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I hope I have assuaged the anxieties of the noble Duke, the Duke of Montrose, who as ever is zealous in his concern about the interests of—I give way to the noble Baroness.
Baroness Carnegy of Lour: My Lords, I did not mean to interrupt the Minister but I have a question for him, which I think is my right. The CBI welcomes the fact that energy is a reserved matter, because its members have businesses north and south of the border. In view of the costs that are implied in the order for firms in Scotland, have the Government consulted CBI Scotland on this order as well as the CBI south of the border, and what was its response?
Lord Davies of Oldham: My Lords, I cannot answer that directly, but I assure the noble Baroness that the moment the directive became enforceable upon all member states, the Governments of all member states addressed themselves to how to enforce the order. As a consequence this order does have costs, but it will have long-term benefits for industry and for wider society when it is implemented. The noble Baroness will recognise that the costs and benefits were going to be enjoyed by Scottish industry irrespective of which agency was the enforcer. All the order does is locate a greater amount of that enforcement in Scotland by the Scottish Environment Protection Agency, which has direct obligations under the directive for powers that it enjoys at present. All we are doing is enhancing SEPA’s capacities at the expense of the central UK Government’s responsibilities, because we are devolving that element of responsibility.
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Within that framework, therefore, it cannot be contended that Scotland looks on this order with disfavour—far from it. Scotland is gaining to its advantage administrative simplicity and straightforwardness in implementing an order which it would in any case have to follow even if it were imposed under parts of the Energy Act 1976 and the reserved powers of the UK Government.
Baroness Carnegy of Lour: My Lords, I appreciate what the Minister says, but where a firm operates north and south of the border it is being asked to consult two different bodies now. It is obvious that that will involve extra cost, and it may get different answers from the two bodies. I understand and note that the Minister said that no consultation with the CBI has taken place.
Lord Davies of Oldham: My Lords, I reassure the noble Baroness that we must not rush our fences. We are seeking by way of the order to devolve matters to Scotland, after which the Scottish Ministers will have to propose the regulations. How they propose and carry out those regulations is their business, but they would be naive in the extreme if they did not consult the Scottish CBI, as I am sure they will, because that consultation has taken place at the English level.
Lord Maclennan of Rogart: My Lords, if a company which operates both south and north of the border has to make application for planning regulations, it will have to subject itself to different regimens north and south of the border, will it not? That is implicit in operating in Scotland and England. That could be true also for energy, installation and pollution issues. However, if one body is in charge of those installation issues in Scotland, it cannot make sense to fragment the responsibility for part of that installation in Scotland and translate to two bodies the decision-making for a purely Scottish operation. This is an entirely sensible solution to that potential problem.
Lord Davies of Oldham: My Lords, I am grateful to the noble Lord for expressing it with greater clarity than I had done. He is absolutely right: that is the purpose behind the order, which is benign in intent. It seeks to give to Scotland a more orderly structure of implementation in circumstances where otherwise, because the energy part was not devolved, Scotland would be faced with implementation by its own Scottish Environmental Protection Agency and by an agency operating on behalf of the UK Government.
I reassure the noble Baroness, Lady Carnegy, that when it comes to the Scottish dimension of enhancing these powers, the regulations are the responsibility of Scottish Ministers. Neither she nor I have the slightest doubt that they will consult the Scottish CBI and all others who have an interest in the matter, as we would ordinarily expect.
On Question, Motion agreed to.
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Health and Social Care Bill
7.44 pm
Consideration of amendments on Report resumed.
Clause 2 [The Commission's functions]:
Baroness Thornton moved Amendment No. 7:
The noble Baroness said: My Lords, it will be convenient also to consider government Amendments Nos. 9, 12 and 14. I note Amendments Nos. 10, 11, and 53, tabled on behalf of the Joint Committee on Human Rights, which are also in this group. I have considered them carefully, but I shall wait until I hear the arguments behind them before responding.
During Committee, we had a helpful discussion about what the commission’s objectives should be and the importance of setting them out clearly at the start of the Bill. It also became clear that the drafting of the beginning of the Bill, in particular Clause 2, was perhaps not as accessible as it might be.
I hope that all noble Lords will agree that the proposed changes allow more straightforward references to health and social care services and the people who use them, and that, together with the new clauses that I shall describe in more detail, they deliver a clear statement of the commission’s core functions, objectives and matters to which it must have regard. I am pleased to confirm that the Commission for Social Care Inspection, the Healthcare Commission and the Mental Health Act Commission have welcomed the amendments.
