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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. Monitor’s 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 Commission’s 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 trust’s ability to operate. Monitor’s 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 2003—consolidated by the NHS Act 2006—to authorise NHS foundation trusts and oversee their operation within the statutory framework for foundation trusts. The amendment would make Monitor a Crown body, changing Monitor’s 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 Monitor’s 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.



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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 you’re 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 Monitor’s 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.



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Baroness Murphy: Before I address the body of the Minister’s response, when was it that the Government changed their mind about their intentions for the status of Monitor?

Baroness Thornton: I am not sure I know the answer to that. I will have to reflect. There have been, I think, three or four Secretaries of State since then. I will write to the noble Baroness.

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 fitting—all 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.

Amendment, by leave, withdrawn.

Clause 66 agreed to.

Clauses 67 to 76 agreed to.

Clause 77 [Publication of programme of reviews etc.]:

[Amendment No. 107 not moved.]

Clause 77 agreed to.

Clause 78 agreed to.

Clause 79 [Reports for each financial year etc.]:

[Amendments Nos. 108 and 109 not moved.]

Clause 79 agreed to.

Clauses 80 to 83 agreed to.

[Amendments Nos. 109A and 109B not moved.]

Clause 84 [Guidance by the Commission in relation to enforcement action etc.]

Clause 84 agreed to.

Clause 85 [Publication of information relating to enforcement action etc.]:

[Amendment No. 110 not moved.]

Clause 85 agreed to.

Clauses 86 and 87 agreed to.

Clause 88 [Unincorporated associations]:

Baroness Barker moved Amendment No. 111:

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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because this clause applies solely to charitable bodies—I believe that that is the case when we talk about unincorporated associations. Before I get down to the specific detail, I want to ask a broad question. Can the noble Baroness explain to the Committee what sort of unincorporated association she believes would be likely to be undertaking regulated services? I assume that she means small residential establishments and so on.

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.

5.15 pm

Baroness Thornton: I hope I make a better fist of explaining this amendment than the previous one, but I cannot guarantee it.

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 individual—or if the organisation is liable vicariously for the actions of its employees—the 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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officer or member, then they, as well as the association itself, are liable for proceedings to be brought against them. The wording of Clause 88 is based on existing legislation, such as Section 207 of the NHS Act 2006.

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 association’s funds. In other words, the association will be found liable and the fine will come out of the association’s 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.

I thank the noble Baroness for tabling the amendments and giving me the opportunity to explain the Bill’s provisions; I hope that she will be content to withdraw the amendment.

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.

Amendment, by leave, withdrawn.

[Amendment No. 112 not moved.]

Clause 88 agreed to.

Clause 89 agreed to.

Clause 90 [Electronic communications]:

[Amendment No. 113 not moved.]

Clauses 90 agreed to.

Clause 91 agreed to.

Schedule 5 [Further amendments relating to Part 1]:

Baroness Thornton moved Amendment No. 114:



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(a) their functions under Chapter 4 of this Part;(b) their functions under Chapter 6 of this Part;(c) their functions exercisable by virtue of section 5(b) or 8(1) to (3) of the Care Standards Act 2000;(d) their functions under section 80 of the Children Act 1989;(e) their functions under the Mental Health Act 1983 in their capacity as the regulatory authority (within the meaning of that Act);(f) any functions exercisable by them by virtue of paragraph 163(1) of Schedule A1 to the Mental Capacity Act 2005.

On Question, amendment agreed to.

Baroness Thornton moved Amendments Nos. 115 to 116A:

“Local Government Act 1999 (c. 27)“Regulation of Investigatory Powers Act 2000 (c. 23)“Freedom of Information Act 2000 (c. 36)(a) omit the entry for the Commission for Healthcare Audit and Inspection and the entry for the Commission for Social Care Inspection, and(b) at the appropriate place insert—

On Question, amendments agreed to.

Schedule 5, as amended, agreed to.

Clauses 92 and 93 agreed to.

Schedule 6 [The Office of the Health Professions Adjudicator]:

The Earl of Onslow moved Amendment No. 117:

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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Human Rights Act affected people in old people’s homes, I initially thought that it was nothing to do with them; we were going off on a tangent and it was an unnecessary inquiry. However, I was eventually dragged around to the view, which I have now accepted, that it is important that the Human Rights Act should be part of the care of old people.

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 Earl—and it is a delight to have him with us again.


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