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Furthermore, what especially concerns me is that the amendment risks confusing the different roles of the commission and Monitor. The commission is being established to ensure that all providers of health and social care services maintain the required levels of safety, service quality and governance. Monitors specific role is to ensure that foundation trusts are financially strong and demonstrate the quality of governance to operate autonomously as public benefit corporations.
In that context, the amendment significantly weakens the Commissions enforcement powers. It is vital that the Commission has strong enforcement tools that it can exercise independently and swiftly when necessary to ensure the safety and quality of all services. For example, when the commission responds to a safety or quality failing with a warning notice, the NHS foundation trust will be responsible for delivering the necessary improvements. Monitor will work with the NHS foundation trust to ensure compliance, because it will be concerned about the impact of enforcement action on the NHS foundation trusts ability to operate. Monitors powers of intervention are available and will be used if required. If the provider fails to correct the problem, the commission, taking account of advice from Monitor, may undertake further enforcement action to protect patients using the services.
Turning to Amendment No. 212, Monitor is an independent body corporate established under the Health and Social Care Act 2003consolidated by the NHS Act 2006to authorise NHS foundation trusts and oversee their operation within the statutory framework for foundation trusts. The amendment would make Monitor a Crown body, changing Monitors classification from non-departmental public body to non-ministerial department status.
We do not support the amendment; I cannot satisfy the noble Baroness. NDPB status gives Monitor independence within its remit while maintaining strong public accountability to Parliament via the Secretary of State. As an NDPB, Monitor has established a reputation for its independence, competence and rigour that is widely recognised. Its classification has not compromised the way in which it operates. We are not aware of any scrutiny of Monitors independence nor has its classification become a matter of public concern.
Subject to legislation, the CQC will be established as a non-departmental public body. That is the most appropriate structure for that organisation and we do not think it is appropriate to have differing arrangements for the CQC and Monitor. I therefore ask the noble Baroness to withdraw the amendment.
Baroness Cumberlege: Before the noble Baroness does that, would the Minister enlighten me a little? In this part of the Bill we have very few friends. Normally when we have a Bill there is a body of people who say, Yup, what youre doing is absolutely right, but it has been hard to find that constituency with regard to merging these three bodies. In opening, the noble Baroness, Lady Murphy, said that here we have two regulators with no boundaries and with overlapping powers. We have a situation that could end up in quite a muddle. I take the points that have been made about people knowing exactly who is going to regulate and who is going to do what. I wonder if the Minister thinks that this is an area where the two bodies should get some guidelines together so that everyone knows exactly who is doing what and when.
Monitor has been sensationally good. When one sees the amount of fear and anxiety there is about doing well in the people who are going before Monitor in order to become a foundation trust, including among the non-executives, one can see why it has been such a good regulator. If all the institutions become foundation trusts, do we have an opportunity here for Monitor to regulate the hospitals so that more of the work for social care could be in the remit of the new Care Quality Commission? That could go some way towards welcoming some of the thoughts that have been put to the Minister throughout Committee about the separation that we already have.
Baroness Thornton: The fact that Monitor merited two clauses in the Bill shows that the Government recognise the importance of getting this right. Legislation is only part of the story, though, and Monitor and the Care Quality Commission will need to work out in detail how to work together and how to ensure that they do not fall over each other, that they are both effective and that Monitor can continue to be the powerful regulator that it already is.
Baroness Meacher: Does the Minister accept that at the moment the assumption seems to be that all the power will be with the CQC and that it will be for the CQC to consult with Monitor, rather than seeing these two bodies as equal regulators with different responsibilities? I strongly respect the views expressed by the noble Baroness about the value of trying to separate these responsibilities entirely; it would make so much sense.
Baroness Thornton: It is essential for public assurance that the Care Quality Commission takes the same approach to all types of provider. That is our starting point. It is not a question of who is more or less equal, but of how you make both bodies work effectively together. The existing legislation sets out Monitors statutory powers to intervene, and the new legislation will give the Care Quality Commission statutory powers to apply sanctions. The two bodies have to work out how best to apply the best of what they do.
Baroness Murphy: I thank the Minister for that response. There is no doubt that there have been many discussions, and I know that Bill Moyes, the chairman of Monitor, has met the noble Baroness, Lady Young, on a number of occasions to discuss how they are going to work together. It is crucial that we are clear how this is going to work. It has the potential to create really serious problems, not just for foundation trusts but for both regulators. That is something which the Government should follow with interest when the Bill is enacted.
I will be frank and say that I have no intention of bringing this issue back at the Report stage because it would not be fittingall regulatory bodies are ultimately accountable to the Government for what they do. But I believe that it is utterly crucial that the regulators should sit down together and produce clear guidance to make it absolutely clear to everyone how this is going to work, thus ensuring that there is no confusion. With that, I beg leave to withdraw the amendment.
