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House of Lords

Tuesday, 22 November 2011.

2.30 pm

Prayers-read by the Lord Bishop of St Edmundsbury and Ipswich.

Energy: Tidal Generation

Question

2.36 pm

Asked By Lord Renton of Mount Harry

To ask Her Majesty's Government what action they are taking to exploit further the United Kingdom's natural resources of tidal power.

Baroness Stowell of Beeston: My Lords, it is important that we exploit our tidal resources to provide energy security, carbon reduction and economic growth. However, it must be done in a manner that constitutes value for money. The Government do not see a strategic economic case for public investment in a tidal barrage in the Severn at the present time, given its very large costs. Instead, our focus is on developing tidal stream and wave technologies. The UK is already a global leader in this emerging sector.

Lord Renton of Mount Harry: I hope I am allowed to say that I found that a very helpful Answer. Will my noble friend suggest to the Department of Energy that it should create something like a United Kingdom tidal energy enterprise that will manage the growth of tidal power? We have been slow to start and there are now a great many players in the field. Does she agree that it is essential to see that all the eventual profit goes not into the pockets of the large electricity companies but into ensuring that there is cheap, available electricity that will save costs for thousands of homes?

Baroness Stowell of Beeston: My Lords, my noble friend is absolutely right about the importance of our tides and the opportunity that they provide in supplying renewable energy. I will of course take back his specific proposal to the department. Perhaps it is worth adding to my previous Answer. The department has not ruled out completely the possibility of a Severn barrage and will consider privately funded projects on their merits. Indeed, the department is currently reviewing a business case from a private consortium.

Baroness Whitaker: My Lords, I have another proposal for the Minister. The coasts of Britain have enormous potential to provide this reliable energy permanently. Will she give consideration to restoring the tide mill at Newhaven in Sussex which, under the Duke of Newcastle in the 19th century, was the largest mill in the country? It could be an educational example of how this power works.

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Baroness Stowell of Beeston: I thank the noble Baroness for that recommendation. I am not familiar with the mill. The department is concentrating its efforts on new technologies associated with tidal stream and wave energy. Certainly in that area much is happening in the industry to progress the innovation that is happening already in this country-we are a global leader. I will consult the department on the idea that the noble Baroness put forward and come back to her as soon as I can.

Lord Walpole: My Lords, will the Minister comment on what is happening at Scapa Flow in Orkney? Things were definitely looking rather exciting about two years ago. Is there any progress?

Baroness Stowell of Beeston: I did not catch the name of the place.

Lord Walpole: Scapa Flow, in Orkney.

Baroness Stowell of Beeston: I am not sure that that helps me very much. Certainly there is a lot happening in Orkney as part of the tidal stream and new technology. The example that the noble Lord has identified may be part of the new innovation that is taking place right there, but I am afraid that I do not have any specific details on that.

Lord Teverson: My Lords, the Government have a very modest target of 300 megawatts of capacity of tidal and wave power by 2020, but how are they going to make sure that there is a balance between the environmental effects of this tidal stream and the renewable energy targets? How are the Government making sure that we sing from the same hymn sheet with the Marine Management Organisation, particularly with the allocation of marine conservation zones? How are we going to stop that conflict and still meet the targets?

Baroness Stowell of Beeston: As part of the UK marine energy programme, the department is working with the Marine Management Organisation and Marine Scotland to establish a working group to consider the approach to planning and consenting for wave and tidal energy. I hope that that will address the concerns that my noble friend has raised.

Baroness Smith of Basildon: My Lords, the Minister has been very helpful and thorough in her answers to questions today. One of the things that she said at the beginning is that there will be no public investment in tidal power. If we are to exploit this natural resource, private investors will need to have confidence in the Government's commitment to renewables. Today in Westminster, hundreds of people, including investors, are lobbying and campaigning against the Government's changes to feed-in tariffs on solar power which will decimate the solar industry. What action does the Minister think that the Government can now take to reassure investors that they are committed to renewable

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energy? Unless urgent action is taken, the Government will have failed in their promise to be the greenest Government ever.

Baroness Stowell of Beeston: This Government are absolutely committed to being the greenest Government ever. On the solar feed-in tariffs that the noble Baroness mentioned, the changes that the Government introduced are precisely to ensure that that industry is sustainable and exists into the future. As to tidal stream and what the department is doing to work with the industry, it has put forward innovation funding of £20 million and it is working closely through the UK marine energy programme, which is chaired by the Minister, Greg Barker, and includes representatives of the technology developers, the utilities, the large industrial organisations and financiers. The Government are committed to supporting this new and emerging industry.

Lord Forsyth of Drumlean: My Lords, would it not be fairer for the consumers of electricity in this country if the costs of these schemes, including the solar power and tidal schemes, were clearly put on their bills so that people would know how much extra they were paying for them? They are subsidised by the consumers. Therefore, this is a subsidy for wealthy people from poor people who are struggling to pay for their energy costs.

Baroness Stowell of Beeston: I share my noble friend's concerns about people subsidising others in the way that he has described. If the Government did nothing on the feed-in tariffs for solar power panels, the equivalent of around £9.50 would be added to the average domestic bill. By introducing the changes that we are proposing, that would be reduced by 2014 to around £2.50 or £3. As to his specific proposal of identifying these costs on bills, I will certainly explore that idea with noble friends at the Ministry.

Baroness Farrington of Ribbleton: There have been complaints from the industries affected by the Government's change of policy on solar power. How can this reassure private investors in tidal and wave power when the Government appear not to listen to the industry, having made commitments?

Baroness Stowell of Beeston: This Government are learning from the previous Government's initiatives by making sure that what we introduce in terms of new subsidies will avoid the need to change the arrangements at a later date and will therefore provide the certainty that the industry looks for.

Climate Change: Durban Conference

Question

2.45 pm

Asked By Lord Judd

To ask Her Majesty's Government what are their priorities for the outcome of the Durban climate change conference starting on 28 November, and what steps they have taken to ensure maximum possible global ownership of the agenda.

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Baroness Stowell of Beeston: My Lords, the Government remain committed to keeping the global temperature rise below 2 degrees above pre-industrial levels. Therefore, at Durban, the Government's priority is to make further progress towards an ambitious, legally binding agreement for all countries to reduce emissions. To ensure a truly global approach in these negotiations, we have been working closely with other developed and developing countries within the EU, the UNFCCC and other fora.

Lord Judd: Is it not essential that at this critical juncture we do not lose momentum? If we are to sustain momentum, is it not also essential that the agenda, not just the matters being discussed, reflects the perceptions and needs of the developing countries, and that without that shared ownership we will be in difficulties making progress? Is the green climate fund not critical to all this? How soon can we expect to see it operational with women and the poorest central to its concerns?

Baroness Stowell of Beeston: My Lords, I refer to the letter by the Secretary of State in today's Guardianbecause he clearly spells out the Government's aim at Durban this year. He said:

"The UK would like to see a global treaty signed straight away but the reality is that some of the biggest economies, both developed and developing, are not yet ready. We aim at Durban to reach agreement on the need for a new treaty and to set out a timetable for its negotiation, concluding no later than 2015".

Developing countries are essential to hitting that target and many of those countries are affected by climate change. In the negotiating process, the relationship between rich and poor countries has sometimes been out of kilter and there has been an imbalance, which is why the Government have taken two specific actions to address this. First, the advocacy fund, which was launched by Andrew Mitchell in September, provides support and training to negotiators from those countries. Secondly, the UK is very active in the Cartagena dialogue.

Lord Lawson of Blaby: My Lords, will my noble friend confirm that in the absence of an agreement at Durban of the kind that she described, Her Majesty's Government will suspend all their unilateral decarbonisation targets post-2020, which damage our competitiveness and threaten our economic recovery to no conceivable purpose?

Baroness Stowell of Beeston: It is a great privilege to be asked a question by my noble friend. I would like one day to be able to provide an answer that will not disappoint him, but I think that on this occasion I will have to. The Government are very committed to achieving the targets that I have already outlined and want to show leadership in this area. The Government are not signing up immediately to Kyoto 2 and want to make sure that before they commit to that, all countries are signed up to and agree to the need for the 2-degree target.

Lord Prescott: My Lords, the Minister may well be aware that I have tried to convince this Government that the negotiations for Kyoto 2 will not be completed

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at the end of Kyoto 1 in 2012. In those circumstances, is she prepared to support the European principle of "stop the clock" when negotiations have failed to meet the timetable and not join with the rich countries, as was almost suggested by the previous speaker, which want to destroy Kyoto, which is not acceptable?

Baroness Stowell of Beeston: The noble Lord is far more experienced in negotiating climate treaties than I am. On his specific question, I have to limit my answer to restating the fact that there are two separate things going on here: Kyoto 2 and a globally binding treaty by 2015. The Government are absolutely committed to the latter. We would be willing to sign up to the former but will not do that until everybody agrees that they will sign up to that 2-degree climate change.

Lord Teverson: My Lords, almost certainly there will not be a comprehensive agreement at Durban. That comes as a surprise to no one. However, there was good progress by the RED initiative around stopping deforestation, particularly in underdeveloped countries. Can my noble friend the Minister assure me that the UK Government will particularly press for an agreement on the RED initiative so that we can stop this major source of emissions and the loss of forest worldwide?

Baroness Stowell of Beeston: I am sure that the Government are working on that, and I am grateful to my noble friend for raising the issue. If there is anything specific that I can offer further to my answers today, I will obviously provide it to him.

Baroness Worthington: My Lords, although the UN process remains blocked by the lack of US participation, will the Minister tell us more about the Clean Energy Ministerial meeting to be held in London next year? Energy Ministers from around the world will be gathering here, and they could potentially sign up to a deal that agrees to reduce the carbon intensity of our energy as soon as possible. This would be a very clear step forward while the UN process remains bogged down by the lack of US participation.

Baroness Stowell of Beeston: I am amazed at the expertise that is coming at me today from different parts of the Chamber. The noble Baroness knows far more about the detail of these issues than I do. On the conference next year that she refers to, our objective is to complete concrete outcomes that demonstrate progress and enhance global low-carbon energy technology development internationally.

