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Many of those current provisions, some of which would be removed by Amendment No. 14, would be reflected to some degree in the alternative model proposed in Amendments Nos. 1 and 3 by the noble Baroness, Lady Barker, and supported by other noble Lords. While I am very sympathetic to the issues that the noble Baroness is keen to highlight in these amendments, I have concerns about how prescriptive Amendment No. 1 is, when combined with Amendment No. 3, which would require the commission to act in accordance with these objectives. We all want the new commission to practise what it preaches, but I argue that it forms part of a broader system of other players and other mechanisms. I would not want to detract from the roles and responsibilities of those other players—not least service providers themselves—in delivering, for example, high-quality personalised services.

Although noble Lords no doubt support the good intentions behind these and related amendments, they will recognise that there is a balance to be struck here. Setting too many or too specifically worded objectives may dilute the effectiveness of some or all of them, create unintended inflexibility or create difficulty for the commission in establishing its priorities as circumstances change from time to time. Overall, I would not support regulatory objectives that reached the levels of specificity set out in the model of Amendments Nos. 1 and 3.

Linked to those amendments are Amendments Nos. 101 and 109, which suggest mechanisms for ensuring that the commission reports to both the Secretary of State and the public in its annual reviews on how well it is delivering against those objectives. Indeed, Amendment No. 101 would require the commission to tell the Secretary of State how it has taken the views of patients, users and carers into account in its work and how it and those whom it regulates have contributed to the efficient and effective use of resources. I believe that it is more important for the commission to tell the public directly—hence, we have already set out in Clause 79 the requirement for the commission to report annually on how it has carried out all its functions. Of course, the Care Quality Commission will already keep the Secretary of State informed—for example, through the provisions in Clause 49.

It is worth restating that Clause 2 was crafted very carefully to include all the key responsibilities that we felt this new organisation should have, recognising that the commission will operate as just one part of a broader system. I am therefore unconvinced of the benefit of removing the bulk of provisions in Clause 2 as proposed by Amendment No. 14. However, I recognise that Clause 2 may need to be enhanced to be clearer, and I shall look at this matter again.

As I mentioned, I am sympathetic to the cause of setting a clearer, more easily understood purpose for the new commission, but that purpose must allow the commission some flexibility. I would want to reflect carefully on how this could best be framed, but the thinking proposed by my noble friend Lord Harris of Haringey in Amendments Nos. 12 and 13, and by the noble Earl, Lord Howe, and the noble Baroness, Lady Masham, in Amendment No. 4 is worth exploring further in conjunction with enhancing Clause 2.



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I turn to the point raised by my noble friend Lord Patel regarding the rights of detained patients. At this stage, I express my overall agreement with his intention, but I hope that he understands that I will elaborate further on these issues when we reach the group beginning with Amendment No. 19, tabled by the noble Baroness, Lady Stern. The noble Lord, Lord Sutherland, also asked whether the commission would have any route for advising Ministers. As I said earlier, Clause 49 makes it clear that the commission can advise the Secretary of State on aspects of the provision of care.

In summary, I genuinely believe that we are all working towards similar goals here. We are all using slightly different approaches in setting out the primary objectives and functions of the commission but ultimately we all want patients, service users, carers, those being regulated, the commission and, indeed, us, to have a clear, shared understanding of why the commission is there and of how well it is delivering against the overarching aims. With that in mind, I ask noble Lords to permit me to take away the views expressed today with a view to bringing back on Report a revised, clearer approach to the Care Quality Commission’s overarching regulatory objectives, which your Lordships' House will, I hope, be able to support. I reassure noble Lords—and specifically my noble friend Lord Harris—that I am working with the A team, and I shall make sure that they craft their words as closely as possible to meet noble Lords’ aspirations. I therefore hope that noble Lords who have spoken to their amendments will feel able not to press them today.

Baroness Howarth of Breckland: I make one point for when the Minister takes this issue away. The forceful point that he made in his reply was about the capacity for the new commission to be able to change its priorities to meet the requirements set for it. I have every sympathy, having been a regulator in four different kinds of services. I understand that point, but what the Minister has not addressed and what I hope he takes away is the real concern that that change of priorities might result in the health service taking over social care and social care being lost in the mire of all the other services’ demands, which are huge. I hope that the noble Lord will hear that point, as he has not addressed it in his reply.

