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I have heard two sets of arguments as to why amendments along the lines of those that we are considering are not necessary. The first is that everything is here in the Bill but we have not appreciated that Clause 2 covers all the points; the other is that we should not specify matters too much, otherwise, as changes occur and the nature of provision changes, the regulator will be left with a fossilised set of objectives. However, apart from the fact that those are two contrasting and conflicting reasons why some change is necessary, the reality is that all these amendments are couched in terms that will enable the new commission to respond to the changes in care patterns that will no doubt arise over the years. If—and it is a big if—the objectives in Clause 2 encompass all the points that we want, it is a very poor example of parliamentary drafting. The objectives and functions of the regulator are set out for other regulatory bodies—the noble Earl, Lord Howe, referred to Ofcom and the Food Standards

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Agency, and we have heard about Ofsted—but a Bill setting up a body with the dreadful name of “Oftenant”, which is shortly to come before your Lordships’ House, is a model of clarity for the way in which its regulatory objectives are spelt out. No one needs to be a lawyer; any individual tenant will be able to pick up the objectives and understand the responsibility and focus of the new regulatory body.

I do not know whether there is an A team or a B team in parliamentary drafting, but I suggest that comparisons should be made with the drafting that has been carried out for other regulatory bodies before we come back to this issue on Report.

On the proposal to leave out Clause 2(4), I understand the arguments about independence but there is no point in a regulatory body which does not take some account of the framework of the government policy in which it is operating. It must move within the grain of government policy, but that does not mean that it must always agree with it. It may well be that the words here are not the best form of parliamentary drafting but it would be wrong to omit any reference to government policy. It is important that any regulatory body should make at least some recognition of the governmental environment in which it is operating and tender its advice as a part of that.

Baroness Cumberlege: I am spurred on by the fact that I want to get this right and the House wants to get this right—and by the fact that the noble Lord, Lord Sutherland, thinks we might be back here in 18 months’ time.

I am sure that the Minister and the Government are aware of the great concern among parliamentarians, the current regulators, those working in health and social services and the voluntary groups associated with health and social care which have given us comprehensive briefings. I take the point of the noble Baroness, Lady Howarth. There is a concern that if we do not get this right, we shall see health take over the whole agenda of the new commission. For example, if something goes wrong at St Thomas’s Hospital and something goes wrong at “The Laurels” down Acacia Avenue, which is going to get the attention? I am afraid the National Health Service hospital will get the attention. We need to get this absolutely right.

I agree with other noble Lords that if we are to win the confidence of those who are wary of the Bill, we have to instil clarity and certainty. I agree that we need the principles, the underlying philosophy, the purpose, the duties, the mission and, above all, the vision that should underpin the Bill.

Looking wider, other organisations—well-run companies, law firms, universities, NHS trusts, charities and many others—not only articulate their vision and their principles for the benefit of those whom they serve, their customers or their users, but equally they instil in their staff the vision and values that drive them. One hears phrases such as, “These are the things that matter to us”. This is what we believe in; this is what we want to achieve. It is the anchor, it is the clarity, it is the something against which to test the appropriateness of an action, the probity of a decision, the legitimacy of a new policy or innovation. It is necessary to keep the organisation fit for purpose.



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I am very impressed by Cancer Research UK, of which I was a trustee for 10 years. It is the largest cancer charity in the world—it raises £1 million every working day—and it has to be very clear about what it is doing, otherwise it will not raise that kind of money. Its vision statement is very simple: “Together we will beat cancer”. Bill Gates, the founder of Microsoft, had as his vision a computer on every desk.

When I was pioneering nurse prescribing, I had to have a vision, which took 20 years to bring about: a prescription pad in every nurse’s hand. Changing Childbirth was much more difficult. After much thought, we decided our vision was that the woman giving birth should have three things: choice, continuity and control. That was adopted as the “three Cs”. I used to go to conferences where people would not even say those words; they would just say, “It’s the three Cs”. The Medical Professionalism project is more difficult still. What is it? Do we care about it? Does it exist? Medical professionalism signifies a set of,

Imperial College Healthcare NHS Trust has a mission statement, which I am sure that the pioneer of minimal invasive surgery can recite in his sleep—although I shall not tempt him this afternoon. It states:

That is clear and to the point.

