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This goes back to the point that I made in Committee—when other noble Lords agreed—which is that putting in place a chair before a Bill has gone through the House shows a lack of wisdom. I raised the point with Ministers at the time and they said that it is not unprecedented. Of course it is not unprecedented and sometimes it makes very good sense. But when an issue is live in this House, it seems extremely unwise to agree a whole set of conditions with somebody under which they will take it, dependent on the Bill remaining unchanged, when the Bill has yet to be put before the House and the opinion of the House on it remains to be tested. I do not blame the noble Baroness, Lady Young of Old Scone, for insisting that she must have a

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free hand on the structures of what is going to go into this and that we cannot have any doubt whatever that it is going to go ahead. If I were in her shoes, which thank God, I am not, I might possibly take the same view.

However, it leaves the House in a most paradoxical position. If every single Peer in this Chamber now and hundreds more go into the Content lobby this afternoon, and if the noble Lord, Lord Darzi, the noble Baronesses, Lady Thornton and Lady Young of Old Scone, are in the Not-Content lobby, the view of the hundreds will count for nothing because they will send it back to the Commons who will send it back to us as originally drafted and we will have achieved nothing. That does not show the respect for this Chamber that I should have hoped from these Ministers and this Government. We should be able to make our views clear and we should be able to do it without the effective veto that I have just described.

I have reflected hard as to whether I should seek the opinion of the House on the amendment. On fine balance, I have concluded that that would not be the right thing to do. My amendment simply asks Ministers to look at this again. It may seem to be a tremendous demand but that is all I am asking. If Ministers oppose this today, even if we pass it in the House, it is a complete waste of time asking them to look at it again because they will look at it with a closed mind. Even if they do not send the Bill back to the other place and we submit it, all they will do is say, “We were right all along”. Ministers usually say that, and that is all that will happen if we vote them down this afternoon. Therefore, I shall not seek to divide the House this afternoon.

I have put my case as clearly as I can and I think that there has been some sympathy for it on all sides of the House. I just ask that before Third Reading Ministers look one more time at the arguments that have been put and at the weakness of the arguments that they have made the other way. I ask them to consider whether they can agree to my proposal or to a variant of it so that, if we go ahead, such a proposal will have the full consensus not only of this House but of the wider regulating community, and we will all be able to go forward in harmony. I beg to move.

Baroness Barker: My Lords, I have considerable sympathy for the arguments advanced by the noble Lord, Lord Lipsey. I agreed with him when we discussed these matters in Committee, and my reason for speaking now is to acknowledge the part that he, along with other Peers, has played in what has been a most interesting and dynamic process of change around this Bill over the past three weeks. During the Committee stage, great wisdom was brought to the subject by Members of this House and by Ministers and the Bill team because they listened carefully to the arguments.

To place the amendment of the noble Lord, Lord Lipsey, in context, one needs to look at the next three groups, which contain significant changes to the Bill. That they have happened is, in part, due to the pressure applied by the noble Lord, Lord Lipsey, among others, and we should acknowledge that.

I have extensive experience of being involved in mergers and I agree with the noble Lord that some of the arguments that have been advanced against a delay

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are not strong. However, although his amendment will not be passed by the House, it affords us an opportunity to ask for one thing. Before we get to Third Reading, this House should ask the existing commissioners to meet Members of the House to enable us to answer the question which, as is evident from the amendments before us this afternoon, has not yet been answered adequately—that is, what form should the commission take? We agree on the overall, broad, outline structure of the commission but it is clear that no one in this House has sufficient experience as a regulator in this field to know what the commission’s precise structure and format should be. As a result of the discussions that we had in Committee, we now know what we want the commission to do and we now have a set of objectives, which will be put forward by the noble Lord, Lord Darzi, in a few minutes, with which we can agree, but we still have a doubt about how the experience of CSCI, the Healthcare Commission and the Mental Health Act Commission can most effectively be brought together in this new body. I hope that I am not putting words into his mouth but I suspect that the noble Lord, Lord Lipsey, would wish to see that process take place between now and Third Reading. If that is his intention, he has my support and I thank him for raising the matter.