EU: Integration

Question

2.51 pm

Asked By Lord Pearson of Rannoch

To ask Her Majesty's Government whether they continue to support European integration.

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The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford): My Lords, my right honourable friend the Prime Minister has described the present situation as,

"an opportunity to begin to refashion the EU so it better serves this nation's interests".

We want to see a European Union, in his words,

"with the flexibility of a network, not the rigidity of a bloc".

The future shape of the EU might well involve more integration in some areas and between some countries, and less in others. Of course, the Government have also made it clear that they wish to see no treaty changes that transfer power or competencies from the UK to the EU in this Parliament.

Lord Pearson of Rannoch: My Lords, I am grateful to the noble Lord. However, the British people have seen through the fiction that the European Union guarantees peace and safeguards jobs. So I have to press the Government: what is it really for? Put slightly differently, I suppose we can all agree that other international bodies such as the United Nations or NATO have an identifiable purpose, but can the Government tell us why we need the European Union at all, not to mention its very own disastrous euro?

Lord Howell of Guildford: I think the British people have a sensible and balanced appreciation of the virtues of living in the European continental area: that it is a mighty single market; that our influence in it is useful; and that when it comes to trade bargaining with the rising powers of Asia, Latin America and Africa, it is very useful to have a bit of muscle. That is a perfectly sensible and common-sense view that, I suspect, prevails in the minds of most of the British people. They may not like some of the aspects of the EU-many of us find these things irritating-but on the whole it seems a reasonable grouping in which to be deeply and actively involved, and that is where we stand.

Lord Tomlinson: My Lords, would the noble Lord agree with me that the only alternative to the word "integration" used in the Question is disintegration or stagnation, and that our future lies in an integrated Europe-within the confines of some of the qualifications that he made-and that any question of encouraging disintegration would be wrong?

Lord Howell of Guildford: To avoid the debate getting too polarised, of course, there are degrees of integration. In this decentralised age, compared with the 20th century, where centralisation and central state dominance were the fashion, people are looking for more flexibility and decentralisation in all sensibly run organisations, including the EU. There may be some areas, as I indicated in my opening Answer, where a degree of integration is more sensible as an alternative to chaos. However, there may be many other areas where the time has come for decentralisation and a returning of powers closer to the people.

The Marquess of Lothian: My Lords, how would the Minister define a European Union that is more of a network than a bloc?

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Lord Howell of Guildford: My noble friend is asking for an answer that would take longer than the patience of the House of Lords could tolerate. The simple answer is that a bloc tends to be a congealed and sometimes compelled form of integration under tight central control, while a network is a much more modern, less fragile and less rigid structure in which exchanges of views and dialogues in addressing new issues can constantly be adjusted in the light of changing circumstances.

Lord Anderson of Swansea: My Lords, do not the ambitions set out by the Minister depend essentially on the concurrence of our partners? What expectation does he have that that will be forthcoming? Is it not a fact that as a result of the economic and financial crisis, there will be strong pressures for more integration in certain sectors? We as a Government and as a country have a choice, either arrogantly to rail against them from outside, or to be part of them and seek to bow them in a way that we want, including on principles of subsidiarity and proportionality.

Lord Howell of Guildford: Some of those aspects are correct, but the noble Lord overemphasises the polarity and the rigidity of the choice. There is no doubt that one of the propositions that is current throughout the eurozone is that the only way forward is towards fiscal union. Indeed, if that is a way of avoiding total chaos in the European markets, it is in our interest, too, that the process should be non-chaotic. That is perfectly clear. However, in other areas, as I said earlier, some degree of decentralisation and flexibility might play a much more useful part in making the European Union fit for purpose in the 21st century.

Baroness Falkner of Margravine: Would it help my noble friend, in answer to the question of the noble Marquess, Lord Lothian, if the networked Europe that he talked about was a flexible EU of variable geometry, in which those that want to join the eurozone can do so, and those that want to deepen the single market for a more competitive open trading system to the benefit of all our citizens can also participate in the decision-making? Should that not be the way forward, not fretting about variable speeds and referendums?

Lord Howell of Guildford: I do not know about my noble friend's remarks on referenda. There is a case for them on certain occasions, as the Government have made clear. However, the broader issue she described is not very different from what we had in the past. This nation and several others are not members of the eurozone; others are. There is absolutely no reason why we should not co-operate very closely with those who are in or out of the zone in what is in effect a multi-speed Europe, as long as we recognise that we work together in a co-operative pattern within the Union to address constructively the very dangerous challenges from the outside world.

Baroness Royall of Blaisdon: My Lords, would the Minister agree that there are dangers with a two-speed Europe, and that if a inner eurozone were to be

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created, it would be in the interests of the United Kingdom to be present at all discussions that took place within that eurozone, even if we were not at the table?

Lord Howell of Guildford: Again, I do not necessarily believe that it would be a sort of inner and outer pattern or that the inner zone would necessarily move at a faster speed than the outer. After all, as someone pointed out to me, if you want to get around Paris you go on the Périphérique and not through the middle. So it may not be quite like that, but obviously we want to be closely involved in the evolution of the European Union and its refashioning, to quote my right honourable friend the Prime Minister, and we certainly will be. One of the things we should discuss together, not just bilaterally between London and Brussels but in the interests of the whole Union, is a more balanced approach as to the powers and competences between the nation states and essential EU authorities. That, I gather, is also the policy of the Labour Party.

NHS: Waiting Times

Question

2.59 pm

Asked By Lord Beecham

To ask Her Majesty's Government how many patients currently waiting more than 18 weeks for treatment will benefit from the recent directive on waiting times; and what are the most common conditions from which they suffer.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, we have introduced a strong performance measure in 2012-13 for patients still waiting to start treatment more than 18 weeks after referral. This, and the requirement to treat patients in order of clinical priority, will ensure that the NHS focuses on minimising waiting times for all patients. At the end of September 2011, 242,540 patients were waiting longer than 18 weeks to start treatment. The largest numbers of patients were waiting in trauma and orthopaedics specialties.

Lord Beecham: My Lords, does not this U-turn underline the folly of abandoning targets in the first place? Will the Minister say how, under the provisions of the Health and Social Care Bill, the Secretary of State will be able to intervene in similar circumstances should they arise in future?

Earl Howe: My Lords, this is not a U-turn. The Government have always been clear that the standards laid down in the NHS constitution should be adhered to. As the noble Lord will know, that includes the expectation that patients should not wait for longer than 18 weeks. It is also a condition built into the NHS standard contract. We have been absolutely consistent all the way along. Those things will continue to have to be measured after the Government's modernisation proposals are put in place.

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Baroness Finlay of Llandaff: What percentage of patients in hospital are currently awaiting discharge because of delays in establishing a suitable care and follow-up package for them at home, thereby preventing the admission of others for investigation and treatment?

Earl Howe: My Lords, in the first quarter of the current financial year, 0.4 per cent of occupied bed days were taken by patients who were delayed while waiting for a care package. That picture has deteriorated over the past year but that deterioration masks some variations. Some hospitals have improved dramatically and others have started reporting for the first time. It is not possible to compare this year's figures with the previous year, although these are very important figures which we do monitor.

Lord Naseby: My Lords-

Baroness Jolly: My Lords-

Lord Naseby: My Lords, is it not strange that the figures show that certain hospitals consistently get nowhere near meeting the 18-week target? What action are the Government going to take to help those hospitals ensure that they perform like the average?

Earl Howe: Yes, my Lords, my noble friend is right. Five hospitals account for a very significant proportion of the number of patients waiting for longer than 18 weeks. We are working with those hospitals to look at ways in which that performance can be improved. We know that it can be because many hospitals are more than achieving the desired standard.

Lord Warner: My Lords-

Baroness Jolly: My Lords-

Lord Clark of Windermere: My Lords-

The Chancellor of the Duchy of Lancaster (Lord Strathclyde): Perhaps we may hear from one noble Lord from the other side at a time, and then from my noble friend.

Lord Warner: I am grateful to the noble Lord. Blessed is the sinner who repents. However, will the Minister tell us whether in the light of this repentance, he will, following my noble friend Lord Beecham's Question, look sympathetically at amendments to the Health and Social Care Bill which will give patients the kind of safeguards that targets did under the previous Government?

Earl Howe: My Lords, we believe that the safeguards are already in place, but the figure I cited in my original Answer is very similar to the figure we have seen over the past two and a half years. Little progress has been made over that time. We do not think that that is satisfactory, so we are broadening the operational

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standard to ensure that more patients are treated in a timely way. I am sure all noble Lords would wish to see that.

Baroness Jolly: My Lords, approaching 250,000 patients have been waiting for more than 18 weeks and I expect that they would like to know why, as would the House. Can the Minister give us any indication, apart from the five hospitals mentioned earlier, of whether there is a regional pattern to this-while we still have regions-or of whether it is the result of financial pressures, clinical management issues or maybe a combination of all three?

Earl Howe: It does seem to be a combination of all three, although it is clear that in certain areas there is a shortage of the necessary specialist consultants. Sir Bruce Keogh, the NHS medical director, is addressing this urgently with the British Orthopaedic Association in particular. That is expected to result in a solutions paper being put to the NHS Operations Executive in the new year.

Baroness Thornton: My Lords, this weekend the Royal College of Nursing reported that around 50,000 nursing posts are either in jeopardy or lost completely due to the ill conceived implementation of the economies being driven through the NHS. Does the noble Earl accept this figure and what effect does he think that figure might have on waiting times and waiting lists? Is it not time for the Government to accept that cuts to front-line staff are going to have an effect on patient care?

Earl Howe: My Lords, in that press release, which I think was from the Royal College of Nursing, there was a blurring of the distinction between the number of nursing posts which have been lost and the number which might, if certain things happen in the future, be lost. We recognise that in some cases local organisations will have to make difficult choices about staffing changes in the coming years. In making any changes, we have been clear that we expect them to ensure that the quality and safety of care is maintained or improved. That may involve changing the skill mix of the workforce in a particular hospital but, if that happens, it has to be safety and quality assured so that there is no adverse effect on patients.

