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We know why this is. The Government say that they do not want to be prescriptive about the form that LINks should take because this issue should be up to local determination and local circumstances. That approach is all very well, but the result of it is that the law does not confer on a LINk any sort of functions or powers. If a LINk has no statutory functions or powers, it can never, by definition, act contrary to its functions or powers, and hence can never be accountable in any proper sense for what it does. Nor can it call anyone else to account because it has no right in law to do so. The only rights and duties that feature in this part of the Bill are conferred on other people, such that the identity of a LINk is defined only as a reflection of what other people are duty-bound to do in relation to a LINk. It is an extraordinarily contorted and unsatisfactory way to go about things.

My view is that the Government should not have lived with this arrangement; they should have gone back to the drawing board and started again. Nevertheless, taking the Bill as we have it, there are several issues which I believe we need to deal with if these arrangements are to stand any chance of working.

The first of these issues is addressed in Amendments Nos. 209ZA and 210ZD. As the Bill stands, there are no provisions for LINks to have any form of governance arrangements; it is left completely open as to how a LINk would be able to make decisions or authorise people to act on its behalf. This is a major issue because without some form of governance you cannot have accountability. If there are no people authorised to act on its behalf, a LINk cannot be accountable for the proper use of public money; it cannot be judged on its effectiveness or lack of effectiveness; nor, indeed, can it operate in any meaningful sense. For example, it cannot take decisions about what it should be doing. We debated in Committee the risk of bias within a LINk arising from single issue groups. We also flagged up the risk of a conflict of interest between a LINk and its host, if that host were a provider of services. Neither of those risks can be adequately addressed unless a LINk has some sort of system of governance.

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The Government say that they do not want to be prescriptive about this, but the process contemplated in the department’s advice document on LINks is not realistic. Each LINk is urged to,

“work to develop governance arrangements that are easy to understand and implement, not bureaucratic and exclusive”.

Three questions arise from that. How long will this process take? How different will each model be? How will we be able to judge the quality of the many governance models if nothing is laid down against which to measure them?

The purpose of these amendments is therefore to make sure that LINks have the means to be effective and accountable. The key issues around governance are really three: how decisions are to be made; how activities are to be undertaken; and, who is to do these things? Without those minimum requirements we would be left with a situation where someone who has joined a LINk, but who never attended any meetings or received any training or signed any code of conduct, could demand a meeting with a chief executive of an NHS trust in the name of a LINk and raise whatever issue he or she thought appropriate without any accountability to the LINk or, indeed, to the community. That is only one example, but I suggest to the House that for us as legislators it is an unacceptable situation. Therefore, we need to have some sort of minimum provision about governance in the Bill.

The second issue arising from the fact that LINks have no statutory identity is that in the final analysis they have no voice. What is to happen if a LINk decides to enter and view a set of premises and the door is shut in its face for no good reason? What happens if a LINk asks for information and that information is withheld when it should not be? What is the LINk then to do? And who can it turn to? At the moment, this kind of situation, which I am told happens frequently with patients’ forums, is referred to the Commission for Patient and Public Involvement in Health, which does its best to adjudicate on the dispute and to sort it out. Under the Bill there will be no equivalent body able to bang heads together. The LINk will be on its own. To be sure, it can try to shame the services provider into action by going to the local press or to the overview and scrutiny committee of the local authority; but with private providers, in particular, that approach will almost certainly not work. Informal pressure is not the same as having a quick and simple means of arbitration that is binding on both sides.

Amendment No. 210ZC proposes a mechanism to achieve this. I have in mind the appointment of a LINks' monitor, whose job it would be to arbitrate in disputes, but who would also be charged with gaining an overview from a national perspective about how well or badly patient and public involvement was working, and to be a reference point to government in this area of policy making. There is a precedent for this in the field of immigration; but the model is a simple and straightforward one.

The next issue is one I have referred to briefly already; that is the scope for conflicts of interest. As the Bill is worded, the body acting as a host for a LINk can be any body at all apart from a local

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authority. In Committee I raised my concerns about that—if a host were also a provider of local services, a LINk in carrying out its monitoring activities would be monitoring its host. Furthermore, the host would be responsible for writing the reports of a LINk. A critical report on the host as a services provider would place both parties in an invidious position and could seriously prejudice their working relationship in the future.

