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If we wrap all this up together, can we really say to ourselves that the picture presented is of an independent regulator? You would have to stretch dictionary definitions fairly far in order to argue that. It is against that background that I have tabled the amendment. I am not saying that it is wrong or improper for Ministers to tell the commission that certain aspects of government policy need to be borne in mind as it goes about its work but, in combination with all the other things in the Bill or things that are absent from the Bill, Clause 2(4) reads badly. It reads as though it could be used as an all-purpose portmanteau device for exercising managerial control from the centre.

In her evidence in another place, Dame Denise Platt said:

Dame Denise was right. The Government say that they want a strong, independent regulator but everything in the Bill points to a regulator that will, in practice, be constrained in setting its own agenda and be dependent in every sense on instructions received from politicians. Personally, I do not think that the Bill strikes anywhere near the right balance and, unless something can be done about it, I think that we may face some fairly difficult and rough debates on Report. I beg to move.

Baroness Knight of Collingtree: I strongly support the comments that we have just heard. Unless we have genuinely independent regulation and an independent

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body, it will not achieve what we all hope it will. In the light of what I have just heard, and my thoughts on the amendment, I do not consider that this body will be free of interference, which is important if it is to do its job properly. I do not want to delay the Committee, as we are proceeding too slowly as it is, but I wanted to indicate my strong support for what has just been said and for the mover of the amendment.

Lord Low of Dalston: I do not want to delay the Committee either, but my name is attached to the amendment and I want briefly to indicate my support for it. I cannot add much to what the noble Earl, Lord Howe, said, as he covered the matters comprehensively and made an exceptionally good case by referring not just to this subsection but to its impact in the context of the Bill as a whole.

I think that we all agree that we want an independent regulator. I am sure that in reply the Minister will say that she agrees with that. However, unless we can be satisfied that a regulator will emerge that can genuinely be called independent and which meets the criteria that we all recognise should be met by an independent regulator, we shall find it very difficult to support this clause, as the noble Earl, Lord Howe, said. In the context of the totality of the Bill, it knocks the nail into the regulator’s independence.

However, I make a suggestion in the spirit of trying to be helpful. I suspect that what is getting in the way here is the wording rather than the concept. As the noble Earl said, nobody would have difficulty with the notion that a regulator, even an independent one, should have regard to government policy; we are not quarrelling with the notion at the base of the clause. However, I think that what is getting in the way is the word “direct”. That is a heavy word. If the Minister could consider that and come back at a later stage with something that softens the provision a bit, I would be surprised if we could not all go forward together.

I have been trying to formulate something but have not yet completely succeeded. Instead of “direct”, I looked at “request”, although I am not sure whether that meets the case. I then wondered why the subsection could not end with “government policy”, and just state, “shall have regard to government policy”. None of us would object to that and I hope that the Minister will be satisfied with it. You could tack on, “shall also have regard to specific requests from the Secretary of State”. That might go a little further and might help. However, so long as “direct” is kept in the wording, we shall continue to be in trouble.

5 pm

Baroness Barker: As noble Lords will appreciate from our debate on the first day in Committee, I strongly support the noble Earl, Lord Howe, in this amendment. I support the amendment more strongly today than I did yesterday, because, in our debates for the past two Committee sessions, I have become increasingly concerned that the Government are failing to hear what is being said loudly and clearly—that the Bill as it stands will not provide us with a regulator

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that is fit and able to regulate social care. My big concern is that the Government seem not yet to have grasped that, although it is entirely understandable that the focus of their attention is acute health—because that is what they fund and provide—the majority of social care is not funded by government and is not provided in the same way.

I take this opportunity to put on the record that my misgivings on this legislation, and everything that has happened under its auspices, are leading me more and more to agree with the noble Lord, Lord Lipsey, that it is bad legislation that we should oppose more strongly than we have done so far.

I agree entirely with the noble Earl, Lord Howe, that of course the Government need to retain the right to require the commission to conduct special reviews and special investigations when there has been a particular problem, as was the case in an acute hospital in Kent before Christmas. However, that should not be a blanket provision to enable the commission essentially to sweep away two years of extraordinarily good work that has been carried out by CSCI and the Healthcare Commission. We are in danger of losing sight of that.