Health and Social Care Bill

Main Bill page
19th Report from the Delegated Powers Committee
18th Report from the Constitution Committee

Committee (7th Day)

Relevant documents: 19th report from the Delegated Powers Committee, 18th report from the Constitution Committee.

3.07 pm

Clause 20 : The NHS Commissioning Board: further provision

Amendment 96

Moved by Lord Warner

96: Clause 20, page 15, line 37, leave out first "the" and insert "a maximum of five obligatory and five desirable"

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Lord Warner: My Lords, we have come to Clause 20, which covers the Secretary of State's mandate to the National Commissioning Board and the wide range of duties placed on the board. This gives us an opportunity to probe the Government's intention vis-à-vis this board and their perspective on the relationship between the board and the Secretary of State. I find myself taking something of an ambivalent attitude to the board which, if I may say to the Minister, was a major reason for my being very unattracted to the idea of chairing it when I was approached. At the heart of that ambivalence is a wish to stop elected Ministers and their henchpersons-if I may use that term-at Richmond House interfering endlessly in the day-to-day management of the NHS. But against that there is also a serious disbelief that when anything goes significantly wrong in some part of the NHS, the Secretary of State will be able to say, "Nothing to do with me, guv. Talk to Malcolm Grant and David Nicholson". I certainly do not see the Health Secretary of the day having the kind of detached relationship with the national Commissioning Board chair that Professor Malcolm Grant seems to envisage in his public utterances. Those remarks suggest that the new national Commissioning Board chair sees himself being left in political peace for two to three years once the mandate has been agreed with the Health Secretary. My experience both as a Minister and as a senior civil servant is that he is deluding himself if he thinks that that is going to happen, but I shall be happy to hear from the Minister what his views are on the relationship between the board and the Secretary of State.

The first of the amendments in this group, Amendment 96, suggests the placing of a numerical limit on the number of items in the annual mandate provided for in proposed new Section 13A(1). I was prompted to do this by some rumours emanating from the Whitehall gossip mill suggesting that Andrew Lansley saw the mandate as a booklet of indeterminate size along the lines of the operating framework, while David Nicholson saw it as a couple of sides of A4. We want to probe further what the Minister sees as the Government's approach to the mandate. These rumours took me back to three happy years in the early 1990s when I chaired a health authority, at a time when it had 50-odd priorities that had to be accounted for annually at a session with the RHA chairman. In practice, the NHS had no priorities then because the shopping list was too long. However, everybody kidded themselves and felt rather good about life because they felt that they were being held to account for the delivery of a substantial number of worthy and desirable objectives.

Amendment 96 tries to place a limit-admittedly somewhat arbitrarily-on the scale of the marching orders that the Secretary of State can give each year to the national Commissioning Board. At the same time it tries to distinguish between what one might call must-do's and "attempts to seriously do"-type items. It proposes five of each. As someone who has managed big public sector organisations, I have never attempted to give my managers more than five or six must-do's in any one year, together with a few development items. We need to understand from the Minister the scale of the remit that will feature in this mandate and that will be given to the board. That is the setting in which

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I think we want to discuss this and I would certainly be grateful if the Minister could enlighten us on the scale of that mandate in terms of the number of priority areas that it is likely to contain. How will the mandate differ from the annual operating framework that has been used to guide the NHS in its priorities over recent years and which has itself got bigger and bigger as time has passed? How will the mandate be related to the resources given to the board and, indeed, the inflation factor allowed for in the resource assumptions underpinning that mandate? The latter is critical in any mandating process because healthcare inflation is typically greater than RPI or CPI, for a variety of reasons which we need not go into today. Keeping healthcare inflation nearer to CPI would be one way of driving NHS productivity. The mandate's financial underpinning is a critical factor.

Amendment 98 is based on the idea of the Permanent Secretary's letter to a Minister when, having tried everything else, a top civil servant is instructed for political reasons to do something which is, in his or her eyes, essentially against the public interest. We need some transparency in the relationship of the Health Secretary to the board when totally impracticable or unaffordable instructions are included in the mandate by an elected Minister. Amendment 98 tries to give the board a right to raise this formally with the Secretary of State when it thinks that what is being asked of it is totally impracticable, particularly in terms of the resources available.

Amendment 100 extends this transparency to any other persons consulted by the Secretary of State on the objectives and requirements in the mandate. I look forward to hearing the Minister's account of how these new mechanisms will work and how they will be made more transparent than the Bill provides for at present. I beg to move.

3.15 pm

Baroness Murphy: My Lords, I have added my name to the amendments, many of which are from the noble Lord, Lord Patel, because I, too, am worried that the Secretary of State may feel obliged to include in the mandate every last possible objective and priority that the department can think of. Let us remember that it will probably be the department's civil servants that write the mandate.

For decades, the NHS has prescribed objective-setting as a sort of all-purpose remedy for NHS motivation. Rather than dispensing objectives as a benign, over-the-counter treatment for the NHS Commissioning Board, the Secretary of State needs to conceptualise his objectives in the mandate as prescription-strength medication that requires careful dosing, consideration of harmful side-effects and close supervision.

Given the impact that objective-setting has on activity in management, I should like to ask for a more self-critical and self-denying approach to the creation of the mandate than has hitherto been the case in NHS priority-setting-hence the rather arbitrary notion that we might have five "musts" and five "maybes". I would like the Secretary of State to restrict his mandate to one side of A4, but I can see a departmental machine creating a mandate which reflects all the recent ministerial enthusiasms-for example, a waiting list here and a

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choice or two there-and which during its creation becomes a sizeable novel of the unattainable but desirable, or, alternatively, the attainable but unimportant, which were the characteristics of NHS priority lists in the past.

The mandate should answer the question: where do we want the NHS to go in the next five years, and specifically in the next year, and what resources are we going to dedicate to get there? We should then translate that into something specific that is measurable, achievable and realistic, with time for things that one wants to see for all objectives. If one has more than just a handful of objectives, I suspect that only two or three will ever get done. I therefore wonder how we can be reassured that the Secretary of State will produce a working document of realistic goals.

Lord Hunt of Kings Heath: My Lords, this is one of the most important groups of amendments that we are going to discuss, because, in a sense, it sets the whole relationship between the Secretary of State and the NHS Commissioning Board.

I have considerable sympathy with my noble friend Lord Warner's Amendment 96, which seeks to avoid the Secretary of State essentially putting in a huge shopping list of demands by limiting the mandate to a maximum of five obligatory and five desirable functions.

I come back to the recent interventions by the Government in the affairs of the National Health Service. The most recent have been around waiting times, both in terms of what happens to patients who have passed the 18-week target and of the activities of some primary care trusts, which, in order to contain their expenditure, have set arbitrary waits for patients even though they are ultimately treated within the 18-week limit. I have said to the Minister that I have no complaint about the intervention of Secretary of State, which I thought was quite proper, but it is very difficult to see how this will happen under the new system. We have yet to receive a satisfactory answer to it. What in the new system will suddenly obviate the need for the Secretary of State to make such interventions?

The question then comes to the mandate. Is it, as my noble friend Lord Warner hopes, a high-level document which will focus on a very limited number of objectives, or will it be a shopping list? The noble Baroness, Lady Murphy, expressed it very well as in a sense legitimising "recent ministerial enthusiasms". We were rather given the lie to this when we debated this matter last week, because the Minister suggested that if there was an issue such as primary care trusts lengthening waiting in order to meet the budget, the mandate could be used to prevent it. Indeed, that is the risk-that the Secretary of State will, quite properly, come under pressure to intervene in the health service. The Bill weakens the legal powers of the Secretary of State to do so. The risk is clearly that the mandate will be used instead, and it would be used retrospectively if it does not satisfy the intervention power. I believe that there is great reservation among noble Lords as to whether the intervention power is sufficient, because there has basically to be a failure by the NHS Commissioning Board to carry out the objective. If it is not sufficient for an intervention to take place during the year, my goodness me the shopping list will

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grow when the new mandate is written. So, there are some very important issues on which we have yet to receive any answer from the Minister.

There are, however, a number of other important amendments in this group. Perhaps I may ask the Minister to clarify three points. The first point is how long the mandate will last. My assumption, from what Ministers have said and what is in the Bill, is that it will last for a year. The Minister will be aware that the chairman of the NHS Commissioning Board expressed a wish to the Health Select Committee, which was vetting his appointment, that the mandate should last for three years. I wonder if the Minister could clear up that matter for your Lordships.

Will the Minister also clarify the intention behind the provision in proposed new Section 223D(7)(b), on page 27, which allows changes to total capital and revenue resource use after parliamentary general election takes place? I take it that this is simply to allow for a change of Government but I would be grateful if he could spell that out.

However, my substantive amendment, Amendment 100A, is concerned with parliamentary scrutiny. In Clause 20, proposed new Section 13A states:

"Before the start of each financial year, the Secretary of State must publish and lay before Parliament a document to be known as 'the mandate'".

Surely Parliament is entitled to a little more involvement than merely receiving the mandate as a fait accompli. My noble friend Lord Warner has already pushed the Government in their amendment to give Parliament information about any reservations the board may have expressed about meeting the mandate. I would certainly support that in the interests of transparency. There is also, in Amendment 100, reference to the requirement on the Secretary of State to consult the board, HealthWatch England and other persons, with the results of any consultation on the mandate to be published. That too seems reasonable.

However, I wonder if we ought not to go further in terms of parliamentary scrutiny. If we take Ministers at face value-and the Secretary of State has expressed a wish to step back from day-to-day involvement in the National Health Service-it is clear that the mandate assumes special importance. Why is Parliament not being given a proper opportunity to scrutinise the mandate before the Secretary of State finally sets it for the NHS Commissioning Board? If the Secretary of State is really going to tell Members of Parliament in particular that he is not going to intervene in a particular question because he considers that now to be the responsibility of the NHS Commissioning Board, in accordance with the mandate that the Secretary of State has set, then I think that Parliament should be entitled to some involvement in scrutiny of that mandate. My Amendment 100A suggests how that might be done. It is built on the system of scrutiny for national policy statements.