I believe that we all agree that the primary purpose of the commission is to protect the interests of those who use both health and social care services. Government Amendment No. 9 therefore proposes an objective for the commission to reflect this. It gives the new commission a clear, succinct focus on service users. As reported in the Guardian last Wednesday, it will,
Importantly, it clearly refers to social care as well as health. I hope that this will reassure noble Lords that the Care Quality Commission will protect and promote the health, safety and welfare of users of social care as well as healthcare, as has always been our intention.
Amendment No. 9 also gives greater prominence to the three outcomes that the commission should help deliver through carrying out its functions; namely, improvements in the services that people receive; delivery in a way that focuses on the needs and experiences of the people who use services; and encouraging the best use of resources. Again, these clearly extend to both healthcare and social care users.
There are of course other issues to which the commission will need to have regard. I listened carefully to the debate about whether we had included the right issues and expressed them in the right way. I hope that noble Lords will agree that we have reflected in government Amendment No. 12 the concerns that we heard in Committee. It sets out in a new clause the matters to which the commission must have regard.
In particular, there was a strong feeling that the Bill should set out more explicitly how the commission
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Concern was felt that the commission should support the rights of all people who use services, not just those of children and vulnerable adults. Amendment No. 12, therefore, requires the commission also to consider the rights of all those who use services, with specific reference to those detained under the Mental Health Act or deprived of their liberty under the Mental Capacity Act.
As discussed in Committee, not all providers are public authorities for the purposes of the Human Rights Act. The amendment, in contrast, emphasises the importance of protecting and promoting the rights—in their broadest sense—that we all have. We should also remember that, as we have previously committed, the regulatory regime should reflect the principles of the European Convention. This demonstrates the importance that we place on this issue, although I know the noble Lord, Lord Dubs, has tabled amendments to include additional references to rights in the commission’s objectives and I look forward to hearing what the mover has to say.
Government Amendments Nos. 7 and 14 are simply technical amendments that streamline the first few crucial clauses and ensure that the definition of health and social care services is the same throughout Chapter 1. I hope that this demonstrates that the Government share the aspiration of noble Lords for the new commission to have a clear objective, focusing on both health and social care, and that the key issues raised in debate are now reflected in the issues to which the commission must have regard. I therefore urge noble Lords to support the amendments. I beg to move.
Baroness Cumberlege: My Lords, it is very difficult to get this right without sounding like a creep and being patronising, but I want to thank Ministers for the consideration that they have given to this Bill—it is about 300 amendments that we have collectively put forward.
The noble Baroness, Lady Howarth, described the eight days in Grand Committee as group work. She is right. There is something deliciously awful about being banged up in the Moses Room for eight days, but it brought us together and engendered great respect between us. In addition, we have had our rewards, which would not have been possible if we had not had such responsive and thoughtful Ministers.
I am delighted to see the group of amendments proposed by the Minister as well as the new clause, “Statement on user involvement”, which follows in the next group. I think that this Bill was unwanted and unloved in its conception. It has been hard to find a group in the country that supports it. Usually with legislation there are a few champions, but apart from the architect, the noble Lord, Lord Warner, it has been hard to unearth them. However, because of how Ministers
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It is very difficult to understand the resistance that there was in the other place. That may be because they do not have the right Ministers—it may be because they see amendments as a challenge to their virility. We, on the other hand, are past it, so I suppose we do not fight in quite the same way. I think that these objectives and the matters to which the commission must have regard are about right. I could quibble with one or two words, but I think that that would be churlish. I congratulate the wordsmiths who have fashioned such a good result. They have encapsulated most of what we have sought. I am pleased to see retained in subsection (1)(e) of the proposed new clause in Amendment No. 12 that the concept of action by the commission should be “proportionate to the risks” involved, and that it should target its actions only where there is need.
I notice in new subsection (2) that:
“In performing its functions the Commission must also have regard to such aspects of government policy as the Secretary of State may direct”.
I fought that battle. I have lost it, and now I gracefully retire. I am not disappointed. I think that the gains we have acquired through the Committee stage outweigh the losses. I support the amendment.
Lord Campbell-Savours: My Lords, I want to say a few words on proposed new subsection (1)(e) referred to by the noble Baroness, Lady Cumberlege. What I have to say arises out of a conversation I had with a provider. Paragraph (e) says,
- “the need to ensure that action by the Commission in relation to health and social care services is proportionate to the risks against which it would afford safeguards and is targeted only where it is needed”.
“Where it is needed” is the judgment of the commission. It was put to me that that might be the peg on which someone who felt they were being unreasonably targeted might want to bring legal action against the commission, which would defeat, as I understand it, the purposes of the Bill. If they were targeted and felt penalised, they would argue with the commission, “You are acting unfairly and unreasonably”. Do the Government feel that that wording is somehow insulated from the possibility of any legal action?
