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Lord Bassam of Brighton: My Lords, I put on the record at the outset that I continue to be puzzled by this amendment. I am puzzled because I thought we
had satisfied noble Lords opposite. I shall take them very carefully through the issue. They said they were satisfied.In another place, the issue of who could carry out an arrest in this country was a big bone of contention, and there was much champing on it. The Opposition went so far as to suggest that the Bill would allow foreign police officers and other foreign law enforcement personnel to come to the United Kingdom to carry out arrests; and they were not having any of it. That has never been the Government's intention and we amended the Bill in another place to put the matter beyond any possible doubt.
Indeed, in Grand Committee, the official Opposition positively bridled at the suggestion of foreign police officers enforcing a European arrest warrant in this country. Indeed, it might assist your Lordships if I reminded them what the noble Lord, Lord Hodgson, said during our discussions on the point. He said:
- "The Government say that they have no such plans. I made it punctiliously clear . . . that we never said that the Government had any such plans . . . It is clear beyond peradventure that the Minister and his colleagues elsewhere in government do not wish non-UK constables to arrest people in this country".—[Official Report, 18/6/03; col. GC 306.]
It is possible that noble Lords opposite may argue that, while they accept that the Government have no intention of letting foreign police officers exercise arrest powers in this country, we cannot be certain about future governments and that the drafting of the Bill might leave some ambiguity.
Let me try to demonstrate why that is not the case. Perhaps I could deal with the amendments in turn, starting with Amendments Nos. 27 and 40, which are concerned with Part 1 of the Bill. Part 1 provides that a European arrest warrant can be executed by any constable, customs officer or service policeman. The term "service policeman" is clearly defined in the Bill, and as these amendments are not concerned with service police officers I assume that the Opposition are happy with that.
Similarly, the term "customs officer" is very clearly defined in Clause 212(6), so I hope the Opposition will accept that the parts of their amendments dealing with customs officers are unnecessary. No foreign customs officer could fall within the definition found in Clause 212.
I turn to the term "constable". The office of a constable has been established in common law for a very long time. On appointment, every constable in the police force must,
- "be attested as a constable by making the appropriate declaration".
Therefore, I suggest that these amendments are unnecessary. Moreover, if we seek to give a statutory definition to the term "constable" we could call in to question all other legislation using the term and on the basis of the common law definition. That is my answer to the question: what harm would the amendments do? I repeat, this would be a step out of line with precedent, which is acknowledged and accepted by noble Lords opposite, and it would, I argue, provide lawyers with a field day as they sought to challenge the myriad other pieces of legislation—many of which were enacted by the party opposite when in government—which do not contain a statutory definition of "constable". This is a dangerous road to go down for noble Lords opposite. We have never seen fit to define that term. That has not given rise to any problems, ambiguity or challenge. I do not see why we should change our practice now.
I should put on record one other matter which was covered in recent correspondence sent by my noble friend Lady Scotland to the noble Baroness, Lady Anelay. The noble Lord, Lord Hodgson, suggested in Grand Committee that the Crime (International Co-operation) Bill contains a definition of "constable". In fact, it does not and, like this Bill, it relies on the common law definition.
I wish to turn briefly to Part 2 of the Bill, which Amendments Nos. 193 and 203 seek to change. There the powers of arrest are conferred on a constable or any person to whom a warrant issued by a UK judge is directed. There is a simple, well-tried and tested reason why we have gone for that formulation. Virtually identical wording can be found in Section 8(5) of the Extradition Act 1989. I can report that that has not given any difficulties; nor has there ever been any suggestion that a UK district judge has ever contemplated directing a warrant to anyone other than a UK law enforcement officer.
The arguments in Part 2 are unnecessary and potentially harmful for the reasons that I have given. I reiterate that the Bill does not allow overseas police officers to carry out arrests here; nor does it contain any ambiguity. So, from our perspective, there is no need to amend the Bill; not least because to do so would call into question many existing statutes concerned with the police service. I hope that this time the noble Viscount can assure his colleagues that we have got it right, and that he is safe in withdrawing the amendment and not moving the others grouped with it.
Baroness Carnegy of Lour: My Lords, the noble Lord gave a statement about the definition in various statutes of the word "constable". Does the same apply to Scotland?
Lord Bassam of Brighton: My Lords, there has been a very useful nod from the corner of the Chamber. I can confirm that that is the case.
Viscount Bridgeman: My Lords, I thank the noble Lord, Lord Bassam, for that very comprehensive
reply. He is right in saying that our only point at issue was whether the Government's intention was correctly and permanently reflected in the drafting of the Bill. I shall look very carefully at what the Minister has said. In the mean time, I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
Lord Bassam of Brighton: My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion I suggest that the Report stage begin again not before 8.32 p.m.