Lord Harris of Haringey: My Lords, I have enormous respect for the noble Lord, Lord Lipsey—at least, I always have done in the past and I have known him for a disconcertingly long period. However, the arguments that he put forward this afternoon in support of his amendment, which he told us at a very early stage in the discussion he was not intending to press to a vote, were perhaps some of the weakest that I have heard in your Lordships’ House. First, he employed a traditional gambit, which is to set up the arguments that you say that the opposition to your proposition are going to put forward and then knock them down, but not necessarily set out the most convincing of those arguments, but simply knock down three almost at random. Even when the noble Lord knocked them down, I found it slightly less than convincing.

He said that it is universally the case that the problems of delaying an amalgamation are exaggerated. Like the noble Baroness, Lady Barker, I have had considerable experience of mergers and amalgamations. I can tell him what happens when there is a period when nothing much is happening. People obsess about the implications for them personally. It does not necessarily mean that they rush to the nearest appropriate or inappropriate job, but they obsess about it. They obsess about the positioning of the desks, who has the largest room, and whether the carpets and natural light will be as good, together with all the substantive issues that ought to concern them.

Were the noble Lord to press the amendment to a vote—he has already told us that he will not—and it was passed, its effect would be to produce a period of three months in which very much less work would be done by either the predecessor commissions or the new commissions, because people would be obsessing about minor details. That in itself would be an unfortunate consequence.

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There might have been a very good case for the amendment had the Government not already listened to many of the points made in Committee. When the Bill passes from your Lordships' House, we will have a very different Bill in terms of how the commission is set up and the objectives before it. Had that not happened, a case for delay—three months or maybe even more—might well have been justified, but the Government have listened and have responded. They have changed the focus of the commission; they propose to give it a whole set of clear objectives; they will have improved the Bill substantially. The main argument in favour of the amendment moved by the noble Lord, Lord Lipsey, has disappeared.

The noble Lord then gave us two other arguments that I cannot believe that my noble friend Lord Darzi was going to put forward: the fact that the House of Commons has spoken and the fact that the noble Baroness, Lady Young of Old Scone, has been appointed. Those arguments are not relevant to this point. The question is: do we believe that the commission as now proposed makes sense? Even if we have some lingering doubts about it, everyone is now working on the basis that the new commission will be established. It is difficult to see what will be gained by further delay so that a slightly dubious process can be gone through in which someone will weigh up the arguments and the Government will respond to them—no doubt with the closed mind that the noble Lord, Lord Lipsey, described—apart from three months of attrition while people contemplate their navel rather than carry out the health and social care inspections that are so important and so needed.

Baroness Howarth of Breckland: My Lords, I shall speak briefly on the amendment, because I, too, have lived through change; I have lived through the change of the National Care Standards Commission becoming CSCI. I will not repeat the arguments of the noble Lord, Lord Harris of Haringey, because he described clearly the kind of attrition that happens in organisations. I know that at the moment life is not easy at present in the Commission for Social Care Inspection in terms of staff changes and staff unease.

I admire the noble Lord, Lord Lipsey, hugely, because I was one of the people who spoke most vehemently about the need to prevent this change and, if we could not prevent it, to delay it. However, we are where we are. The Government have moved significantly. I say to the noble Baroness, Lady Barker, who has also made a huge contribution to the movement on the Bill, alongside the Ministers, that I hope that we make further movement on Report. That is what will convince us that the Bill will truly reflect the positions of health and social care going forward together.

As I have said, although this is about inspection, services will follow some of the issues designated by the inspections and we should not delude ourselves that they will not be greatly influenced by the way inspection goes—indeed, I hope that they will be. I am immensely grateful for all that the noble Lord, Lord Lipsey, has done to move this forward. However, because of the problems that a further delay would cause, I agree with the noble Lord, Lord Harris.

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3.30 pm

Lord Ramsbotham: My Lords, I forecast that I would put my name to this amendment when we discussed the issue in Committee. I have listened to what has been said by the previous speakers on the question of delay. There are two reasons that worry me deeply about where we are. Neither of them, perhaps, arises straight from the Bill, but they are related to it.

The first is the word “inspection”, recently used by the noble Baroness, Lady Howarth. I reminded noble Lords in Committee that there are three separate functions involved in the role that we are discussing for the commission: regulation, audit and inspection. They are all needed and they are all different. The differences between them include the fact that it is proper for Ministers to be involved closely with both the regulation and audit of the structure and system. Ministers are involved in making the regulation in the first place, and in its performance as well. The audit will probably be of something that is ministerially ordained. However, inspection must be independent and objective if it is to be proper. It must not do anything to damage its objectivity in the eyes both of those being inspected and of the public, to whom reports are made.