Lord Darzi of Denham: I hear that point very strongly. I am currently busy carrying out the next stage review. We need to stop looking at healthcare and social care as separate entities and start looking at them through patients’ eyes. If we achieve one thing, it should be to break the barriers between the two, as the importance of one cannot be at the expense of the other. I strongly believe that and will take that point back.

Baroness Barker: This has been a lengthy but immensely valuable debate. In summing up, I begin by saying that those of us who chose to put down amendments did so in the certain knowledge that before the ink is dry on this Bill, when it becomes an Act, there will be major change within the health service. Every one of us knew that, so what we proposed to the Committee

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did not fall into the trap of being time-specific or inappropriate. The only certainty in the NHS is that there will be change at an ever-increasing pace.

One of the most helpful contributions was that of the noble Baroness, Lady Howarth of Breckland, when she repeated the statement that she made at Second Reading that this Bill is not about improving services but about improving regulation in order to improve services. That is a key point; it summarises the need for the Healthcare Commission to have not only functions but objectives, because those objectives will be realised only by other organisations. It cannot achieve them on its own. That is why I went down the route that I did, rather than the one proposed by the noble Earl, Lord Howe, whereby the duties are put on the commission itself.

It is important that those objectives are explicit and are there for all to see. That includes providers who, as the Minister said, have to share those objectives, too. I disagree with him about there being too many objectives and that they are too tightly worded, but then I would.

It was useful to listen to the experience of the noble Lord, Lord Sutherland, about the role of regulators and the key point about regulators providing advice to government. He will, I hope, understand that from where we started with the Bill, getting the duty to provide advice to government seemed a step too far to begin with. Nevertheless, he is absolutely right.

5.15 pm

I take the point made by the noble Baroness, Lady Finlay, about choice being wholly and utterly dependent on resources. If we had gone into that territory, we should simply have proposed a paragraph asking the regulator to perform miracles. It just cannot do that, but it can work with providers to extend the practice of choice within existing budgets.

That picks up the point made by the noble Lord, Lord Harris. He is absolutely right to say that no regulator can function wholly outwith the scope of government policy. That is why the list of objectives is as it is. Some of us happen to think that promotion of choice in the health service is a bit ambitious, but it is the stated policy of all the major parties at the moment. There is a difference between the rational expectation that any regulator will work within the framework of government policy and laying it open to being dictated to by the Secretary of State—precisely for the reason that the noble Lord gave. We are talking here about such an immense field that it must be tempting for any Secretary of State to move the regulator's work from one area to another to suit political fashion. I hope that we can pick up on that point.

The noble Baroness, Lady Masham, asked what happens when regulators get it wrong. The answer is: look at what happened to the Financial Services Authority. However, that reinforces the point that we need to ensure that there is independence.

I disagree with the noble Lord, Lord Darzi. I do not think that we are just talking about functions; I think that we are talking about objectives, but I warmly welcome his response. He will be as aware as the rest of us of the extensive concern expressed by all parts of the lobby about the absence of such provision, but I

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listened to what he said and I look forward to having further discussion about including a statement of principles in the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lipsey moved Amendment No. 2:

The noble Lord said: I rise mostly to apologise to the Committee. As the Deputy Chairman and others have recognised, it is my 60th birthday today. Of course, by far the nicest way to spend it would be to be in the Committee for the full duration of its proceedings discussing regulation. Unfortunately, I have a social function for which I have to leave at 5.30 pm and which people are travelling many hundreds of miles to attend. I am obviously in the hands of the Committee. I could move the amendment but would not be able to stay for the whole debate and would have to catch up with it in Hansard. I should appreciate the guidance of the Committee—I look round to see whether noble Lords nod—on whether it would be content for me to proceed on that basis.

Baroness Barker: On behalf of the Committee, I express our desire that the noble Lord should get off to enjoy his bus pass as soon as possible.

Lord Lipsey: The noble Baroness exceeds even her usual kindness. I thank her very much indeed. I shall be very brief and look forward to reading the rest of the debate.