Baroness Cumberlege: I put my name to this amendment in support of my noble friend. I agree with a lot of what the noble Lord, Lord Low, and the noble Baroness, Lady Barker, said. If this brave new commission is to win the trust and respect of the public and those that it regulates in the National Health Service and in social care, and if that trust is to be maintained, it is critical that its independence is maintained. That is a key factor.

Earlier, we discussed NICE. In the area that NICE covers, no politician has dared to interfere. Its independence has been recognised, except when Patricia Hewitt was Secretary of State, when there was uproar: the NHS cried, “Foul! This is not what you should be doing”. I am anxious that the commission, which will have a wide remit, should also have that independence. Monitor, the new regulator, has much more freedom. It is independent of the Department of Health. The NHS Act 2006 states that the independent regulator,

The remit and responsibilities of Monitor, which are very important, are much narrower than the Care Quality Commission’s.

The definition of independence is, “not depending on authority”. Surely what we are all seeking is that the commission should not depend on authority. I am sure that the Minister when she replies will say that it would be very strange if you had a regulator that ignored the breadth of government policy, and the parameters are very broad. Of course that is right. We believe in democracy and at a general election the electorate will vote for the party whose policies they prefer. Once elected, the new Administration’s manifesto commitments and the policies that flow from them are very much respected because we live in a democracy. So there is no quarrel there.

However, as my noble friend and other Members of the Committee have said, we strongly object to the wording of Clause 2(4), which is much too prescriptive.

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It gives the Secretary of State the power to direct the regulator to carry out certain functions that the Secretary of State wants performed. It is not about independence but about control.

Of course there is a worry that the regulator may act inappropriately or ignore government policy, although that is unlikely if she wants to keep her job. If an issue arises, the Secretary of State could well request the regulator to take account of a policy and then make that request public, to use the words of the noble Lord, Lord Low. When we use that device—when the Secretary of State makes a request that is written down and made public—we know that the process is transparent and informs the public of the issues that are being addressed. That seems a sensible way forward. Under the Bill, the Secretary of State always has the ultimate power to change the regulator. Indeed, I think back to when this happened with the gas regulator, who wanted to introduce competition much faster than the Secretary of State in that field thought desirable. I feel strongly about this. We shall return to the question of independence time and time again.

Baroness Knight of Collingtree: It would be very odd if a commission sought to act against a clear law of any Government. Surely any commission in its work automatically must keep within the law. The noble Baroness might bear that point in mind in support of her arguments.

Baroness Cumberlege: I am grateful to the noble Baroness. This subsection should not be in the Bill. It compromises the independence of the regulator to an unacceptable degree. I hope that the Minister and her colleagues will think again.

Baroness Howarth of Breckland: I will be brief. Having tried to rise several times, I have almost lost my impetus. I have been involved in a number of Bills and I have sometimes hoped that a Minister will say, “We will take this away and look at it”. This is such an occasion.

Having worked on numerous non-departmental public bodies and non-ministerial bodies, I understand the need for a balance between understanding the Government’s policy framework—under which, as a member of such bodies, you would be ill advised to fail to work—and the need to be independent enough to express the views that you find in your work on behalf of community groups, user groups or whomever you are representing. Someone will pick me up on the word “representing”, but you know what I mean—the people for whom you are working. That balance has been well worked through.

I hope that the matter will be taken away because, like the noble Earl, Lord Howe, on looking through the Bill I am concerned at the variety of places where the Secretary of State has almost managerial capacity. The exercise of functions in Part 2, where the Secretary of State may specify the programmes of the inspection framework, particularly concerns me. The Secretary of State has every right to inform the body of the Government’s view on how the

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programme might move forward, but the ability to direct and specify it is an extraordinarily difficult thing to have in the Bill.

I hope that the noble Baroness will be prepared to take this away, recognising that most of us who have spoken understand the balance between the need to work within the government framework and the rights of the Secretary of State and the need for that independence that gives a voice to a non-departmental public body.