The House will be aware that the Planning Act 2008 introduced a new planning system for applications to build nationally significant infrastructure projects. They cover applications for major energy generation, railways, ports, roads, airports, water and hazardous waste infrastructure. Under this system, national policy on

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national infrastructure is set out in a series of national policy statements. Under Section 92 of the Planning Act 2008, each proposal for a national policy statement must be laid before Parliament. In so doing, the Secretary of State specifies a relevant period for parliamentary scrutiny.

If during that scrutiny period either House passes a resolution with regard to the proposal, or if a committee of either House makes recommendations regarding the proposal, the Secretary of State must lay before Parliament a Statement setting out his response to the resolution or recommendations. Following completion of parliamentary scrutiny, the Secretary of State may formally designate the proposal as a national policy statement. The final national policy statement is also laid before Parliament.

In the House of Lords, national policy statements are normally debated in Grand Committee, but that does not restrict the freedom of committees of the House or individual Members to make use of the statutory procedures. In the event of a Motion for resolution being tabled, the usual channels have undertaken to provide time for a debate in the Chamber within the scrutiny period.

When I was energy Minister, I had to bring through four energy policy statements. We had three four-hour debates in Grand Committee. They were very thorough. The Government took note of what took place in those debates. In the end, it is up to the Government to make the statement because it is a matter for the Executive. I do not challenge that the mandate, which I regard as important as a national policy statement, is ultimately for Ministers to make. It is rightfully an Executive responsibility. However, the process that I am suggesting in my Amendment 100A would allow Parliament to have much more involvement in the scrutiny. It would allow Ministers to take account of that and then make their minds up in relation to the mandate.

If the Government are determined to hand over such responsibility to a quango-and I remind the House that in this Bill the National Health Service Commissioning Board is given concurrent powers with the Secretary of State in relation to the crucial responsibility in Clause 1-there has to be a great parliamentary scrutiny of that mandate.

Lord Patel: My Lords, I added my name to the amendments tabled by the noble Lord, Lord Warner. They were prompted by the lack of clarity in the nature of the mandate that the Secretary of State will issue to the Commissioning Board. There is also a lack of clarity in how he will consult the public, although the provision does say that the Secretary of State will consult HealthWatch England prior to issuing a mandate. Who else will be able to scrutinise the mandate?

On the basis that the Secretary of State will use the mandate to performance-manage the Commissioning Board, what will be the nature of the mandate that will allow him to do that? Will it have measurable outcomes against which the Secretary of State can performance-manage the Commissioning Board? What happens if the Commissioning Board does not agree

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with the mandate? How is that dispute settled? Will the financial aspects be a major part of it or will it be better outcomes for patients?

3.30 pm

Lord Owen: My Lords, I support the amendment spoken to very ably by the noble Lord, Lord Hunt. The case is utterly convincing in every respect. The use of the word "mandate" is strange in parliamentary terms. It presumably owes something to the idea of legitimacy. We talk of a mandate coming from the electorate. If the Bill is to use this term, I imagine that it is in the belief that it is a mandate from the Government. It has always been recognised that if there is a mandate from the electorate going to the Government then that mandate from the Government must be checked by Parliament. It would be extraordinary if there was any period when the mandate could not be discussed. It has been widely said that the mandate will last for a year, although that has not been officially confirmed. It is essential that we hear from the Minister how long the mandate will run. But with a period of even six months it would be irresponsible for Parliament not to comment on it and have the facility to debate it.

Here we come to the nub of this whole question. We have already been there on the question of the Secretary of State's powers. Are we really considering putting this vast block of government expenditure out into the void with no requirement or capacity for the Government to be held to account by Parliament? This is an absolutely essential amendment. Were it to be rejected, we would have a very clear idea of what the Government's views are about the role of the Secretary of State. I have said before that I call this Bill the Abdication of the Secretary of State Bill.

We can argue about this but the Government have a majority and are going to push this legislation through. For all the balmy words and the assurances we hear, this legislation will, I am sure, near the end of the day, emerge very much as it was originally presented. There is a logic to it and there is no doubt that the Secretary of State has not come to his position lightly or without thought. He was in opposition for many years and is very knowledgeable about the health service. He has a philosophical position. He wishes to take the NHS out of politics-the old slogan of the BMA for years and years. However, that position was rejected by every single Conservative Government since the Act was first introduced because they believed it was impossible to take such a large sum of money out of the realm of politics. It seems amazing that we have not yet had a single, serious argument as to why this strange new philosophy should be introduced. Where there is substantial government expenditure, which comes from taxpayers and is not owned by the Government, there should be accountability throughout the process.

I have also raised another, and, I feel, much deeper, issue. The British people, over all these years, have accepted that our spending on health-which is actually less than that of many other comparable nations-is rationed. It is no use us ducking the fact that we are making massive changes to an institution that has extraordinary levels of public support and has had such support ever since it was introduced. The fundamental reason-I can find no other justification-is

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that there is a sense among the British people that they have had their say in this rationing process. They have had a mechanism for feeling that the choices and distribution of finances have been debated and that therefore it is a choice they can support. If we tamper with that process, we tamper with a very serious element-this acceptance of the rationing process and this support for the NHS.

Some measure of parliamentary accountability has to be written into the Bill at every juncture where it makes sense. This will come up in the debates on the Secretary of State's powers, which are still to come, but many of us have expressed the view-I have certainly written about it-that the health service is overcentralised, that a degree of decentralisation in decision-making is necessary, and that there needs to be less micromanagement. These issues are broadly accepted. But we come now to this mandate. I would have chosen a different word and a different mechanism. However, if that is the only mechanism we can amend, how can we reject the idea of some measure of parliamentary accountability, of writing in some other priorities and of questioning the decisions of the Minister?

Amendment 98, tabled by the noble Lord, Lord Warner, is very necessary. He and I may remember a day when the Secretary of State at the time was intent on the policy of pay beds. I was fully associated with the policy, even though I am not so sure it was the wisest policy in retrospect. It was very interesting that the then Permanent Secretary exercised his responsibility and came in and argued against the proposition. We claimed we had a mandate from the electorate as it had been in the Labour Party manifesto in the 1974 election. He nevertheless produced a rational argument why that should not be done at that particular time, following the reorganisation of the National Health Service. The noble Lord will remember this very well because he was on a committee that was looking at this very issue. The Permanent Secretary said that it was the wrong timing quite apart from the issue of principle as to whether the measure constituted the right politics. I should say in fairness to the then Secretary of State, Barbara Castle, that she gave him a proper hearing, questioned him and explained the situation. He said at the end of the day, "If you decide to go ahead with it, that is your choice and we will loyally support it". I think that few people who dealt with those officials had any belief that they had anything other than 100 per cent commitment to the measure. They had fulfilled their constitutional responsibilities and there would have been much merit in the issue being forced out and discussed. People should have known that opinion. In our present system these opinions do not often come forward.

At least under the system in place at that time there was constant scrutiny of the Secretary of State through Parliament. In this situation where the Secretary of State, having issued his mandate, will pull out of any form of day-to-day accountability in Parliament, scrutiny becomes ever more necessary. The transparency has to be on both sides. The officials-in this case, the Commissioning Board-have a perfectly reasonable right to make clear to Secretaries of State that they think the mandate that has been pushed on to them is not deliverable. That should then be made known to

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the public. Similarly, the commission and the Secretary of State should know what Parliament's view of the issue is. I await the Minister's response, which will flavour a lot of one's attitude to other important debates about the powers of the Secretary of State which we have still to resolve. The Government should indicate whether this is a totally "geek" Bill with the strange philosophical position that Parliament must never put its dirty fingers on any aspect of the National Health Service. Are we to have a grown-up, adult debate about the degree of decentralisation and the degree of management that will be devolved, or are we going to have a clear-cut line whereby Parliament in effect has no responsibilities at all?

Lord Harris of Haringey: My Lords, I confess that I am something of a cynic about some of the proposals in the Bill. I am a great believer in the principle of localism, the local determination of services and local decision-making. Therefore, in principle I would applaud any Government-even this Government-who desire to devolve responsibility for various things to local authorities and, in this case, local commissioning groups.

However, my cynicism kicks in because what I suspect is happening here-I suspect that it will happen in other service areas-is that Ministers are cynically saying, "We are leaving these responsibilities to you, the local bodies concerned. We are very happy for you to make all these decisions. The snag is that we will not provide you with the resources to meet all the expectations that the public, who rely on those services, might legitimately have hoped to be provided. However, we are not taking these decisions. We will not be involved. It is a matter for local determination". To be honest, I think that is what underpins much of the localism, devolution or autonomy agenda that we are seeing.

However, the experience of all previous experiments of localism is that while Ministers say, "Yes, this is a wonderful idea. We want to do it", pressure starts to be applied to particular things. They want to have a mechanism whereby they can say, "It is, of course, your decision. However, we want you to make sure that these things happen". Gradually, the list of the things that must happen gets longer and longer and the list of areas of discretion gets shorter and shorter.

When I saw the proposal for a mandate to be in the Bill, I thought that that was the mechanism whereby on the one hand Ministers will proclaim that they have no involvement in these decisions and say that they are all local decisions, but on the other hand this will enable them to ensure that certain things still happen because they are being subjected, as elected politicians, to pressure to make sure that they happen. That is why the amendment of my noble friend Lord Warner, which would restrict the extent to which this could be done, is very important. If we do not have an amendment of that sort in the Bill, I can tell you now what will happen; every single pressure group, voluntary organisation and lobby will say, "We want included in the mandate", which is being issued to the national Commissioning Board, "the following service. We will want to see it there."

For any sensible Minister the simple answer to all this is to write an extremely long mandate that covers all those points rather than sticks to them. If they were

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obliged to be limited to just five or six or another small number of issues, that would be extremely salutary. It would stop the creep that would happen. However, I suspect that the Government are not going to say suddenly, "My goodness, the noble Lord, Lord Warner, has come up with an excellent idea. Why didn't we think of that? We must accept it, of course", because unfortunately that is not always the way in which government Ministers react. They will stick to the letter of the Bill without those specifications. They will say, "Well, why five? Why not 10? Why not 12? What about three?". All these different things will be argued as an excuse for not doing it. You will then get the drift and the pressure to say that more and more things must be added.