In Amendment No. 207A I propose that it is as inappropriate for an NHS body to be a host as it is for a local authority. There is simply no need for us to allow for the possibility of this situation arising; and there is an easy way of avoiding it.

Finally in this group I turn to government Amendments Nos. 208 and 209, which under the rules of Report I hope the Minister will allow me to comment on. These amendments are extremely welcome. I am very grateful to the Minister for having taken away the arguments put forward in Committee about the need for the Bill to allow explicitly for collaboration between LINks. However, I need to ask the Minister whether she is satisfied that the amendments in her name deliver everything that is necessary. The problem is that it is not clear what LINks would be able to collaborate on, given that their activities are explicitly only local in nature. The point of having a LINks umbrella body would be to take a national or regional view of health and social care services. That is particularly pertinent at the moment in the light of the review of the NHS by the noble Lord, Lord Darzi, which may come up with some far-reaching proposals that cannot be considered properly by LINks acting individually. Will the Minister assure me that her amendments would enable LINks, while collaborating, to consider the report of the noble Lord, Lord Darzi, in its regional or national context? I beg to move.

Baroness Neuberger: My Lords, the noble Earl, Lord Howe, has said virtually everything that needs to be said on these subjects. I just have a couple of points to add at this stage. First, I think that we are all concerned about possible conflicts of interest for hosts. It is critical that NHS bodies are included in the Bill as bodies that cannot be hosts. Will the Minister comment on how we deal with possible conflicts of interest that may exist when voluntary organisations that are members of LINks—a point we raised several times in Committee also act as their host? How does one deal with such conflicts of interest?

Secondly, will she add to what the noble Earl just said about LINks being able to network together and the extent to which that will be helpful and useful, given the restriction to local activities that exist at present, as far as we understand the legislation? This has been raised with me as a key point by some of the ambulance organisations and mental health organisations. They say that, particularly when one is dealing with specialised issues, one needs to have some comparison of what is going on over a larger patch. That is equally true of relatively rare diseases where you would expect user groups to be able to compare one patch with another. It would be helpful to know from the Minister what she thinks the LINks will be able to do in their

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network activities. I echo the noble Earl in thanking the Minister for enabling some form of LINks networking to take place. That will be much appreciated.

Baroness Masham of Ilton: My Lords, I thought that other noble Lords were going to speak. If LINks do not have a structure and an administrator, how will they be organised? Fragmentation will not be productive, will it? How do priorities get heard? The public are now very worried about hospital-acquired infections. Is that not something that LINks could speak up about? Hospitals have illustrated that they brush the problem under the carpet until a report is made public. Surely, one wants to act on prevention rather than cure, because cure is a difficult thing to accomplish with the spores of C. difficile.

Baroness Andrews: My Lords, the debate opened with the noble Earl being very sceptical about the form that the LINk would take. We had extensive debate in Committee on that. I will return to that argument as I go through the amendments because I have something to say. I will also pick up some of the other points made in the Chamber.

The group of amendments includes some government amendments, so I will take things in grouped order. Amendment No. 207A would clarify that an NHS body cannot take on the role of host for a local involvement network. I understand why the noble Earl is returning to this point at Report, because it is important to deal with potential conflicts of interest. In this clause we explicitly exclude NHS bodies from being LINks, but not from being hosts. It is formulated in that way because it follows the principle that we have so firmly addressed in the vision that we have for LINks because it is ultimately for a local authority to decide who ought to be a host.

We have made the premise and purpose of a LINk clear in the Bill and in guidance. A LINk will be a body able to independently scrutinise health and social care services. Given that purpose, I entirely agree with the noble Earl that it is clearly undesirable, not least on the grounds that there might be a potential conflict of interest, that an NHS body should take on the role of host. We have made it clear throughout the whole debate on Part 14 that it is deliberately permissive. The issue of who and what can be a host is a good example. We have said from the beginning that we want LINks to reflect the local ecology of health and, for the first time, local care services. It is an extremely important and radical development.

A LINk will reach out into communities beyond the normal networks in a way that will be different from the excellent work of the patients’ forum. It is a different organisation and we congratulate members of the patients’ forum on all the work they have done. We are indebted to them and I am confident that they will be working very closely to pursue the same objectives with the LINks. They are very dedicated people.