The noble Baroness said: I shall speak also to Amendment No. 112. These amendments echo the confusion evident in our debates on Clauses 29 and 30 about exactly who is deemed to be responsible when offences take place. They have been tabled separately
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The two detailed questions I want to ask are reflected in the amendments. First, the clause appears, for the purposes of offences under this Bill, to treat unincorporated associations as though they are in fact corporate bodies. I want to ensure that we are not overriding some of the basic tenets of charity law in this legislation. I quite understand that it is not the members of the association whom the Government want to be criminalised, but I should have thought that the trustees of the association should bear responsibility.
My second point is about payment of fines. I quite understand that the Government may want to enable unincorporated associations to pay fines from their charitable funds if that were deemed to be appropriate. I do not quite understand why they want to insist on that, rather than leaving it to be judged case-by-case, where it would be evident whether the offence had happened because of the deliberate policy as determined by the trustees of the association or as a result of an action of an employee in contravention of the trustees policies. That is the sort of issue that normally arises with charities. I do not quite see how what the Government are trying to do is consistent with the tenets of charity law. I seek clarification on that. I beg to move.
I understand that unincorporated association status is usually chosen when a number of individuals agree or contract to come together for a common purpose, which may be of a social nature. Those organisations are usually run informally and are common in the voluntary sector. The noble Baroness is absolutely right: a management committee is elected to run the organisation on behalf of the members. Unlike limited companies, unincorporated associations have no separate existence from their individual members. The association itself has no legal rights, as it is not perceived as a separate entity; nor can an association be convicted of a common law offence.
However, an unincorporated association can be liable for a statutory offence. The purpose of Clause 88(1) is to make it clear that offences under the Bill may be committed by an unincorporated association. That ensures that in cases where the fault lies with the organisation, rather than any one individualor if the organisation is liable vicariously for the actions of its employeesthe association will be prosecuted. That will be the same for corporate bodies under Clause 87. Nevertheless, where an offence has been committed with the consent or connivance of an
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As an unincorporated association is not a legal entity, its assets will be held by members as trustees on behalf of the association. However, it is not appropriate that proceedings should be brought against the trustees of the association, who may be individuals with no responsibility for the actions in question. Any fine subsequently imposed will be paid by the trustees but with the associations funds. In other words, the association will be found liable and the fine will come out of the associations fund.
Amendment No. 112 appears to be designed to allow for individual officers and members of an association to be liable for payment of fines, as well as the association itself. The amendment is unnecessary as Clause 88 already makes provision for individual officers or members to be liable if an offence is committed with their consent or connivance. Where proceedings are taken against an individual officer or member, they will be personally liable for any fines.
Baroness Barker: I thank the Minister for that thoughtful and considered answer. I am glad that she confirmed that my knowledge is still up-to-date. Trustees of an unincorporated association are jointly and severally liable for offences if they behave in a way that is imprudent or knowingly unlawful. It is precisely because trustees need to be clear about their responsibilities that it is important to state in legislation that they have that responsibility whether or not they are incorporated. The standard of judgment may be the same, but they retain that responsibility.
I see the point that the Minister is making: where an officer is found to be acting in contravention of the organisation's policy, they too can be sued, but her answer confused rather than clarified the position of unincorporated associations. However, I realise that this is a minority sport in the Committee. I am happy to take the issue away; perhaps we can clarify it in correspondence later. I beg leave to withdraw the amendment.
(1) The Welsh Ministers may use any information they obtain, or documents produced to them, in the course of exercising any function of the Welsh Ministers referred to in any paragraph of subsection (2) for the purposes of any function of the Welsh Ministers referred to in any other paragraph of that subsection.
The noble Earl said: I am afraid that the Committee has me instead of the noble Baroness, Lady Stern. I apologise for that. When the Joint Committee on Human Rights inquired into how the
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Those in the nursing profession told us that they had had practically no training on this subject, and that this was a lever they could use to make things better. All I am doing here on behalf of the noble Baroness, Lady Stern, in whose name the amendments is tabled, is asking that something to the effect of this collection of amendments should be in the Bill. I am sure the Government will say that it is unnecessary, because they have already said so. We do not agree with them because, it says in my brief, it was suggested that knowledge about how to use these rights to provide a better service to patients and service users was extremely limited. If we could have this in the Bill, it would help a little; it would ensure that these things are understood and, above all, that people are properly trained to use them. That would make things generally better all round and is a good idea. I beg to move.
Baroness Thornton: I feel I should mark the fact that we have now reached Part 2 of the Bill, which deals with the reform of professional regulation. Since this is a brand new topic for the Committee, I thought I would say a few words before I address the issue raised by the noble Earland it is a delight to have him with us again.
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