Amendment 100A is so important because there must be parliamentary scrutiny of what is happening, because this will be the mechanism that drives decision-making in the NHS. It is not going to be a pure version of devolution, localism and autonomy; this is going to be done through the mandate. The mandate is then going to be the most important document that drives the NHS at any one moment. That is why parliamentary scrutiny is essential. Parliament must have the opportunity not just to see it and to know what is being done in the name of the public but to comment, amend, or put forward amendments and have the Government respond to them.

I therefore hope that when the Minister responds he will accept not only the principle of my noble friend Lord Warner's amendment but the principle of detailed parliamentary involvement in this process in the amendment of my noble friend Lord Hunt of Kings Heath.

Baroness Williams of Crosby: My Lords, I will comment further on Amendment 98. One of the great qualities of the amendment is that it would oblige all of us to confront directly the huge strain between the rising demand-4 per cent a year over recent years-for National Health Service services, and the limitations on resources to which the noble Lord, Lord Harris of Haringey, has eloquently referred. It is vital that if we are going to carry the public with us in making the changes, which will be required regardless of whether the NHS survives or not, to service configurations, to the way in which ancillary professions are used, and to the whole range of community activity and help, we have to get the whole of the public and Parliament to understand how acute the pressures on resources are and how very necessary the need for change is.

It is therefore vital that we take due responsibility as Parliament and as a whole nation for the changes that will be required. All of us in this House recognise that service configuration is going to be the key way in which we deliver quality services with straitened resources. However, we should not pretend to ourselves that service configuration will be anything but extremely difficult. It will be politically difficult in particular, for the reasons which the noble Lord, Lord Harris of Haringey, pointed out. Any time you configure a service in a way that, for example, results in the closure of hospitals or other medical centres, you will encounter huge public resistance, because the public like, as is

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very much evident, exactly what they have. It is very sad that we have to explain, regardless of how we vote on this amendment or any other amendment, that there is this straitened position between resources and demand.

That is why Parliament, too, must accept its responsibility and not press for changes that simply cannot be afforded. Unless we have an amendment like Amendment 98, which is fundamentally part of the whole parliamentary structure within which the NHS or any other form of health service has to operate, we will not start on the crucial business of persuading and training the public as well as the medical profession and ourselves about the absolute necessity of fundamental change, regardless of the actual management structure that we happen to have at the time. I personally believe the NHS has a remarkable management structure. There are others who believe that it does not, but the one thing one can say is that the crucial issue is not so much management structure as how one actually handles the massive process of change that now confronts us.

3.45 pm

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, I hope that I can demonstrate to the Committee that the portrayal of what the Government intend through these provisions is a false one. We wish to create a transparent and accountable system in which every organisation understands its duties and responsibilities. Clause 20 sets out further provisions for the NHS Commissioning Board. It requires the Secretary of State to publish a mandate to the board setting out objectives and requirements as well as the board's resource limits. The mandate is one of the key levers that Ministers will have in order to set a national health policy and influence the way in which taxpayers' money is spent on delivering NHS services. It lies at the heart of the Secretary of State's continuing accountability for the health service.

In a moment, I shall cover the provisions concerning transparency prior to the publication of the mandate, but once the mandate has been published, the Bill requires the board to publish its business plan, setting out how it will deliver it. The Bill also requires it to report on what it has previously achieved in its annual report laid before Parliament. The Secretary of State must then publish an assessment of the board's performance. Taken together, that will provide what we believe is an unprecedented degree of transparency about what the NHS is asked to achieve and what is delivered.

The noble Lord, Lord Warner, suggested that, having issued the mandate, the Secretary of State would detach himself from the health service from that point on. That has never been our vision and it will not happen. I say to the noble Lord, Lord Hunt, in regard to his example of waiting times, that he will know that the board and all the commissioners will have to have regard to the NHS constitution, and within the NHS constitution is a standard which says that patients can expect to wait no longer than 18 weeks. That duty is in the Bill and we do not intend to change it. It is also open to the Secretary of State to stipulate conditions

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to be included in the NHS standard contract. Again, the noble Lord will know that within the NHS standard contract there is a stipulation about waiting times.

The Bill requires the Secretary of State to keep the board's performance against the mandate under review throughout the year, over and above his general duty to review the performance of all national bodies. I refer the noble Lord, Lord Owen, to Clause 49 of the Bill which sets out that duty.

Amendments 96 and 153A, tabled respectively by the noble Lords, Lord Warner and Lord Hunt, would limit the number of objectives in the mandate and remove the ability to amend it in-year following an election. I do not yet know how many objectives the mandate will contain. That will emerge from the process of engagement and public consultation that we will undertake, but I am confident that, given that the NHS Commissioning Board will receive around £80 billion of funding, there will be many more than 10. Setting an arbitrary limit, as the amendment seeks to do, would undermine Ministers' legitimate ability to set strategic policy for the NHS.

As a result, although I support the broad intention of the noble Lords, I think a better way of achieving the desired outcome is not to put crude limits on Ministers' powers, but to ensure that they are used proportionately. That is what the autonomy duty in Clause 4 does. I hope that helps to explain to the noble Lords why we think that duty is so important.

The noble Lord asked whether the mandate would contain desirable as well as obligatory objectives for the Commissioning Board. That is not our intention. The Bill will require the board to seek to achieve all the objectives in the mandate and the board will then be legally required to comply with all the requirements set out in the mandate.

The noble Lord, Lord Hunt, asked me about the period-

Lord Warner: I would like to pursue the last point the Minister made. Is he saying that, after a lot of consultation, the Secretary of State may say, "I have 35 objectives for you, laid out in the mandate, and I claim that the justification for that is the consultation process that we have had. You, the national Commissioning Board, better get on with it, and we will look at what you have done at the end of 12 months to see whether you have delivered those 35 objectives"? Can the Minister give us some idea what failure would look like? Would it mean failure on 10 objectives, or five, or 15? Where does the point come when the chairman and the chief executive get fired because they have not delivered the objectives in the mandate?

Earl Howe: The noble Lord is taking us into a hypothetical realm. I understand why he is asking those questions, and I think the answer would depend on the degree and scale of the failure. I have just said that the Bill requires the board to seek to achieve all the objectives in the mandate. It would be up to the Secretary of State to judge whether it had used its best endeavours to do that. The performance of the board will be a matter of public record; it will be up to Parliament to take a view on that, as well.

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Lord Davies of Stamford: I am most grateful to the Minister for giving way. Could, or would, the mandate include any way to prioritise between the potentially 35 different tasks that are being imposed on the board?

Earl Howe: It could do. However, that is to be determined. I would welcome the views of the noble Lord on that, if he has particular examples in mind.

This brings us to the question the noble Lord, Lord Hunt, asked about the period which the mandate will cover. It will be a multi-year document, updated annually, which is intended to provide a stable policy context for the board. There may be circumstances which call for the mandate to be updated in-year, including after a general election, to ensure that an incoming Government could start to implement their manifesto commitments for the NHS in-year. Any revisions to the mandate will be open and transparent. If the mandate is revised, it must be published and laid before Parliament with an explanation of the changes.

I will now comment on Amendments 98 and 100, tabled by the noble Lord, Lord Warner, and Amendment 100A, tabled by the noble Lord, Lord Hunt. These rightly highlight the importance of transparency and parliamentary scrutiny of the mandate. I completely sign up to transparency as a principle. In the first place, there will be a public consultation. Alongside that, we will engage with stakeholders, including the board, to ensure that we set ambitious but achievable objectives. It is essential that the Government hold the board to account for objectives that are achievable. It is not in anybody's interests to set the board up to fail. At the same time, where there is scope for improvement in the health service within the resources available, the mandate should and will ask the board to drive such improvements.

Ministers have a legitimate right to be ambitious on behalf of citizens and taxpayers, but we know that getting the balance right and setting objectives that are affordable and ambitious will not be straightforward. Much of the answer lies in transparency. There will be open public consultation on the Government's objectives for the NHS. I can assure noble Lords that the process of developing the mandate will be open and consultative, including a formal 12-week public consultation. We intend to publish a consultation response as well as a summary of the responses we receive.

I point out that the Bill places a duty on the Secretary of State to consult the board and HealthWatch England before specifying the objectives and requirements in the mandate. We should be clear about how that changes the current arrangements. At present, decisions about the Secretary of State's priorities for the NHS can be decided without reference to, or consultation with, anyone, as we saw under previous Governments. Top-down targets can be set without consultation. The priorities for the NHS are issued around this time every year through an operating framework without any need for consultation. Under the Bill, for the first time parliamentarians and the public will have the opportunity to consider and challenge the Government's objectives for the NHS every year. No previous Government have ever allowed this. It will highlight

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and reinforce, year by year, Ministers' overarching responsibility for a comprehensive National Health Service free at the point of need.

The consultation will provide a period in which Parliament will be able to scrutinise the Government's proposals-as will the Health Select Committee if it chooses. It is appropriate that this consultation should take place before the mandate is published. We must provide clarity of purpose for the NHS. A period of additional parliamentary scrutiny after the mandate is published, which is what the amendment proposes, would be disproportionate and very disruptive. It would reduce the time the NHS has for planning and would create uncertainty in the service.

There will of course be formal parliamentary control over any legal requirements set for the NHS through the standing rules and any other regulations. The Bill not only gives Parliament an unprecedented role in setting out the roles and responsibilities in the NHS but increases parliamentary scrutiny by requiring detailed parameters and requirements to be set in regulations rather than in ministerial directions that have no scrutiny at all. I hope that noble Lords will give the Government credit for that package of proposals.

In addition, we have accepted the recommendation of the Delegated Powers and Regulatory Reform Committee that the requirements in the mandate should have the force of legislation and should be in an instrument subject to the negative procedure.