Moved accordingly, and, on Question, Motion agreed to.
Patients' Forums (Membership and Procedure) Regulations 2003
7.32 p.m.
Earl Howe rose to move, That an Humble Address be presented to Her Majesty praying that the regulations, laid before the House on 14th August, be annulled (S.I. 2003/2123).
The noble Earl said: My Lords, I begin by making it clear that neither of the Motions standing in my name has been moved with a view to dividing the House. Nevertheless, the regulations provide us with an appropriate opportunity to debate some of the serious concerns relating to patients' forums and to the emerging shape of patient and public involvement more generally.
At the outset, it is only right for me to give the Government credit where it is due. When we last debated the issues, I expressed my grave disappointment that there was to be a gap of three months between the abolition of community health councils and the establishment of patients' forums—a gap that would make a mockery of the Government's promise of a managed transition from the old system to the new. Since then, the abolition of CHCs has been put back by three months. That was clearly a welcome decision. In addition, I acknowledge the efforts of the Department of Health to consult as widely as it could on the content of the regulations and its willingness to make changes in the light of the comments received.
There are, however, two pivotal issues that the regulations fail to address, and on which the success of patients' forums depends. The first is the infrastructure from which patients' forums will operate. The second is the relationship between patients' forums and other associated organisations. We all believed, when we debated the legislation last year, that the precise way in which the Commission for Patient and Public Involvement in Health would fulfil its role of providing staff, funding and premises to patients' forums would be set out in regulations. Instead, the regulations effectively give the commission a carte blanche discretion to set about those tasks however it wants.
That, I contend, is not within the spirit of the Act. In practice, we see that it is leading to results that can only be viewed as highly regrettable. On 6th December
2001, Parliament was assured by Hazel Blears that there would be a pathway for staff of CHCs who want to take part in the new system. Nobody understood that to mean a guaranteed meal ticket. But the benefit of such a pathway would be that the expertise and knowledge of CHC staff would not be lost to the local community. Instead, we are now witnessing a wholesale contracting out of the staff support function to the voluntary sector, to be called local network providers.That decision has, in effect, left CHC staff out in the cold, unless they are prepared to compete in the job market for short-term contracts in small voluntary sector bodies—a far cry from their present terms of employment with the NHS. In other words, there is no pathway for those experienced staff. The commission is recreating the very thing that Ministers told us would be stripped out of the new system—the middle layer of administration standing between the commission and local communities.
There was absolutely no consultation about the decision. It runs contrary to the picture painted by Ministers in Parliament that patients' forums would directly employ their own staff who would be men and women provided by the commission. It is certainly not the managed transition that was promised so as to make the best possible use of the local knowledge base.
As it is, many of the local network providers have no connection whatever with the communities for which they are to be responsible. Scope, based in Birmingham, is covering forums in south London. The College of Health, based in east London, is covering Essex—rather, it was going to, but it is now going into liquidation.
Local community knowledge for patients' forums is not just an optional extra; it is vital to counterbalance the increasing trend in the NHS towards larger provider trusts, some of which cover several local authority areas. Some network providers, although expert in one field, have no expertise in others. With the best will in the world, Age Concern Harrow is hardly geared up to provide support on mental health, maternity or children's services. I wonder, too, about the Scouts, another local network provider. Some staff will be answerable to more than one forum at a time. Different forums will find that they have different levels of support, some with a reasonably good understanding of local needs and others with practically none.
All that spells one thing: a less than satisfactory structure for supporting patients' forums. It is a recipe for patchiness and complexity. It is also a recipe for bureaucracy, as each local network provider will be governed by a contract that will have to be managed. That is the exact opposite of the consistency, evenness and simplicity that we were promised when we debated the legislation.
We were told that ICAS would be delivered through every PCT patients' forum. That now looks unlikely to happen until 2005. Meanwhile, the PALS service is tasked with advising patients on how to access ICAS. ACHCEW has just surveyed 100 PALS services by
telephone. Only 54 of the 100 received a direct personal response; others got an answerphone or no reply at all. Only 27 out of the 54 were able to direct the caller to the ICAS helpline, which started on 1st September. The survey reflected only those trusts that have a PALS service; many still do not.We were also promised one-stop shops. It is both surprising and disappointing that the regulations do not cover that. Whether we will get one-stop shops remains to be seen, but the auguries are not promising, judging by the very small offices generally occupied by the network providers. A one-stop shop requires the right kind of premises in the right place. Many CHC premises are ideal for the purpose, but the commission shows no signs of wanting anything to do with them. That is a wasted opportunity and a giant waste of public money. Many CHC premises are newly refurbished and at high street locations, with disabled access and private rooms for confidential discussions. Yet a number of CHC premises are now empty and boarded up. Others, including their equipment, are being made over willy-nilly to the NHS. Others, again, are to be offered to house clearance traders.
