingers of the Secretary of State being able to delve into the tiniest parts of CHAI's operations. I shall consider carefully what the Minister has said. Doubtless we shall pass his amendments in a moment but, as I said, the sense of Amendment No. 297 also applies to his amendments. I should put him on notice that on Report we are likely to return to the amendments on the revised sections.

On Question, amendment agreed to.

[Amendment No. 297 not moved.]

Lord Warner moved Amendment No. 297A:

    Page 19, line 28, at end insert—

"( ) Regulations under subsection (8) may make provision—
(a) as to the matters with which a statement under the regulations must deal;
(b) as to the time by which any such statement must be published;
(c) requiring an NHS body, before publishing any such statement, to obtain the consent of any person specified in the regulations;
(d) requiring the NHS body publishing any such statement to send a copy of it to any person so specified."

On Question, amendment agreed to.

Clause 51, as amended, agreed to.

5.15 p.m.

Baroness Noakes moved Amendment No. 298:

    After Clause 51, insert the following new clause—

A report under sections 50 and 51 which relates to, or identifies, a specific NHS body shall not be made by the CHAI unless a draft of the report has been shown to the NHS body and—
(a) it has confirmed that it does not disagree with the draft report,
(b) it has not responded within a reasonable period of receipt of the draft report, or
(c) it has submitted comments to the CHAI in respect of the draft report and the CHAI has considered those comments."

The noble Baroness said: In moving Amendment No. 298 I shall speak also to the other amendments in the group. The amendments concern several aspects of reporting on NHS bodies covered by the Bill. Amendment No. 298 inserts a new clause after Clause 51 and relates to the reports that CHAI issues under Clauses 50 or 51. Many of the reports will be generic and will not always identify individual NHS bodies, but they may. In particular, a report under Clause 51(2)(c) will, by definition, be about an individual body.

I am quite sure that CHAI will carry out its investigations and write its reports with the highest standards of professionalism. Our amendment should not be taken to imply any criticism of CHAI, but it is possible for facts to be wrong or to be misinterpreted. That is why, for example, when the NAO carries out

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a value for money investigation it must not publish its report until the factual accuracy of the report has been agreed with the department concerned.

Amendment No. 298 is designed to put a small amount of balance into the process. CHAI must show a draft report to the body and must not issue it unless one of three things occurs: the body agrees; the body does not respond within a reasonable time; or the body responds and CHAI has considered any comments submitted to it. That is all very simple and designed not to impede the process but to improve it.

Amendment No. 301 is even more important because it relates to Clause 52 and a report of failings. Those reports can bring down the wrath of the Secretary of State or the regulator, or both, on the body. It is absolutely vital that the NHS body has an opportunity to state its case. Amendment No. 348 is the equivalent of Amendment No. 301 for CSCI and its reports on local authorities.

Amendment No. 300 probes what is meant by "special measures". The term is used as a possible remedy for failings that are reported under Clause 52. But "special measures" are not defined anywhere in the Bill. They could involve almost anything, but what is a measure and what makes it special? I believe that there should be more certainty about what CHAI could recommend which is why Amendment No. 300 seeks the definition of special measures in the Bill.

I understand that the term "special measures" has a meaning in the local authority context. Even if it has a precise meaning there, it does not make it comprehensible in the NHS world. The Explanatory Notes at paragraph 141 talk about special measures being an extra CHAI inspection or, rather loosely,

    "other practical assistance or organisational support".

Are we quite clear that special measures must be confined to those anodyne remedies or can cruel and unusual punishments lurk within the term? I would be grateful for the Minister's views. I beg to move.

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