Lord Owen: It sounds very reasonable, but effectively the pre-consultation period will involve the board, HealthWatch England and such other persons as the Secretary of State allows. Parliament will not always be fobbed off with the answer that the Minister is still considering the issue. That is perfectly reasonable; we all know that a normal consultation period is required by all ministries, and certainly the Department of Health has observed this over many decades. It is when the Minister makes up his mind that Parliament will know what the policy is-and if it is in legislation it will be at that stage that there will be an intervention from Parliament with the right to challenge it. Therefore, it is perfectly reasonable to ask Parliament to come in after the consultation period because then it will know what the Secretary of State is proposing.

Earl Howe: Of course, Parliament is the sovereign body and can do whatever it chooses. Nothing will prevent it commenting on the mandate once it has been published. No doubt the Health Select Committee will wish to do this. My point is that to expect the process to feed into a regurgitation or reformulation of the mandate would be unfair on the NHS. The opportunity for Parliament to have its say should surely be during the normal consultation period. Parliament will be able to see the extent to which the Secretary of State has responded to whatever comments it has made.

Lord Hunt of Kings Heath: I take up the point that any debate in Parliament should be after consultation has taken place so that Parliament will know what the Secretary of State has decided. The Minister said that

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this would be debated by a sovereign Parliament. However, he will know that translating that into real time for debates in which noble Lords can question Ministers is problematic. The beauty of the Planning Act 2008 was that it laid down a requirement that was then turned into procedure. Perhaps the Minister will reflect on this. As he rightly said, this mandate is a very important indication to the health service of the Secretary of State's wishes. If the department gave some further thought to this matter, it might come to the conclusion that it would be right to allow parliamentarians to have a go at the mandate-to question Ministers-before it is finally signed off.

4 pm

Earl Howe: My Lords, I was just about to comment on the recommendation of the Delegated Powers and Regulatory Reform Committee that the requirements in the mandate should have the force of legislation, in an instrument subject to the negative procedure. The board will have to comply with the requirements in order to support delivery of the objectives in the mandate that it must seek to achieve. Parliament will therefore be able to scrutinise the requirements after the mandate is published. We will bring forward a government amendment at Report stage to achieve that recommendation of your Lordships' committee.

That is not the same as opening up the actual objectives in the mandate-that is to say, the direction and the strategy that the Government of the day want to set for the NHS-and rightly so. If that were to happen, it would lead to unwelcome delay and uncertainty for the health service. The Delegated Powers Committee, which has great expertise in this area, did not suggest that any further parliamentary scrutiny of the mandate was necessary. I can reassure the Committee that if Parliament were to make a recommendation concerning the mandate after it is laid before Parliament, the Secretary of State would undoubtedly have to respond, just as Ministers do now as a matter of course.

Lord Warner: I have been cogitating what the Minister has been saying, in his normal, plausible way, about the consultation with everybody before the mandate is agreed by the Secretary of State. The trouble that I have with that, worthy though it is, is that it does not really deal with the point in my Amendment 98, and in some ways it makes the situation worse. My amendment is all about how the national Commissioning Board answers back and tells Parliament if it thinks that the final mandate is undeliverable. That is the purpose. If you have extensive public consultation, the point that my noble friend Lord Harris made earlier comes into play. I am sorry to have got a bit fixated about the figure of 35, but you end up with 35 propositions in the mandate, and the money available to the Secretary of State at that point is still the same as when he went out to public consultation. We run an even greater risk of having a very overloaded mandate, with lots of items in it which come out of the public consultation. The money has not changed. The board is expected to deliver a larger number of things with the same amount of money. That is why my Amendment 98 becomes even more important if the Minister is going down the path that he says that the Government are going down.

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Earl Howe: As I said, there will be full public consultation on the mandate. It would of course be possible for the Health Select Committee or indeed other parliamentarians to scrutinise and challenge the mandate at that point. If changes to the mandate were made in-year as a result of that process-that is not inconceivable-then a revised mandate would be published. It would be laid before Parliament with an explanation. After the mandate comes into force in April 2013, Parliament will have all the usual opportunities to ask questions about the performance of the board against the mandate. The board in addition will include in its annual report an assessment of performance against the mandate, and that will be published and laid before Parliament.

The noble Lord, Lord Hunt, asked me how we will know what the board said when it is consulted about the mandate. As I am sure he knows, the Government have a code of practice on consultation that we would follow. That code sets out the expectation for the Government to respond to the consultation and in doing so to provide a summary of the views expressed to each question as well as of what decisions have been taken in the light of them.

The noble Lord, Lord Patel, asked a question that the noble Lord, Lord Warner, also asked me about what would happen if the board disagrees with the mandate. The mandate sets out the objectives that the Secretary of State considers the board should seek to achieve. Those objectives will be developed in close co-operation with the board. It will not be a detached process. Indeed, the Bill requires the Secretary of State to consult the board before setting the mandate. Nevertheless, decisions about the content of the mandate will ultimately rest with the Secretary of State, and I contend that that is entirely appropriate. It is the Secretary of State taking responsibility on behalf of the Government for what he is requiring the board to achieve.

I hope that I have shown that the level of transparency and of public accountability over the mandate will be very great indeed. I do not share noble Lords' apprehensions that somehow Parliament will have no opportunity to comment on the mandate. Quite the reverse is the case. We will ensure that it does, and it is right that it does. This is an entirely new situation for the NHS. I hope that that is welcome to noble Lords and that I have said enough to persuade the noble Lord, Lord Warner, to withdraw his amendment.

Baroness Jay of Paddington: I wonder whether the Minister can help me with a point he made in response to the noble Lord, Lord Owen. He was raising some important points of principle about the Secretary of State's role and the way in which it, as it were, percolates through so many of the provisions in the Bill, and the Minister referred to Clause 49 as being something that should ease those concerns. I realise that we are not discussing Clause 49 at the moment, but the Minister and the Committee will remember that the Select Committee on the Constitution was concerned that Clause 49 was not an adequate answer to some of these points of principle that were raised by, among others, the noble Lord, Lord Owen. Can the Minister help me this afternoon on that?

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Earl Howe: The noble Baroness knows that I have undertaken to engage in discussions outside this Chamber about Clauses 1 and 4 and their relationship with Clauses 10 and 20, and that is what I intend to do. There is a broader question here. My point to the noble Lord, Lord Owen, and the noble Lord, Lord Warner, who suggested in his opening speech that somehow the Secretary of State would detach himself and say, "Not me, guv" about anything that happened in the health service, is that they are mistaken because Clause 49 requires the Secretary of State to keep health service functions under review-in other words, not just the functions, but the effectiveness of the exercise by the bodies of those functions in relation to the health service. That is a very powerful duty. It is not a signal that the Secretary of State can just detach himself from what is going on in the health service. If he is holding the board to account, it involves him doing what Clause 49 requires, and I do not think that anything in the Bill negates that.

Lord Owen: The procedure in another place is deliberately very limited in terms of getting to a legislative change. This mandate has many of the qualities of legislation. It lasts for a year. It is going be a fixed statement. Is the Minister really telling us that the Secretary of State will not be saying that, because the mandate has been given, this is a question for the commission or the board-one which he would normally accept on the Floor of the House? Past experience is that he will pass that responsibility on the Floor of the House to, in this case, the commission. This is what concerns many people: there will be a change in procedure in how questions are answered in the House of Commons. The Minister has still not answered the question. This amendment allows a substantive change in the mandate that would stay for a year to be instituted by Parliament after it knows what is in the Minister's mind, and he appears to be rejecting that. Is he rejecting that?

Earl Howe: I am surprised that the noble Lord, Lord Owen, thinks that the health service should be run in that way; that is, Parliament in effect mandating requirements to the health service whenever it chooses. I do not think that is a helpful idea. I think it is helpful for the Secretary of State, as now, to take responsibility for the health service but in the future to take direct responsibility for what lies in the mandate. Should events during a given year raise questions about the performance of the board, the Secretary of State would be answerable to Parliament for whatever the event was, and he would indeed have to take the necessary advice from the board. What he would not be saying is, "This is not my concern, guv". He is answerable to Parliament in the ways that I have indicated. There is obviously a need for the board to take responsibility for the day-to-day management of the health service. However, we are seeking to achieve a balance between the Secretary of State taking responsibility in Parliament for what is in the mandate and the outcomes that he has set for the health service.

This is a shift of responsibility, it is not an abdication of responsibility-that is the distinction. Power is a zero sum game. If you shift power from the Secretary

22 Nov 2011 : Column 963

of State down to the health service, you cannot at the same time expect the Secretary of State to retain the same degree of power. We are transferring power in two directions; from the Secretary of State downwards, and from the Secretary of State upwards to Parliament. That is the picture that I hope noble Lords will keep in their minds.

Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Earl, but there are some extra points here. What we have seen from the Secretary of State recently is no desire to desist from day-to-day involvement in the National Health Service. We have seen a number of interventions-which, as the noble Earl knows, I welcome; I believe that is the duty of the Secretary of State. I am still completely mystified as to how the Secretary of State will do this in the future. I can see that you have the NHS constitution; I can see that in the objectives set in the mandate the Secretary of State will say to the NHS Commissioning Board, "You will do the right thing on waiting times". However, what happens if, because of resource constraints, clinical commissioning groups put in artificial devices to extend waiting while still meeting the 18-week targets? They will be okay under the constitution, but that action is found to be unacceptable in PCTs now. Where does the intervention come? The Secretary of State will be required by Parliament to intervene. There will be no getting away from that.

The second point is about accountability upwards. I say again to the noble Earl that I do not know why he will not take this point away. We have the Planning Act 2008; we have had a highly successful process of examining national policy statements, which must be of the same degree of importance as the mandate. It has been clearly set out how Parliament will scrutinise those: it allows in your Lordships' House a process in Grand Committee and then in your Lordships' Chamber if a Motion is moved. However, at the end of the day the Secretary of State can ignore what Parliament says because it is the Secretary of State's responsibility to set the national policy statement as he would the mandate. If the Government are claiming that this is an appreciable shift of power, I am puzzled as to why on earth Parliament is not allowed more involvement in scrutinising the mandate.