The local network providers are being largely left to deal with the whole matter. I hope that, in due course, the Minister will be able to answer a Written Question from me on the total cost of the abolition of CHCs and the setting-up of the new system, including premises disposal and redundancies. When that figure is available it will stand as a measure of what might have been. In other words, it will be a measure of the properly managed transition that we were promised but have not had. Because the contracts governing the local network providers are managed by the commission, it is very hard to see how the forums themselves will have any control over the quality of service that they deliver. If the forums are unhappy with the support that they are getting, they have no power to question the commission about it, and the commission under the regulations need do absolutely nothing. Yet the forums will be performance managed by the commission as if they did have control over their staff support.
It is true that, under Regulation 8(2), staff in the local network providers must work to the direction of the forums, but the forums themselves have no contractual leverage over the providers and no means of ensuring that they receive a fair share of time and attention from them. If a local network provider is supporting 33 forums—as was going to be the case with the College of Health—what can a forum do if it feels that it is getting short shrift? All 33 forums will be competing for the same limited pool of staff.
The remaining uncertainty is about how patients' forums are meant to work together. We debated that issue extensively during the passage of the Bill. Patients' forums need to work together for many reasons, not least to inform the work of the overview and scrutiny committees. There therefore needs to be a coherent joint committee of patients' forums relating to the same area. Equally, large NHS trusts ought not to find that they are being pulled in different directions
by four or five PCT patients' forums as well as their own. There has to be a mechanism for getting all those patients' forums around a table, but there is nothing in the regulations that brings clarity to this issue. Co-operation is mentioned but is nowhere defined.There will be an awful lot of forums about. One can easily postulate that a single PCT patients' forum will have to co-operate with an ambulance trust forum, all the forums of the relevant specialised trusts, the forums of the acute trusts from which its PCT commissions services and forums in neighbouring areas. One way or another that is a great deal of co-operation, and if it is to be done well—or done at all—it will require the right degree of support and co-ordination by staff. Frankly, it is difficult to see how such support can be provided by half a full-time post per forum, which in many instances is what is in prospect.
I am sorry to put the Minister on the spot in this way. He was not involved in the legislation or the setting up of the commission and I do not blame him personally for what is now happening. However, ministerial undertakings in both Houses of Parliament given in good faith have not now been met. There has been no managed transition because CHCs have been allowed to disband early and their premises are being disposed of. There has been no harnessing of the skills of CHC staff, as we were promised there would be, and those skills have therefore been lost to the NHS. Not one member of CHC staff has been transferred directly to the commission.
We were promised an ICAS system delivered through every PCT patients' forum. There is a long way to go before we can be confident that patients can access it, and the promised one-stop shop that we debated so many times in this House is still a pipe dream.
This is a very poor start to an important new system. I look forward to any words of comfort that the Minister feels able to give. I hope that he will be able to take away with him the concerns that I have raised and examine them urgently. I beg to move.
Moved, That an Humble Address be presented to Her Majesty praying that the regulations, laid before the House on 14th August, be annulled (S.I. 2003/2123).—(Earl Howe.)
7.45 p.m.
Lord Clement-Jones: My Lords, I rise to support strongly what the noble Earl, Lord Howe, said in his Motion. I thought, if anything, that the noble Earl was quite generous in his opening remarks. However, following them he made a devastating indictment of government policy on patient and public involvement and the implementation of that policy. It has been a sorry tale of government commitments not honoured and of a Gothic divide-and-rule architecture of patient and public involvement. It strikes me that the Government are really rather fond of Gothic architecture—we see that in the opening parts of the latest Bill.
It seems to be a divide-and-rule policy of the Government to split existing institutions in the NHS asunder in a way that makes them unworkable. The ramshackle implementation of even that architecture has been wondrous to behold. I am delighted see the noble Lord, Lord Hunt, in his place. It is rather like him returning to the scene of the crime. He was very strong in his justification of the current architecture and I hope that he has some qualms when he sees the way in which that has been implemented.
The noble Earl, Lord Howe, went through a series of issues such as the absence of managed transition. There has been no managed transition between CHCs and patients' forums or between ACHCEW and the commission. As I understand it, there has been absolute opposition by the commission to managing that transition. The Department of Health has reneged on its commitment to establish one-stop-shops—the number of quotes that I could present to the Minister on the subject are legion. The noble Lord, Lord Hunt, in reply to a Written Question 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".—[Official Report, 4/11/02; col. WA 60.]