I will briefly repeat the point that I made at Second Reading. I make no bones about it: I should like the Bill to come into force in 3013 or 4013, not 2013. I am aware that CSCI, which has given us all such good briefings on this, has called the Bill premature. On that basis, it seems more sensible to aim to postpone its introduction for further consideration than to suggest that this bit of it, at any rate, should not happen at all.

Since 2002, we have had a reorganisation of the regulation of social care—probably a justified one. We have also had a re-reorganisation of social care. Now, within five years of starting that process, we are presented with a proposal for a re-re-reorganisation. I do not want to go over all the ground about the cost of reorganisation, although I shall refer to one element in it that was beautifully set out by Sir Ian Kennedy in his speech on the subject that many noble Lords will have read. He is in an even better position than those of us around this table to know about those costs.

This to me is a reorganisation of a reorganisation of reorganisation—re-re-reorganisation run amok. We should leave it longer before deciding that the present system cannot be made to work. The objectives of getting social care, mental healthcare and healthcare to work together can be achieved in many ways short of this proposal. I speak as a veteran of the Government’s attempts to get health and social care to work better together in other aspects since the days of the royal commission on which the noble Lord, Lord Sutherland, and I sat. That is my first point.



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My second point—if one is allowed to make a non-partisan political point in this House—is as follows. Let us suppose that the Bill goes through as drafted and let us suppose—heaven forfend—that there is a terrible problem, which I imagine would be most likely to happen in a home for the elderly, although it could happen in a mental healthcare home, or, indeed, in the NHS. Let us also suppose that there is a plausible case to be made at that time that the reason that the regulator’s eye was not on the ball was that it was busy re-re-reorganising. Usually, accountability in this area is pretty clear. It is the regulator who is responsible for regulating, but in the circumstances that I have described, what is the regulator going to say—truthfully or not? It will say, “Not my fault. It’s the Minister’s fault. If we had not been busy re-re-reorganising, this would not have happened”. In such situations, it is possible to imagine—heaven forfend—that at the extreme people will have died as a result.

I always appeal to Ministers on grounds of principle, but Ministers collectively should think also of self-preservation in this case. It would be a disaster if what I described happened. They would not be able to say that they had not been warned, because they have been warned in both Houses. Ministers should at least pause to consider—although I do not ask for a decision this afternoon—whether this is truly a wise risk to run at this time. I beg to move.

Lord Ramsbotham: I apologise that I was unable to take part at Second Reading but I strongly support the amendment, because it reminds me very much of my immediate reaction when I heard of the Chancellor’s intention to merge 11 inspectorates into three. It reminds me of a very short regulation that I once found on a military wall, which stated, “A breach of common sense is a breach of the rules”.

When we discussed the merger of the inspectorates of police, probation, prisons and courts into something called the Inspectorate for Justice, Community Safety and Custody, I reminded your Lordships that the proposal was not a good idea because it was a confusion of three separate functions, all of which are required in public sector bodies, all of which are carried out differently and all of which, as the noble Lord, Lord Warner, said, have different scopes, functions and purposes. Those functions are regulation, audit and inspection. What concerns me is that this proposal repeats exactly the same mistakes as were made in that previous proposal, because it confuses the three separate functions. Indeed, I noticed that in his closing speech at Second Reading the Minister described the proposed new body as being both a regulator and an inspectorate. It cannot be both. Having been an inspector, I know what would be involved—I had to be a regulator as well—and I certainly did not carry out inspection as an audit, because that would have been entirely unclear.

What also worries me about this is what has been hinted at by my noble friend Lady Howarth: the submergence of social care, in this case under health, which is the major player in this proposal. In the same way, I am extremely concerned at what has happened to CSCI, which has been split in two. Half is going under education, as the noble Baroness mentioned,

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and is in danger of being submerged there under the style of an inspection or audit carried out by Ofsted, while the elderly will remain with the Department of Health together with mental health, which is yet another different function. The loser in all this is social care—the care of children and the elderly, both of whom have mental health needs quite apart from any other needs.