Earl Howe: Because it would get Parliament into the territory of micromanaging the health service, if it so chose. That is not the territory we would want to be in, any more than we wish the Secretary of State to micromanage the health service. That is the problem. The Secretary of State has to take responsibility for the objectives set for the health service. I think there is a general acceptance among those in the health service and indeed the public at large that the health service has to be judged on a different set of measures than it has been in the past-namely, on its outcomes and the cost effectiveness with which it approaches the use of the budget given to it.

We believe that undue political influence is undesirable. Parliament is capable of exercising that kind of interference every bit as much as a Secretary of State. We are saying, however, that Parliament has every right to

22 Nov 2011 : Column 964

scrutinise the Secretary of State's proposals, to feed into those proposals, to be listened to and to be responded to. However, in our contention, it is undesirable for us to go beyond that because in the end, the health service has to know where it stands. If this is an endless process of Parliament second guessing the mandate and coming forward all the time with suggested changes, we will not have a workable system.

Lord Warner: My Lords, we have had a very interesting debate on Amendment 96. I cannot say that I have been convinced by the noble Earl's argument that he will not have a large amount of clutter in this mandate as a result of this public consultation. The poor old NHS will have to make the best of it. I suspect that at some stage we will come back to this issue of placing some limit on the objectives and requirements. In the mean time, I beg leave to withdraw Amendment 96.

Amendment 96 withdrawn.

Amendments 97 to 97A not moved.

Amendment 98

Moved by Lord Warner

98: Clause 20, page 16, line 26, at end insert "and be prepared to inform Parliament of any major reservations expressed by the Board in writing on the practicality of meeting those objectives or requirements within the resources to be made available to the Board."

Lord Warner: My Lords, I found the arguments used by the noble Earl on this particular amendment in this debate utterly unconvincing. We have a very serious risk, in the process he described, of a level of overload on the board which is unrealistic in relation to the resources available. I can just imagine the kind of negotiations that will take place between Richmond House and the board, wherever it is, up in Leeds, to try to ensure that the Secretary of State is not embarrassed. We need something along the lines of Amendment 98. The noble Earl has not been willing to take this away and consider it, and so I wish to test the opinion of the House.

4.17 pm

Division on Amendment 98

Contents 198; Not-Contents 236.

Amendment 98 disagreed.

Division No. 1

CONTENTS
Ahmed, L.
Allenby of Megiddo, V.
Alton of Liverpool, L.
Anderson of Swansea, L.
Andrews, B.
Bach, L.
Bakewell, B.
Barnett, L.
Bassam of Brighton, L. [Teller]
Beecham, L.
Berkeley, L.
Best, L.
Billingham, B.
Bilston, L.
Blood, B.
Borrie, L.


22 Nov 2011 : Column 965

Bradley, L.
Bragg, L.
Brennan, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Browne of Belmont, L.
Browne of Ladyton, L.
Butler of Brockwell, L.
Campbell-Savours, L.
Christopher, L.
Clancarty, E.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cobbold, L.
Collins of Highbury, L.
Condon, L.
Corston, B.
Craigavon, V.
Crawley, B.
Cunningham of Felling, L.
Davies of Coity, L.
Davies of Oldham, L.
Davies of Stamford, L.
Deech, B.
Desai, L.
Dixon, L.
Donaghy, B.
Drake, B.
Dubs, L.
Elder, L.
Elystan-Morgan, L.
Erroll, E.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L.
Falkland, V.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Fellowes, L.
Finlay of Llandaff, B.
Ford, B.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Gale, B.
Gibson of Market Rasen, B.
Glasman, L.
Golding, B.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Grantchester, L.
Grenfell, L.
Grey-Thompson, B.
Griffiths of Burry Port, L.
Grocott, L.
Hannay of Chiswick, L.
Hanworth, V.
Harries of Pentregarth, L.
Harris of Haringey, L.
Harrison, L.
Haskel, L.
Haskins, L.
Haworth, L.
Hayman, B.
Hayter of Kentish Town, B.
Healy of Primrose Hill, B.
Henig, B.
Hilton of Eggardon, B.
Hollick, L.
Hollins, B.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howells of St Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Stretford, B.
Hunt of Kings Heath, L.
Hylton, L.
Irvine of Lairg, L.
Jay of Paddington, B.
Jones, L.
Jones of Whitchurch, B.
Judd, L.
Kerr of Kinlochard, L.
King of West Bromwich, L.
Kingsmill, B.
Kirkhill, L.
Knight of Weymouth, L.
Laird, L.
Laming, L.
Lea of Crondall, L.
Levy, L.
Liddell of Coatdyke, B.
Liddle, L.
Lipsey, L.
Lofthouse of Pontefract, L.
Low of Dalston, L.
Lytton, E.
McAvoy, L.
McConnell of Glenscorrodale, L.
McDonagh, B.
McFall of Alcluith, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mallalieu, B.
Masham of Ilton, B.
Maxton, L.
Meacher, B.
Mitchell, L.
Moonie, L.
Morgan, L.
Morgan of Drefelin, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Manchester, L.
Morris of Yardley, B.
Northbourne, L.
Nye, B.
O'Loan, B.
Owen, L.
Palmer, L.
Patel, L.
Patel of Blackburn, L.
Patel of Bradford, L.
Pitkeathley, B.
Plant of Highfield, L.
Prashar, B.
Prescott, L.
Puttnam, L.
Quin, B.
Radice, L.
Reid of Cardowan, L.
Rendell of Babergh, B.
Richard, L.
Rogan, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Scotland of Asthal, B.
Sewel, L.
Sheldon, L.
Simon, V.
Smith of Basildon, B.
Smith of Finsbury, L.
Soley, L.
Stevenson of Balmacara, L.
Stoddart of Swindon, L.
Taylor of Blackburn, L.
Taylor of Bolton, B.


22 Nov 2011 : Column 966

Temple-Morris, L.
Tenby, V.
Thornton, B.
Tomlinson, L.
Touhig, L.
Triesman, L.
Tunnicliffe, L. [Teller]
Turnberg, L.
Turner of Camden, B.
Wall of New Barnet, B.
Walton of Detchant, L.
Warner, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
West of Spithead, L.
Wheeler, B.
Whitaker, B.
Whitty, L.
Wigley, L.
Williams of Elvel, L.
Williamson of Horton, L.
Wood of Anfield, L.
Woolf, L.
Woolmer of Leeds, L.
Worthington, B.
Young of Hornsey, B.
Young of Norwood Green, L.
Young of Old Scone, B.

NOT CONTENTS
Addington, L.
Ahmad of Wimbledon, L.
Alderdice, L.
Anelay of St Johns, B. [Teller]
Ashdown of Norton-sub-Hamdon, L.
Ashton of Hyde, L.
Astor, V.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Baker of Dorking, L.
Ballyedmond, L.
Barker, B.
Benjamin, B.
Berridge, B.
Bichard, L.
Black of Brentwood, L.
Blackwell, L.
Blencathra, L.
Bonham-Carter of Yarnbury, B.
Boothroyd, B.
Boswell of Aynho, L.
Bowness, L.
Bradshaw, L.
Bramall, L.
Bridgeman, V.
Brinton, B.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Browning, B.
Burnett, L.
Buscombe, B.
Butler-Sloss, B.
Byford, B.
Caithness, E.
Carrington, L.
Cathcart, E.
Chalker of Wallasey, B.
Chorley, L.
Clement-Jones, L.
Colwyn, L.
Cope of Berkeley, L.
Cormack, L.
Cotter, L.
Courtown, E.
Coussins, B.
Cumberlege, B.
De Mauley, L.
Dear, L.
Deben, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Dobbs, L.
Doocey, B.
Dykes, L.
Eames, L.
Eaton, B.
Eccles, V.
Eccles of Moulton, B.
Eden of Winton, L.
Edmiston, L.
Emerton, B.
Empey, L.
Falkner of Margravine, B.
Faulks, L.
Feldman of Elstree, L.
Fellowes of West Stafford, L.
Fink, L.
Flight, L.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
Framlingham, L.
Fraser of Carmyllie, L.
Freud, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Gardner of Parkes, B.
Geddes, L.
German, L.
Glenarthur, L.
Glentoran, L.
Gold, L.
Goodhart, L.
Goodlad, L.
Grade of Yarmouth, L.
Green of Hurstpierpoint, L.
Greenway, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Harris of Peckham, L.
Harris of Richmond, B.
Henley, L.
Higgins, L.
Hill of Oareford, L.
Hodgson of Astley Abbotts, L.
Hooper, B.
Howard of Lympne, L.
Howe, E.
Howe of Aberavon, L.
Howell of Guildford, L.
Hunt of Wirral, L.
Hussein-Ece, B.
Inglewood, L.
James of Blackheath, L.
Jenkin of Kennington, B.
Jenkin of Roding, L.
Jolly, B.
Jones of Cheltenham, L.
Kakkar, L.
Kilclooney, L.
King of Bridgwater, L.
Kirkham, L.
Kirkwood of Kirkhope, L.
Knight of Collingtree, B.