What worries me about the establishment of the commission is that independence of that kind—the reporting of facts, independently judged—is not something that I see there. That is one reason why I am sorry at another casualty of the Chancellor’s Budget speech of 2005, which first saw the demise of both children’s care and mental health care under Ofsted. Now we have seen the demise of the rest of the independent inspectorate of adults, which has been rolled into another huge commission. My concern is as much about what has happened to the care and mental health support for children, because at the time there was not the same degree of fight about it as we had over the proposed inspectorate for justice, community safety and custody. At least the Government had not appointed a chief executive of that before it came to this House. In the Budget speech of 2005, the Chancellor announced the merger of these public sector inspectorates and described it as a cost-saving exercise. There is no cost saving at all. What has emerged from this Bill is evidence that you must have people in the commission dealing with social care, mental health care and healthcare to make it work. One has to support the noble Baroness, Lady Young—I understand all that she must be going through while this is dissected in front of her. However, this is not going to save anything.

My second concern is “compromise”. Although compromise may look convenient, it inevitably weakens all the parts that are being compromised. In 1996, when I was the Chief Inspector of Prisons, all the chief inspectors involved in the criminal justice system—the chief inspectors of prisons, the Probation Service, the police, court services, magistrates’ courts, and social services—looked at working together to see what things that needed to be reported on could be done together. The first thing we came up with was to ask: what information did each inspectorate need of each other in order to do the job properly; what information was

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available; what was difficult to get; and what was not available and why? We published this in a report that we put before Ministers saying, “This is an example of six different organisations coming together to tell you what is needed in order to improve the processes in the areas you are responsible for”. Where is that report? It is sitting on a shelf, because none of the Ministers involved was willing to take responsibility for seeing that all the others worked together.

What worries me about this proposal is that we are in the same situation and that the casualty will not be a paper put together on the subject of information, but social care for children and for the elderly. Therefore, while I hear all that has been said about how everyone wants to get on with this without delay and the problems of amalgamation, I beg that before the Government go ahead they are satisfied that all the casualties along the way have been properly catered for so that we do not end up with a compromise of three different systems, that we have not damaged others, and that we and the people we are responsible for providing health and social care to do not end up in a worse state than before the whole exercise started.

Baroness Wall of New Barnet: My Lords, I support the comments of my noble friend Lord Harris and the noble Baroness, Lady Howarth, in particular around the argument that there is never a good time for change. They both spoke about the changes that they have been involved in, and I too could relate the events involved in several changes. My noble friend Lord Harris gave us a good flavour of the effect of such changes. However, what has not been mentioned is that such a delay would be absolutely catastrophic for patients who are affected by the commission. They would be waiting, like everyone else, to see what came out of the review. It would be unforgivable for Members of this House to get involved in aspects of deliberation and argument that overlook the whole reason that the Government put together the main bodies that will form the new commission. If the noble Lord, Lord Lipsey, has any doubts or second thoughts, he should not press his amendment—I am sure that he will not do so—for that reason alone.

Lord Warner: My Lords, I rise briefly to oppose, uncharacteristically, an amendment tabled by the noble Lord, Lord Lipsey, with whom over the years I have usually been in common accord. I do so as the then Minister who, in the way of the pantomime villain, actually proposed the merger of these three bodies. However, it is worth bearing in mind that that was as long ago as 2004, so the idea that this comes as a great surprise to everyone is a bit of a myth. The change was proposed for a number of reasons. It is fair to say, and with all due respect to the noble Lord, Lord Ramsbotham, that the work in the area of regulation and inspection that was done when I was a Minister revealed discernible mission creep in many of the bodies, as they say in the trade. They grew their functions and their budgets, and indeed many were rather skilful at doing so. There was a need to do a bit of horticultural pruning, and data collection was a good example. But to be fair to the health and social care organisations and some of the other arm’s-length health bodies, they got together

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in order to reduce the huge diversity and increase the commonality of data collection. There have been improvements, although more could be made.

Two areas with particular scope for improvement were commonality of approach and learning best practice in inspection and performance review from each other. The Healthcare Commission has done a great deal of work in this area, relying more on a risk-based approach and self-audit. CSCI could certainly learn a great deal from this. It is unfashionable to say, in any way, that any past body is less than perfect in every characteristic, but the truth is that bodies can learn from each other and improve their performance. Merging would here help to break down what Frank Dobson rather graphically called the Berlin Wall between health and social care. Merging the regulators is likely to help in that area.