I am sure the Minister understands what we are trying to get at. We believe that the Bill lacks a clear statement of purpose. There is no clear framework and no criteria by which to judge the effectiveness of a regulator. Members of the Committee have put down eight amendments and more have spoken to those amendments. Many have thought about this issue deeply and have used the words “objectives”, “principles”, “duty” and “functions”. According to the Oxford English Dictionary, an objective is something that exhibits actual facts,

I find that a bit difficult. A principle is a “fundamental source”, a “primary element”, a fundamental truth based on reasoning. That is better.

I am sure that in replying to this debate, as the noble Lord, Lord Harris, has said, the Minister will point us to Clause 2, which concerns the commission’s functions, and say, “That’s it. That’s what noble Lords are looking for”. But it is not. Functions are something else, although it is necessary that they are included in the Bill. I am delighted to see in Clause 2(3)(c) the words,

During the passage of the Bill, those words will be a constant refrain of mine. They underline my thinking that less means more. However, functions are not about vision, principles and duty. The OED describes

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a function as an activity, a mode of action which fulfils its purpose. We are searching for a clear description not of the activity but of the purpose these functions are to fulfil.

My noble friend Lord Howe has used the word “duty”. I like that word. It is defined as a binding force of what is right and a moral or legal obligation. It is what one is bound or ought to do. To me that has clarity; there is no messing about. I believe that, in years gone by, soldiers could be shot for failing to do their duty, although that would be a bit extreme in today’s world. I like the idea that a duty is a binding force of what is right and a moral or legal obligation. I think the noble Lord, Lord Harris, used that in his amendment. I go with Amendment No. 4. It is comprehensive and succinct.

The new clause would give the commission a clear mandate to act on behalf of patients, service users and the public. It would provide them with an explicit assurance that the regulator is acting on their behalf and would enable it to resolve conflicts of interest between stakeholders. It would also clarify what Parliament would like the commission to achieve rather than merely state its functions.

We should not be precious about the wording as the Government are perfectly able to craft their own words, but it needs to encapsulate all that we are trying to achieve. This is not a novel idea—noble Lords have pointed to other organisations, such as the FSA and Ofcom. But I hope that the Minister and his colleagues will be sympathetic to the force of the arguments put not only by those in this House but by those whose concern has been so evident in the many briefings that we have received. I hope that the suggestions on wording are helpful, as they are sincere, and that we see clarity and certainty in the principles and duties that underlie the Bill.

4.45 pm

Lord Warner: I approach the amendments from a different perspective from that of other Members of the Committee. I own up to being the Minister responsible for the policies, although only for six months in the second half of 2006, when I was roped in to try to tackle some of these areas. This is an extremely complicated area and a difficult one; it is not an easy area in which to formulate policy. However, it is with some sadness that I support the main amendments in this group.

We must listen to the volume of concern that has been expressed about the absence of something like these amendments at the beginning of the Bill about the objectives of the regulator. The noble Earl, Lord Howe, said that we do not want to be back here in five years’ time. In fact, it was only about five years ago that the noble Earl and I were dealing with these issues in debates on the 2003 legislation. Five years seems to be about the time it takes to come back to this kind of issue.

It is rather sad that we need something of this ilk and that the Bill has been allowed to progress as far as it has without this issue being addressed. It did not need to be like that. When we looked at the policy in 2006, Patricia Hewitt and I made it very clear that we

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needed to look at other regulators. Indeed, we brought in the chairman of Ofcom to help us with the design of some of these issues. He chaired a small group for us to help us identify some of the issues that we had to tackle. Ofcom is a good model of how to set out in legislation what is required of a regulator.

I am sure that my noble friend has his briefing on the strengths of Clause 2. I do not blame him for having that briefing; he was not the Minister responsible for this policy area. But as someone who has been there and got the T-shirt, I gently say to him that Clause 2 does not do the job. It simply does not meet the requirements of a regulator. The three things that you need to do in a framework Bill, if you are to satisfy Parliament and the public, is to be clear about the purpose, functions and scope of a body. The Bill does not yet do that job. There are uncertainties about the scope, which we will come to later; there are definitional problems in Clauses 4 and 5, to which I have put down amendments and which we will debate later. However, those definitions are linked into the objectives to the regulator. We cannot get into that detail until we are clear about the regulator’s purpose.