We have placed a duty on local authorities to make arrangements and those arrangements are to procure

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the services of a host. Local authorities are extremely knowledgeable, none more so than about what makes up their local communities—what concerns they have, what services are provided locally and what services are best suited to the needs of local people. The Bill is deliberately permissive about who can be a host. Only the local authority itself, as the noble Earl said, can explicitly not be chosen. I also accept that NHS bodies would not be appropriate hosts. It is not our call. We believe that local authorities are best placed to make that choice—not Parliament, the Department of Health or the Department of Communities and Local Government.

I do not fear that there will be a dearth of people coming forward. As soon as the commissioning process is under way—it has already started in many local authorities and it is going well—many different authorities and organisations will want to come forward to be hosts. Many will come from the voluntary sector, which is particularly well placed. It is well used to the role of advocacy. Some will come from the forum support organisations. For those reasons, the balance that we have tried to strike is between making sure that the host is a responsible body, and not proscribing, other than excluding the local authority, who it should be. I hope that the noble Earl will take that point.

I am very pleased that both the noble Earl and the noble Baroness, Lady Neuberger, have welcomed what we have been able to do with government Amendments Nos. 208 and 209. I will come to the point about whether we have satisfied every criterion in a moment. The probing amendment put by the noble Baroness in Committee was useful because it clarified whether LINks would be able to collaborate with other LINks either regionally or nationally. In particular, she sought assurance that there would be the potential for LINks to form a national association and that will obviously provide an important focal point for LINks. She also sought to clarify the budgetary arrangements for possible LINks collaboration.

At the time, I recognised that further thinking was needed around collaborative arrangements. It was not clear enough, not least because we had always envisaged that some LINks would be bound to want to forge relationships with others. They would want to share ideas. There is a huge wealth of experience, not least that generated by the patients’ forums. They would want to share information and good practice. We wanted to be sure that there were no barriers to that happening. The Bill is written in such a way as to allow local authorities, hosts and LINks organisations to create their own models of working, because we believe that local communities know best how to form their own partnerships. But the flexible nature of the arrangements under the Bill would in any case allow for arrangements to be made which enable groups of LINks to be able to join together to form a national association. What could happen was never in doubt.

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6 pm

The noble Baroness raised an important point when she said that the Bill should make explicit a LINk’s ability to use host funding to collaborate with other LINks. On reflection, while we do not want to impose partnerships on LINks, we have agreed with her. Amendment No. 208 therefore sets out the arrangements made to ensure a LINk’s activities can be carried out,

“may (in particular) make provision as respects co-operation between a local involvement network and any English network or English networks”.

Amendment No. 209 ensures that such networks can carry out the same activities as a LINk can individually. Those specific provisions therefore ensure that the contractual arrangements made by a local authority with the host can include arrangements for a LINk to co-operate on a local, regional or national basis as a means of undertaking its core activities.

We have also included a specific reference to the host organisations supporting LINks in,

“joint working where necessary between LINks locally, regionally or nationally”,

which is a very important capacity for enabling them to inspire and support. That is in the model contract specification, which was published in the summer, for local authorities to use when procuring host organisations for LINks. That makes the position absolutely clear.

The noble Earl, Lord Howe, and the noble Baroness raised whether we are satisfied that, by doing this in this way, local organisations which are joined regionally, locally or in a national organisation can address the big issues raised by the Darzi report, or even by Dentistry Today and patients’ forums. The answer is that there is absolutely no reason why they should not. There is no problem. They are not restricted to commenting on local activities if they choose to work collaboratively. It would be very unlikely that they would not want to be part of a national dialogue or address a national agenda. It would be invaluable if they did.

Amendment No. 208A seeks to amend our Amendment No. 208, the goal being to make it clear that any co-operative network of LINks which is established can have as broad a remit as possible with respect to the services in different areas. Perhaps I may reply to the question raised by the noble Baroness, Lady Masham, on hospital-acquired infection and addressing it locally, as have some patients’ forums in their specific work with institutions. With LINks coming forward and representing people on the receiving end of care services, acquired infections will be an important challenge for people to engage with. I appreciate the sentiment behind Amendment No. 208A, but, having made it explicit that LINks are able to establish such networks, it is important to let them get on with the job and determine their own priorities and agenda.