Lord Walton of Detchant: I have said on many occasions in your Lordships’ House that we are in serious danger of living in an overregulated society. Over the past few years, there has been a huge number of government initiatives, some of them very easy to understand. For example, I was president of the General Medical Council between 1982 and 1989. Subsequently, because that body ran into considerable difficulties for reasons that I do not need to explain, it was overseen, as were the other professional regulatory bodies, by the Council for Healthcare Regulatory Excellence, another Big Brother overseeing the activities of Big Brother. In various clauses, such as this one, the Bill reeks of Big Brother. It is an issue of direction.

I remind the Committee that many years ago the late Lord Chancellor, Lord Hailsham, said that professional self-regulation was one of the glories of a learned and civilised society and that the alternative, regulation by the state, was too fearful to contemplate. That exact phrase was echoed by the noble Lord, Lord Dahrendorf, in his Jeffcock lecture to the Royal Society of Medicine in defence of the UK professions.

As my noble friend Lord Low said, in this clause and many others it is the word “direct” that we regard as being totally unacceptable. It would be possible to modify the wording to make it much more reasonable. For instance, the wording, “the Secretary of State may indicate”, is much less prescriptive and much more acceptable. The Secretary of State could indeed indicate,

as might be taken into account by the new commission. A modification of that nature is essential, because the direction of the Bill takes government control of the commission far too far and is quite unacceptable.

Lord Warner: I will say a few words as the Minister who took the 2003 Act through, which had exactly the same wording as we are discussing here. I seem to recall—from memory, I have not checked Hansard—that I was chided then as being a sort of embryo dictator who was going to ensure that we micromanaged the commission. I think that if you ask the chairs and chief executives of the commissions, they will say that we have not micromanaged them. It is not a bad rule to see past behaviour as a predictor of future behaviour.

If there are other parts of the Bill that noble Lords see as micromanagement, the right thing to do is to amend those parts of the Bill, not to delete this one, which qualifies what comes before it: the functions. I say gently to some colleagues opposite that if a

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democratically elected Government publish a manifesto and are elected on the basis that they will do certain things in relation to the service that is the highest consumer of public sector funding in the country, it is not an unreasonable proposition that the Secretary of State in office, whether a Conservative Secretary of State, a Labour Secretary of State or even—dare one contemplate it?—a Liberal Democrat Secretary of State, should be able to implement that manifesto commitment.

I give the Committee some examples. I recommend to those who want to check them the Labour manifestos of 2001 and 2005, which dealt with choice and targets for improving cancer waiting lists and A&E departments. It is quite reasonable to require the regulator to take account of those obligations in the way in which it inspects.

I am not being fanciful about this, because I think that the Bill can be improved; indeed, I have tabled amendments to do so. Parts of this Bill would not have been framed as they have if I had been the Minister responsible for them. But this subsection does not seem to me to be the right one to amend, because it merely carries forward provisions that have already been made under existing legislation passed by this Parliament.

5.15 pm

Baroness Cumberlege: Is the noble Lord aware of the time when the Department of Health, through its chief executive, challenged Monitor on an area that was specifically about foundation trusts? That was an example of Monitor, which had a strong chair, resisting the challenge. Nevertheless, the attempt was made by the department to take over some of the independence that Monitor quite rightly and through the law had as its own.

Lord Warner: That did not happen on my watch, as they say, but I strongly supported Monitor in the actions that it took in response to what I thought was inappropriate direction by the chief executive of the NHS.

Baroness Thornton: I thank all noble Lords for an interesting discussion. I should say to the noble Baroness, Lady Barker, that we have said several times already that we will take things away and look at them. Indeed, according to my notes, we will be doing that a few more times, so it is not a question of the Government not being prepared to listen. I have listened to the arguments in support of this amendment and I shall explain why we do not want to accept it, but we need also to consider what my noble friend Lord Warner has said. I shall set out why we do not want to change this part of the Bill, but we know that other parts relevant to the issue may need to be looked at.