I am sure that there are probably ways in which the wording of the amendments could be improved. All Members of the Committee have indicated a willingness to be flexible about the precise wording, but something of the kind of what is in the main amendments that we are debating needs to be met.

It is very difficult to argue, as the Government are trying to do, that the devil will always be in the detail of regulation and to say, “Trust us. We just need a framework Bill”. I accept that we were always likely to have a framework Bill, but the question is not whether we have a framework Bill with a lot of detail in secondary legislation—most people would accept that that is inevitable—but whether the framework is adequate. The Bill does not have an adequate framework. I shall not go down the path which my noble friend Lord Harris of Haringey mentioned; I think parliamentary draftsmen are wonderful. They are quite capable of producing a wonderful beginning to the Bill, drawing on the amount of expertise that we have enunciated today.

I was quite attracted to Amendments Nos. 12 and 13 in the name of my noble friend Lord Harris of Haringey—in typically pithy style, they do a great deal to improve the drafting of the Bill—but we need to go a bit further than that. We need a more detailed statement of objectives of the kind that is put forward in the other amendments. While I do not want to quibble about such drafting, I have a bit of a hang-up about the word “promote”. Regulators are not social marketing organisations; they are not marketing organisations at all. “Encourage” and “support” are fine; but I doubt whether it is the job of regulators to go around promoting anything. I agree with my noble friend Lord Harris that it is fanciful to believe that a regulator can totally ignore the policies of the Government of the day. They cannot be allowed to do that—we may have got the wording wrong. A regulator cannot decide to set up an approach that is totally independent

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of whatever Parliament has decided in legislation for a particular set of services. That is not the job of regulators either.

I have enormous sympathy for the Minister regarding the case he will no doubt be asked to argue. I hope that he will be willing to take away the form of words put forward by people who I think are not overly proud of them and see whether, with all the skills that parliamentary draftsmen can exercise, we cannot come up with something that looks like a more suitable framework for taking forward what everybody accepts is much-needed legislation.

Baroness Pitkeathley: I have two reasons for supporting the thrust of the amendments. First, if we do not have some statement of regulatory objectives in the Bill, we are in danger of setting up a regulator which focuses on the narrow objectives of regulation and inspection. We have in front of us a fine example of the splendid influence of the Commission for Social Care Inspection on the development of social care policy, which I certainly would not want to lose.

My other reason for supporting the amendments is their mention of users, families and carers. Family carers should be recognised in the Bill as key stakeholders in the provision and regulation of health and social care services, with the commission given a duty to consult, involve and generally have regard to carers in its work. I know that Ministers have indicated that that is their intention, but the Bill does not mention carers once, which is a grave omission. The proposed arrangements are not sufficiently strong. Using the catch-all term “the public” does not cover it; we have to have something stronger. As we know, carers play a vital mediation and negotiation role. Their lives are considerably influenced by the quality of care services, and regulation should reflect the fact that patients and carers do not exist in a vacuum, but within families, many of which provide a high level of care. Social care policy is finally recognising that carers should be seen as partners in care, consulted and involved. I recognise and rate the Government for their tremendous work on that, but we need something more in the Bill.

Baroness Greengross: Very briefly, I endorse what has been said about including some statement in the Bill; the wording does not have to be exactly what is proposed. I especially endorse the words of the noble Baronesses, Lady Howarth, Lady Cumberlege and Lady Pitkeathley. I am especially concerned that the status and function of the current social care regulator should not be lost or diluted in any way. All three noble Baronesses have pointed to areas where that is likely to happen. We know that that is likely to happen if we are not very careful.

My other point is that only by having a very clear statement of the breadth and range of duties of the new regulator can we ensure that such areas as preventive services are included. We have heard many examples of how they are unobtainable now and becoming more so. I strongly support that point, and the point about carers made by the noble Baroness, Lady Pitkeathley. I am very pleased to have been part

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of the task force looking at future policy about carers. If that is not in the Bill, we have more silos—more separation—than we need, so it is very important that this is stated clearly at the beginning of our work.

Baroness Wall of New Barnet: Without repeating everything that has been said so far, I support most of the amendments. I agree completely with the issue raised by my noble friends Lord Harris and Lord Warner about the performance and function of the commission with respect to the Secretary of State.