On Amendments Nos. 209ZA and 210ZD, the noble Earl powerfully set out a sustained and sceptical description of LINks, judged by the absence of prescription. In Committee, we went to some lengths to explain why we have made such a radical departure from the forms of governance that we normally expect

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organisations and policies to have. Our intention has been to enable people whose voices are not normally heard to come forward and make their concerns and contributions felt in what we admit are new and radical ways. I appreciate that the intention behind the amendments is to address concerns that, without proper governance arrangements, LINks will be hampered in carrying out their activities—certainly, that is not what we intend—and will not be properly accountable to their local communities. The noble Earl referred to the models we put forward in different forms of guidance. He raised very important questions about how decisions will be made if you do not have governance, how they will achieve what they want to achieve and who will do what.

We have been clear from the outset that part of the role of the host is to ensure that a LINk has proper governance arrangements in place. We are not advocating complete anarchy in any sense. I do not think that the dire predictions of the noble Earl would be fulfilled, not least because our publication, Getting ready for LINks, Contracting a host organisation for your Local Involvement Network, makes it very clear that the host will be working closely with the LINk precisely to establish terms of reference for those arrangements.

Given the principle of trying to hand this over to the local community and say, “You tell us your concerns and devise a means of governance which fits your particular ways of working in partnerships”, we wanted to retain the flexibility. But the most cheerful news is that when you look at the early adopter projects—I hope that it does not get transcribed this time in Hansardas “earlier doctors”, bearing in mind the contractual arguments at the moment—many different models are emerging, but they all have specified, or anticipate, some form of governance arrangement. They vary enormously in the way in which they will do things and the models will vary. Ultimately, they will have governance arrangements. It is extremely unlikely that this would not happen.

We intend to publish further guidance about possible governance mechanisms in due course, which will enable effective governance. I am impressed by the passion with which the noble Earl has spoken, by the consistency with which he has drawn attention to the problem and the seriousness of his diagnosis, although I do not entirely agree with him. I appreciate that there are residual concerns about whether these responsibilities are discharged effectively. I welcome the breadth of the amendment. Therefore, I propose to take the principle of the amendment away to consider further before Third Reading.

Finally, Amendment No. 210ZC provides for an arbitrator. I take the noble Earl’s point that there are many instances where access to information, or access to premises, disputes arise. It is desirable that they should be settled as quickly and smoothly as possible. We have set out in guidance that the host should have a clear responsibility to support LINks in resolving disputes.

On those grounds, I do not see how an additional arbitrating body can help in this respect. It would add to bureaucracy and obscure the clear responsibility

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we have set out for the host to ensure that there are means and ways for disputes to be effectively resolved. Once again, as with the governance arrangements, I do not think that a centrally prescribed arbitrator, who would also limit the host’s ability to respond flexibly, is appropriate. Even if a dispute cannot be immediately remedied by the host’s arbitration, it is clear that there are number of ways for the LINk to ensure that its voice is heard, including by complaint to an appropriate local body—whether a PCT, a local authority, a regulatory body, the press or the local MP. Acknowledging and exploiting those publicly available and transparent mechanisms are more effective than establishing another arbitrating body whose powers and functions would be obscure. It might get in the way of the host.

With that rather long explanation and response, I hope that the noble Earl feels he can withdraw his amendment. I hope he accepts my assurance that we will take away the amendment on governance.

Baroness Masham of Ilton: My Lords, will there be any independence for LINks or will they be organised and ruled by the hosts? Power is a very dangerous thing. How can the Minister be sure that this will not happen?

Baroness Andrews: My Lords, the analogy I used in Committee was that the host would be the Civil Service. The host will not tell the LINks what to do. The LINks will drive the host. The host will facilitate and help the membership of the LINk to determine its priorities, what it wants to focus on and how it should go about its tasks. In no way will the host either drive the LINk or compromise its independence.

Earl Howe: My Lords, I am grateful to the noble Baroness for her detailed reply and particularly grateful that she has agreed to take the amendment relating to governance away with her for further consideration. I just add to what I said—I am sure that she appreciates this—that my amendment does not seek to be prescriptive about particular governance systems. All it does is try to ensure that some form of governance arrangement exists within a LINk. To that extent it is prescriptive, but its prescriptiveness is fairly mild.

I am grateful for the reassurance that the Minister gave on collaboration, which I can only accept. It is good to know that there is no question of LINks acting ultra vires if they choose to engage in activities that are regional or national in their scope.

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