I am meant to be in the Chamber now discussing something to do with young people in care. Until the reorganisation before the re-reorganisation, they were part of an organisation that was designed to look at care holistically, but quite deliberately the Government are breaking that up. This is desperately unwise. That is not to say that it is not a good thing to bring mental healthcare, healthcare and social care closer together in the care of the elderly, but that does not need a merger. The situation that will inevitably arise if you bring three specialist organisations together is that each of them will be weakened by trying to compromise. That lesson is learnt over and again. It is the lesson in IT, for example: big systems crash when you try to amalgamate them. Distributed databases with their own strengths that can be interrogated and can work together are the best way to proceed. The classic example, which we debated in this House only last year, was the very good report on safeguarding children that was led by CSCI. It did not organise everyone but had experts from all the other inspectorates coming together and working for a common purpose.

The amendment is absolutely right. It says, “Hang on. Halt. Throughout Second Reading CSCI was praised almost universally for what it was doing—for the standards it was setting, the paths it was treading and the pioneering it was doing. It hasn’t yet delivered what it was given to do and now you’re breaking it up”. I hope that the Minister, in the same spirit in which he has taken away the previous amendment to look at the question of the purposes and principles, will do the same with this one, as I do not believe that the regulatory impact assessment is a full and proper assessment of all the implications of what is proposed. I hope that in doing so the Government will consider what is being done to social care as a whole by splitting it in two and dividing its expertise, when expertise is crucial in all aspects of social care.

5.30 pm

Lord Low of Dalston: I, too, support the amendment. Indeed, the noble Lord, Lord Lipsey, gave me advance warning that he might have to duck out of the debate prematurely and he asked me whether I would listen carefully to what the Minister had to say and respond afterwards. I shall do that. As I imagine that he will probably have left before I sit down, I join everyone else in wishing him many happy returns. I hope that he has a good party this evening.

As I suspect is the case with the noble Lord, Lord Ramsbotham, who has just spoken, I am against this merger, as I made clear at Second Reading. I do not think that a merger of these commissions makes very much sense and most of the arguments suggest that it should not proceed. For example, bringing services together does not necessarily mean that you should

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bring the regulators together. As has often been said, the sectors being regulated are very different and different models of regulation from one to the other may well be appropriate. The merger will be very costly and the savings looked for have largely been made already—fully by the Healthcare Commission, and CSCI is well on the way to achieving the savings that the Treasury has asked of it. The arguments that have often been deployed suggest that we should not go ahead with the merger. No doubt these arguments will feature again as the Committee goes further through the Bill.

However, at the moment we are talking about postponing the merger and I shall confine myself to considerations that suggest it should be delayed, which is what the amendment seeks. Both CSCI and the Healthcare Commission say that from their point of view the merger is premature. If that is the case and that point is taken, the very least one should seek to do is to delay the implementation of the merger, which has all kinds of undesirable features.

I would deploy three arguments for a postponement of the kind sought by the amendment. First, as has been pointed out by other noble Lords, this is the third shake-up of social care inspection since 2002. Inevitably this will be disruptive and undermine continuity in the regulation of these sectors. As Sir Ian Kennedy said in the statement that he issued to the Public Bill Committee in another place:

Someone else described returning to first principles as reinventing the wheel.

All that sits uncomfortably, says Sir Ian, with an urgent desire for stronger regulation and safer healthcare, as expressed in a number of speeches by the Prime Minister and the Secretary of State for Health. It seems more likely that the policy will, at a critical moment, set back the development of the culture of safety.

My second reason for seeking a postponement is that other models to achieve the desirable end of bringing together the regulation of health and social care while avoiding the cost and distraction of new legislation have been advanced but have not been adequately explored. For example, the health and social care sectors are significantly different, so different models of regulation may very well remain appropriate, despite the new legislation. None of that seems to me to have been gone into adequately.



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At Second Reading, I referred to the National Audit Office guidance on mergers of public sector bodies. I then asked the Minister whether any of the injunctions which the National Audit Office has given to those undertaking such mergers has been complied with in promoting such measures. For instance, have the Government followed the recommendations of the National Audit Office when considering the merger of regulators? Have they undertaken due diligence, cost-benefit or risk analysis, and have they established measurable success criteria for the merger? It would be very reassuring to have the Minister's assurance on those points.

Finally, in February 2005, a Department of Health review concluded that the health and social care inspectorates were fledgling organisations that needed time to establish themselves independently. Indeed, the review of the noble Lord, Lord Darzi, is proceeding at the moment. It seems that every other health reform except this one has been put on hold pending the conclusion of his review. Why the exception in this case?


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