I declare an interest as a chair of an NHS acute trust which, regrettably, was on the receiving end of an improvement notice late last year. I emphasise—although I am sure that the detail may be upsetting for some people—that we need to ensure that not only the actions taken by the commission referred to in paragraph (c) but the process within which the regulator will be operating is very clear. The big issue for my trust, which is important for all issues around patient care, is that the Healthcare Commission knew exactly what it was serving the improvement notice on, but beyond that, it did not know how to deal with it. It did not have the same rigour in ensuring that a step forward for patient care and understanding was made. I agree with everything said about the robustness of the regulators’ understanding needing to be in the Bill, but we must also understand the effect of whatever regulation is implemented.

The Parliamentary Under-Secretary of State, Department of Health (Lord Darzi of Denham): At Second Reading, many noble Lords raised thoughtful and heartfelt points about the need for the Bill to set regulatory objectives for the Care Quality Commission. That is an integral part of our debate on the new commission and it is therefore timely that we are discussing this at the start of our Committee deliberations. Given the nature of our discussion, I intend to focus my remarks on the broader issue of the nature of the commission's objectives and functions.

I want to be clear from the outset that an overarching regulatory objective for the Care Quality Commission, with a clear reference to both social care and healthcare, is something with which I have a great deal of sympathy. It is important that we are able to discuss the best approach to setting any regulatory objectives for the commission in the Bill. The contributions that we have already heard today have been a valuable input into that discussion.

As the debate has demonstrated, there are a number of models to draw on as to how such regulatory objectives can be set out in legislation. The aim should be to set out clearly the reasons why the commission is there, and its purpose, and to provide us all with a clear, shared understanding of how to gauge how successful the commission is in carrying out those functions.

5 pm

The model proposed in Amendments Nos. 1 and 3 mirrors the approach taken in the Legal Services Act 2007 for the Legal Services Board. This would appear

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to be an alternative to the current Clause 2 and be linked to Amendment No. 14, which would remove much of Clause 2.

The noble Earl, Lord Howe, and the noble Baroness, Lady Masham, have in Amendment No. 4 suggested, I think eloquently, an overarching principal duty for the commission in carrying out its functions,

This is along the lines of approaches used for the Food Standards Agency in the Food Standards Act 1999, and for Ofcom in the Communications Act 2003. My noble friend Lord Harris in Amendments Nos. 12 and 13 has proposed a general duty also closely aligned to that set out for Ofcom in the Communications Act.

The Bill draws on yet another of the models raised at Second Reading—that set out for Ofsted in the Education and Inspections Act 2006—on the basis that this was probably the most similar regulator to our new commission. As is becoming apparent, noble Lords will recognise that we have each, in our differing approaches, picked up many repeating themes.

It may be helpful to set out the rationale behind the Government’s approach to the key functions of the Care Quality Commission—those in Clause 2—and then come back to some of the recommendations made by noble Lords. In Clause 2, we have set out those key functions: first, by assuring that health and adult social care services are providing care to the levels of safety and quality—words that we heard many times in this debate—that patients and service users are entitled to expect, and in taking appropriate actions where they are not, through the registration and enforcement provisions in Chapter 2; secondly, by providing comparable information to patients and services users through the reviews proposed in Chapter 3; and, finally, through the vital role currently carried out by the Mental Health Act Commission in monitoring the use of provisions in the Mental Health Act.

Moreover, in Clause 2 we have made it clear that in carrying out its functions, the commission must in everything it does have regard to a number of crucial issues in performing those functions. Noble Lords would agree that it is vital that the commission must have regard to the need to safeguard the rights of children and vulnerable adults when it carries out its functions. The commission must listen to the views of those who use services—patients, service users, carers—including representative bodies such as LINks. The commission must also be required to take account of the Government’s five principles of good regulation, under which regulatory activity should be proportionate, accountable, consistent, transparent and targeted where needed. In relation to the point raised by several noble Lords on Clause 2(4), I echo what my noble friend Lord Harris has said, but we will of course enjoy a longer debate on this issue when we reach Amendment No. 22. Lastly, Clause 2 makes clear that the commission is to carry out its functions for the general purpose—the regulatory objectives—of encouraging improvements in care service, user-focused care and the efficient and effective use of resources.



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