On the commitment to staffing, the noble Lord, Lord Hunt, said:
- "Staff will be provided by the Commission for Patient and Public Involvement in Health to primary care trust patients' forums".—[Official Report, 4/11/02; col. WA 60.]
We now find that the Charities Commission has had referred to it the whole issue of whether it is proper for charities to act in this way. We await the outcome of that with considerable interest.
On the commitment on ICAS, Hazel Blears said:
- "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 Patients' Forum, ensuring that the local public have a vehicle to express their view about matters relating to health".—[Official Report, Commons Standing Committee E; 22/5/02; col. 325.]
On the transfer of skills and knowledge, as the noble Earl, Lord Howe, made a clear point. David Lammy MP said:
- "The Government takes the view that community health council (CHC) staff have valuable skills which are important to the smooth running of the National Health Service".—[Official Report, Commons, 2/12/02; col. 610W.]
A great many commitments have not been fulfilled. The noble Earl, Lord Howe, described the survey carried out by ACHCEW—and it is a good thing that we still have ACHCEW in order to at least carry out surveys at this juncture. We will not have it for very much longer. It carried out surveys in April and October 2003. April 2003 was a year after PALS were meant to have been set up in every trust, and October
2003 was 18 months after that date. The results in April 2003 were totally unsatisfactory as the noble Earl, Lord Howe, mentioned, and the results in October 2003 demonstrated absolutely zero improvement. That is the bottom line of that survey—totally unsatisfactory.I have a few minor questions. I could probably go on for about 20 minutes on all the regulations, but, perhaps unusually, I am not going to torture the Minister. However, I am going to go through a number of the different regulations. I turn first to No. 2124—The Patients' Forums (Functions) Regulations. Why must patients' forums have to have regard to any advice given by the commission? That seems a pretty heavy hand. What is meant by "shall have regard"? Is that a directive? Does it effectively mean that patients' forums have to respond in those circumstances?
We have issues about access under Regulation 3. It is unfortunate that access for patients' forums to prison health services and health facilities in detention centres for asylum seekers is not explicitly included in the regulations. Also, as we know, we have a mixed economy. NHS patients will be treated in private hospitals and clinics. I see no right of access there.
The Department of Health has strengthened Regulation 5 by creating a requirement for NHS bodies to provide information within 20 working days, but there is no mention of the quality of the information or of information required on national and regional NHS services, prison health services, private providers, local authorities or primary care providers.
Regulation 6 deals with restrictions on the disclosure of information. There is no provision that deals with the sensitive issue of doctors or nurses who may have been referred to the National Clinical Assessment Authority or are otherwise regarded by the trust as having displayed weaknesses in their practice. It should be possible for patients' forums and trusts to share sensitive information in that way.
Regulation 7, relating to referral to the overview and scrutiny committee, is too narrow and weak. It represents a missed opportunity. It should have included general encouragement to refer any key issues to the OSC, and it should have referred specifically to Section 19(2) of the National Health Service Reform and Health Care Professions Act 2002, which allows the patients' forum to refer any matter to the overview and scrutiny committee concerning the health of local people. That signpost is not in the regulations.
Regulation 8(3) fails to include overview and scrutiny committees in the list of organisations to which the patients' forum should send reports on service reviews.
SI 2003/2123, the Patients' Forums (Membership and Procedure) Regulations 2003, is equally full of flaws. The bit relating to the membership of patients' forums, NHS trusts and PCTs is, perhaps, the worst bit of the regulations. We have a basic patients' forum of seven members, and we have a PCT patients' forum
of, potentially, nine. There are provisions about sub-committees involving two members. That is a very small base on which to build a patients' forum. What happens if members of a patients' forum are away or on holiday or are sick? Instantly, we are emasculating the power of patients' forums. The small size envisaged for patients' forums is a major problem.Regulation 3(1) does not require that the powers will be exercised. I will be happy if the Minister can give an indication that they will be required. The regulation says that the patients' forums "may" appoint a chair; it does not say that they "shall" appoint a chair. Given that, in Regulation 8(2), it is the members who are described as directing staff provided by the commission, the risk of confusion could be a major problem. How can the members exercise proper control collectively over the staff provided for the forum?
I mentioned the problems with sub-committees. They could be major problems. Even in Regulation 10, which relates to meetings and proceedings, there is no requirement to hold a minimum number of meetings. It appears that a patients' forum can meet whenever it wants and with a regularity chosen by the members. On the basis that the Bill that we are debating so frequently and nocturnally appears to envisage the withering away of patients' forums, Regulation 10 is an open invitation to have the patients' forum meet rarely, if at all.
I have said enough to demonstrate not only the flaws in government policy but the sheer lack of commitment demonstrated by Ministers to genuine patient and public involvement and the flaws that are inherent in the regulations.
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