As the noble Earl said, Amendment No. 22 would remove the power for the Secretary of State to issue directions requiring the commission to have regard to particular aspects of government policy. I say at the outset that we are committed to creating a commission that is no less independent than any of its predecessors. Clause 2(4) carries forward the same wording as the legislation that created the Healthcare Commission

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and CSCI. I refer to Sections 130 and 131 of the 2003 Act respectively, with which my noble friend is probably very familiar. I think that we would all agree that the current bodies have been independent and do not seem to feel any less independent as a result of the legislation that established them. Moreover, I would say that that applies particularly to Dame Denise Platt.

Like its predecessors, the Care Quality Commission will be an important player in the broader regulatory framework. If that framework is to have a positive impact on the health and social care that the public receive, the commission will need to work effectively with all the parts of it. Perhaps noble Lords will allow me to explain that. Both the NHS and local government social services are public services with significant political and policy input. In requiring the commission to have regard to aspects of government policy, all that we are indicating is the expectation, with which noble Lords have generally agreed, that the commission will respect the broad direction that government policy is driving towards. In the fullness of time, the commission almost certainly will be critical of aspects of that policy—indeed, that is exactly what it should be—but it is entirely reasonable that, in monitoring and assessing statutory services, we should expect the commission to take account of government strategy and the policy objectives that those services are expected to meet.

We need to look at this in the context of the agreement made by the Government yesterday to examine the earlier part of this clause in order to establish the right balance. The relationship is reflected in the detail of the Bill. The Secretary of State will set the registration requirements approved by Parliament and the commission will then produce detailed guidance on what different services should do to comply with those. Similarly, for the commission’s periodic reviews, the Secretary of State will set the overall indicators that statutory services will be assessed against, but the commission will determine the methodology by which it conducts those assessments. Its new enforcement powers will apply to NHS providers for the first time and, although registration requirements will be set out in regulations, the CQC will develop its own criteria and methodology for its judgments.

Therefore, we would expect the new commission to take account of government policy without the need for directions to be issued. However, if it did not, I suggest that that would result in inconsistency and confusion for the public, commissioners and providers of health and social care; indeed, it could undermine the credibility of the Care Quality Commission. I do not think that any of us anticipate that that is what will happen.

I hope that I have explained where we are. It is unlikely that we would be prepared to amend this part of the Bill, but I ask noble Lords to see what the balance looks like when we have looked at the earlier parts of this clause and then put that in the context of the rest of the Bill.

Earl Howe: It is the context of the Bill as a whole that I was trying to bring to life. I do not think that anyone would argue with the Minister that precisely this wording is carried forward from previous legislation—I made that point myself—and that there is, as the noble

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Baroness, Lady Howarth, said, a balance to be struck. If this were the only provision of its kind in the Bill, I think that we would all feel more relaxed, but it is not and that is my concern.

Of course, the Government could make a pretty good case for saying that they have not interfered with the Healthcare Commission or CSCI in terms of micromanaging their affairs, but we are legislating here not just for the present Government but for all future Governments on the assumption that this body will be with us for many years. Therefore, what is in the Bill matters. It is not just a question of Ministers standing up and saying, “We have no intention of micromanaging”. We can all accept that assurance in good faith, but we are legislating for the statute book.

I end on a positive note, picking up on the Minister’s final comment. If the Government go away and rethink some of the issues that we have debated in this Room in relation to Clauses 1 and 2, there is a possibility that we will make progress in this area. The introduction of objectives would, I think, serve to rebalance this part of the Bill in a helpful way. I am sure that we all look forward to those discussions. In the interests of expedition, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 23 not moved.]

Baroness Tonge moved Amendment No. 24:

( ) the promotion of sustainable development in relation to such activities.”

The noble Baroness said: This amendment stands in my name and that of my noble friend Lady Barker. We feel strongly that the promotion of sustainable development in relation to any activity undertaken by a government body should be considered. Noble Lords may think that that is covered by paragraphs (a), (b) and (c) of Clause 2(5), on page 2 of the Bill, and particularly by paragraph (c), which refers to,

However, it does not go far enough. The Care Quality Commission will be the main regulator in a huge enterprise. The mind boggles in trying to assess just how big will be the enterprise that it is going to try to oversee.


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