Baroness Masham of Ilton: My Lords, I am very concerned that prison health is not mentioned in the Government's bundle of amendments. The NHS is now responsible for prison health. This is very important. One of my concerns is that many people in prison have mental health problems, and some of the most complicated problems are those prisoners with dual diagnoses—mental health and addictions. The rise in infections such as hepatitis is also of concern.
We have some very large prisons. Prisoners may fall through the net of care. If the need for inspection of health and social care is not written in this Bill for prisons, it may well be neglected by the commission, which will have an enormous amount to do across the
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I would like health and social care, including mental health, included in the new clause in Amendment No. 12, “Matters to which the Commission must have regard”. I hope that the noble Lord, Lord Darzi of Denham, will visit a few prisons and discuss the health needs of these institutions. With the reduction of resources by 40 per cent and reduced inspections by the CQC, I feel worried that prisons may be neglected and forgotten about.
Baroness Stern: My Lords, I would like to respond to the invitation from the Minister to speak to Amendments Nos. 10, 11, and the consequential—
The Deputy Speaker (Lord Brougham and Vaux): After I have put Amendments Nos. 7 and 8 and moved on to Amendment No. 9 the noble Baroness can speak to her amendments, but she cannot speak to them at the moment. The noble Baroness wants to speak to Amendments Nos. 10 and 11, which are amendments to Amendment No. 9. I have not put Amendment No. 9, so she cannot do so yet. I want to put Amendment No. 7 first, then move on to Amendment No. 9, and then call Amendments Nos. 10 and 11 in the name of the noble Baroness, Lady Stern. To be in order, the noble Baroness, Lady Stern, cannot speak to her Amendment No. 10 as an amendment to Amendment No. 9 because Amendment No. 9 has not been called. I want first to get rid of Amendment No. 7.
Baroness Masham of Ilton: My Lords, are they not in the same group?
The Deputy Speaker:My Lords, Amendment No. 9 has not been spoken to, so I cannot call Amendments Nos. 10 and ll. Perhaps I may put Amendment No. 7.
On Question, amendment agreed to.
Baroness Thornton moved Amendment No. 9:
(1) The main objective of the Commission in performing its functions is to protect and promote the health, safety and welfare of people who use health and social care services.
(3) In this Chapter “health and social care services” means the services to which the Commission’s functions relate.”
The noble Baroness said: My Lords, I beg to move.
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Baroness Stern moved, as an amendment to Amendment No. 9, Amendment No. 10:
The noble Baroness said: My Lords, I apologise if I misunderstood the position. I would like to respond to the Minister on behalf of the noble Earl, Lord Onslow, the noble Lord, Lord Dubs, and myself and speak to Amendments Nos. 10, 11, and Amendment No. 53, which is consequential. These amendments are not agreed by the Joint Committee on Human Rights; they arise as a result of the Government's response to earlier committee proposals and are totally in accord with the thinking of the Joint Committee on Human Rights on the Bill.
Amendments Nos. 10 and 11 amend government Amendment No. 9. They put a reference to “rights” in the objectives of the commission. Amendment No. 53 is grouped with them. It is a definitional clause that defines “rights” as inclusive of the,
I warmly welcome the Government’s amendments in the group. In Committee, it was clear that there was considerable support for ensuring that health and social care delivery had to be within a human rights framework, which really means nothing more demanding than that every human being should be treated as an individual with dignity and respect. We heard many examples in Committee of reasons why this should be taken more seriously, particularly from the noble Lord, Lord Campbell-Savours.
The Government listened to that and have tabled Amendment No. 9. We, together with a range of other bodies, warmly welcome the Government’s amendments in the group, and I echo the words of the noble Baroness, Lady Cumberlege, about how the Government have responded to the points we made.
These amendments propose that the CQC’s main objective should include a requirement to protect and promote rights. Currently, the main objective is limited to the protection and promotion of health, safety and welfare. We believe that the CQC should perform its functions for the general purpose of encouraging,
rights of service users, rather than the government amendment, which is limited to encouraging a focus,
of users. We have included the definitional clause, proposed in Committee, to define “rights” as inclusive of,
8 pm
The amendments to which I am speaking today seek to go a little further than the Government have done. We suggest that this very welcome inclusion of rights should not just appear in matters that the commission should have regard to but should appear also in its objectives. The very helpful briefing I have had from Help the Aged supports the view that the commission should have a clear remit to,
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