I recall, when the 2003 Act was going through, standing in the same position as the Minister and being rather chastised from the Benches opposite about the need to move towards a merger of these bodies in due course. Around 2003, there was a degree of enthusiasm—particularly from the Liberal Democrat Benches, as I recall—for moving towards merging these bodies. We have come a long way since then and there is now a good case for merging. It has not been sprung on everybody. I totally agree with my noble friend Lord Harris: my experience of managing change is not so much that people rush off to get other jobs; they rest on their oars, wondering when the change will come and what they need to do, rather than knuckling down to make it. That makes managing those changes very difficult.

Finally, it is not for Parliament to micromanage change. This is the job of the Executive, once the decision has been taken to merge these bodies and the legislation has been passed. Parliament is not terribly well equipped to start determining the precise way to execute that change. By all means, criticise the Government if it is not done well, but for Parliament to intervene in that process is unlikely to be an effective way of securing good change.

Lord Low of Dalston: My Lords, I will say a word or two more in support of the amendment of noble Lord, Lord Lipsey, whom I must now learn to call my noble friend, before it is finally withdrawn. I recognise that the Government have moved a long way in response to the many arguments that have been deployed over this Bill in Committee. There would be merit in the Government acceding to his request, from this point of view. The noble Lord, Lord Warner, is absolutely right: this merger has not been sprung on us or taken us by surprise. It was announced in the Chancellor’s Budget Statement in 2005 and, as I understand from the noble Lord, Lord Warner, it had been mentioned in dispatches before.

Having been announced by the Chancellor in 2005, it has, as far as I can make out, largely been a fait accompli. It has been given to us by government fiat. We have made progress on a range of issues in Committee, as will become clear on Report. Curiously, the one issue that we have been tiptoeing around is the rationale for the merger itself. Concerns have been expressed,

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perhaps most volubly by the noble Lord, Lord Ramsbotham, who has a good deal of experience in these matters. Some noble Lords have had those concerns assuaged by the moves that the Government have made.

3.45 pm

However, lingering doubts remain and the Government could do themselves a considerable favour by acceding to the terms of the amendment in the name of the noble Lord, Lord Lipsey, taking a further look at the issue and carrying out a quick review of the kind proposed. We have been moving towards consensus, so a review that sets out more fully and clearly than has happened to date the reasons for the merger and the benefits that it will bring could well help to seal that consensus and ensure that the new commission moves forward strengthened in the knowledge that it has the full weight of informed opinion behind it.

Ministers will say that they spoke at length about this in Committee, but my recollection is that their responses largely took the form of saying, “Don’t worry. We’ll take the points you have made on board and attempt to deal with these matters through the way in which the commission is finally set up. You’ll see the fruit of that in amendments on Report”. However, we have not yet heard enough about the fundamental justification for the merger. At Second Reading and subsequently, I asked whether the Government had followed the recommendations of the National Audit Office for the merger of public sector regulators, whether they had undertaken due diligence, a cost-benefit analysis or a risk analysis, and whether they had established measurable success criteria for the merger. Unless I have missed something, I have not had a substantive response on those points. If we could get such a response by way of a review, that would ensure that the merged commission was much strengthened as it set out on its journey.

Finally, I am not too worried by the concern expressed by the noble Lord, Lord Harris, in particular, that if the review were to take place everyone would become obsessed and count the paper clips and the position of the desks and so on. As far as I can see, they are pretty well in that condition already; there is a state of suspended animation in the present commissions. That would not be extended unduly if a quick review were to take place; indeed, it could bring this issue to a quick and reassuring end. I hope that the Minister will give serious thought to the amendment.

The Parliamentary Under-Secretary of State, Department of Health (Lord Darzi of Denham): My Lords, I have listened very carefully to the concerns of the noble Lord, Lord Lipsey, and his proposals in Amendment No. 1 in regard to a further review before the establishment of the Care Quality Commission. Because of the timetable for establishment, such a review would ensure a delay in the establishment of the commission beyond April 2009. Of course I recognise that the establishment of any new body as large as this one is a significant exercise. As pointed out by the noble Baroness, Lady Barker, the contributions to date by noble Lords will undoubtedly make the commission a more effective organisation.

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