22 Nov 2011 : Column 967

Kramer, B.
Lamont of Lerwick, L.
Lawson of Blaby, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Lexden, L.
Lingfield, L.
Linklater of Butterstone, B.
Listowel, E.
Lucas, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
McNally, L.
Maddock, B.
Magan of Castletown, L.
Maginnis of Drumglass, L.
Maples, L.
Mar, C.
Mar and Kellie, E.
Marks of Henley-on-Thames, L.
Marlesford, L.
Mayhew of Twysden, L.
Methuen, L.
Montrose, D.
Morris of Bolton, B.
Murphy, B.
Naseby, L.
Newby, L.
Newlove, B.
Nicholson of Winterbourne, B.
Noakes, B.
Northover, B.
Norton of Louth, L.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Oppenheim-Barnes, B.
Palmer of Childs Hill, L.
Parminter, B.
Patten, L.
Perry of Southwark, B.
Phillips of Sudbury, L.
Plumb, L.
Popat, L.
Ramsbotham, L.
Randerson, B.
Rawlings, B.
Reay, L.
Renfrew of Kaimsthorn, L.
Rennard, L.
Renton of Mount Harry, L.
Ribeiro, L.
Risby, L.
Ritchie of Brompton, B.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rotherwick, L.
Ryder of Wensum, L.
St Edmundsbury and Ipswich, Bp.
Saltoun of Abernethy, Ly.
Sanderson of Bowden, L.
Sandwich, E.
Scott of Needham Market, B.
Seccombe, B.
Selkirk of Douglas, L.
Selsdon, L.
Sharkey, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Sheikh, L.
Shipley, L.
Shutt of Greetland, L. [Teller]
Skelmersdale, L.
Slim, V.
Smith of Clifton, L.
Stedman-Scott, B.
Steel of Aikwood, L.
Stephen, L.
Stewartby, L.
Stirrup, L.
Storey, L.
Stowell of Beeston, B.
Strasburger, L.
Strathclyde, L.
Swinfen, L.
Taverne, L.
Taylor of Holbeach, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Swynnerton, L.
Thomas of Winchester, B.
Tope, L.
Tordoff, L.
Trimble, L.
True, L.
Trumpington, B.
Tyler, L.
Tyler of Enfield, B.
Ullswater, V.
Verma, B.
Wade of Chorlton, L.
Wakeham, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Warnock, B.
Wasserman, L.
Watson of Richmond, L.
Waverley, V.
Wei, L.
Wheatcroft, B.
Wilcox, B.
Willoughby de Broke, L.
Wolfson of Sunningdale, L.
Younger of Leckie, V.

4.31 pm

Amendment 99

Moved by Lord Patel

99: Clause 20, page 16, leave out lines 27 and 28 and insert-

"(b) Healthwatch England, and"

Lord Patel: My Lords, I apologise to the Minister and to the noble Baroness, Lady Northover. Yesterday afternoon I told them that I was degrouping these amendments to be taken at a later stage of the Committee.

22 Nov 2011 : Column 968

That was, however, before I got beaten up later in the day and lost my normal aggression. I had to retable them and I apologise for that. I hope that it is possible to take them today.

I will concentrate mainly on HealthWatch England. The purpose of this amendment is simple-to make both HealthWatch England and local healthwatch organisations independent bodies and, in doing so, to give patients and public a truly independent voice. It does not change the broad thrust of the policy in any way, nor does it have any more resource implications.

In the Government's list of intentions for HealthWatch England, the Minister recognised the need for it to maintain independence; to set its own work programme; to publish its own annual report to Parliament; and to have independent membership. He also said that regulation would be brought forward by the Secretary of State in relation to this. It would also provide advice directly to the Secretary of State, the NHS Commissioning Board, Monitor and local authorities. At the same time, the list also suggests that HealthWatch England will be able to advise the Care Quality Commission on the views of people who use the service; that it will be a committee of the CQC; and that the CQC will respond in writing to HealthWatch England's advice.

HealthWatch England's operating plan, which was discussed by the CQC board, suggests that its main focus will be local; it will be small and strategic; its accounting officer will be the CEO of the CQC; its staff will be employed by the CQC; and service-level agreement on its functions will be put in place. The plan also suggests that HealthWatch England's committee will be appointed by the CQC; that its chair will be subject to CQC board governance; and that conflicts of interest will be decided by the board. HealthWatch England will publish reports on a "no surprise" basis. This is quite contrary to the suggestion that HealthWatch England should be independent of the CQC. The CQC clearly sees itself having a close relationship with HealthWatch England, with the latter relying on it for significant analytical intelligence and other analytics and data. Joint data collection will not be appropriate for the diverse functions of the two organisations. The relationship between the two has not had a good start either, with LINks and others feeling that they have not been fully consulted by the CQC in developing the plan.

The proposed duties of HealthWatch England are intended to provide local healthwatch organisations with advice and assistance in relation to promoting and supporting the involvement of people in the commissioning, provision and scrutiny of local care services. Under the duties, people will be able to monitor local health and social care services; their views will be obtained on the standard of local services; and information will be gathered on local need for and experiences of care services. Recommendations will be made to commissioners and providers of services about how local care services could or should be improved.

The relationship between HealthWatch England and local healthwatch organisations is important. The Bill establishes HealthWatch England as a statutory committee. Ministers say that the relationship between HealthWatch England and local healthwatch organisations must be an open dialogue so that critical knowledge of

22 Nov 2011 : Column 969

the views and experiences of patients and local service users will have a real influence on the delivery of health and social care. The aspiration is that local healthwatch organisations and HealthWatch England will collaborate with local authorities and clinical commissioning groups. However, the Bill does not give local healthwatch organisations any specific role in relation to clinical commissioning groups. They have no direct role in influencing the commissioning arrangements of CCGs in relation to the needs of local people, nor do they have any say in it.

In my view, therefore, HealthWatch England should be established as an independent body outside the CQC; be the guarantor of an independent local community voice; have clear accountability to local healthwatch organisations; and have adequate resourcing-there are concerns that the CQC will not adequately fund HealthWatch England. It should provide an expert team that has the knowledge and experience to build HealthWatch; and support the transition of LINks into healthwatch organisations and the development of local healthwatch's ability to carry out its five statutory functions. It should provide local healthwatch organisations with support, training, advice, resources and expertise on health and social care policy, legal processes and myriad other issues if local healthwatch is to take off quickly. On the basis of current and previous experiences, I feel that the CQC's belief that local healthwatch can be built and become operational quickly is misplaced-that is the experience of LINks, too.

HealthWatch England should have a capacity to carry out research that is needed by local healthwatch organisations to support their work. HealthWatch England should support the development of local expertise to gather information and data from all sources-public, patients, complaints and serious incident investigations-so that it has a well developed and informed view of the state of local health and social care services. It should support the development of regional healthwatch organisations so that a powerful regional voice on services and commissioning can be developed. It should provide the capacity to elevate local and regional demands for better health and social care to the NHS Commissioning Board, the Secretary of State, Monitor and the CQC. It should support the co-ordination of major demands for changes to health and social care policy and commissioning, integrating local healthwatch.

It was pointed out to the CQC that a research capability was essential for HealthWatch to function. If a potential service problem is suspected, it is necessary to check how widespread it is. Beyond this, the organisation must be able to carry out original research on consumer needs in order to improve services. No research capability had been placed in the plan that the CQC develops. It appeared in meetings with LINks that the CQC might commission research, but we know from examples that research at a local level is important-staff being the classic example.

Diverse and inclusive healthwatch organisations could substantially increase the power and influence of local people to monitor services more effectively, improve safety, influence commissioning and provide a voice that will be heard in the local, regional and

22 Nov 2011 : Column 970

national development of health and care policies. To be effective, HealthWatch, nationally and locally, must be fully independent and democratic. Others with experience have informed me that the dependent relationship that HealthWatch is intended to have in relation to local authorities is deeply flawed. They believe the proposed system will be expensive and difficult to establish. The decision not to ring-fence funding will make these bodies weak and vulnerable.

The way forward is for HealthWatch England to be an independent body helping the local healthwatch organisations, which should also be independent of the local authority. If the Government are serious about what they say-that the Bill is about putting patients and the public at the centre and the slogan, "no decision about me without me",is what they wish to follow-then the way to create public confidence is to have HealthWatch England as an independent body. I beg to move.

Baroness Wheeler: My Lords, I start by saying that I was not one of the ones who beat up the noble Lord, Lord Patel, over grouping issues, although it was extremely frustrating to have them appear and disappear all the time. Anyway, we now have our list and I am speaking to that.

I am pleased to support the amendments in the group, which have two important aims: first, to ensure that HealthWatch England and local healthwatch organisations are truly involved and consulted where decisions are made about the development and planning of commissioning services and on reconfiguration or changes to services; secondly, to ensure that it is an independent statutory body and not a subcommittee of the Care Quality Commission.

The Government's far-reaching proposed changes to the NHS, with the emphasis on competition and regulation, make the need for HealthWatch England to be given robust and independent scrutiny powers even more important. Amendment 305 from my noble friend Lord Harris and myself is a probing amendment with the intention of ensuring that HealthWatch England and local healthwatch organisations have the strengthened power and functions they need. It establishes HealthWatch England as an independent body responsible for providing the Secretary of State, the NHS Commissioning Board, the Care Quality Commission, Monitor and local authorities with information and advice on the views, needs and experiences of users of health and social services, and the views of local healthwatch organisations on care standards and how they can be improved.

Under Amendment 305, HealthWatch England is responsible for providing local healthwatch organisations with resources, advice and assistance. The amendments of my noble friend Lord Whitty, Amendments 318C and 318D, set out similar and additional powers and functions for HealthWatch England to those proposed in Amendment 305. We fully support these, which include powers of investigation into complaints and powers to seek disclosure of information from health and social care providers, the NHS Commissioning Board, CQC and others. Important functions also include information, research and representation functions.

22 Nov 2011 : Column 971

The independence of HealthWatch England from the Care Quality Commission is vital if it is to be the national service users watchdog and champion. It must be able to hold regulators in the whole of the health and social care system to account and be the independent guarantor of the rights, duties and independence of local healthwatch organisations. Given the uncertainties still surrounding how Monitor and the CQC will work together, and the current trials and tribulations facing the CQC, how realistic is it to expect the CQC to undertake this role or for HealthWatch England to function properly as a CQC committee?

Does the Minister acknowledge these problems? Will he-or she-consider working with NLAM and other interested stakeholders to produce an alternative model for HealthWatch England that will secure the Government's stated policy for a powerful and independent system of public involvement in health and social care? To be effective, local healthwatch must be able to scrutinise how consortia and health and well-being boards undertake public engagement and transparency and are ensuing that the public voice is embedded in the care pathway design. They should also be given the right to comment on tenders and commissioning contracts before release.

LINks organisations currently have significant powers to enter and view the premises of all health and social care providers regulated by the CQC-another potential conflict of interest if the CQC relationship is not changed. These powers are often little used by local LINks organisations and we hope that their retention in the Bill and robust guidance to local healthwatch organisations on how they can be applied to the benefit of improved patient care and treatment will lead to these important powers being more frequently used. I would welcome the Minister's endorsement of that.

4.45 pm

On the question of the transition from LINks to HealthWatch, we would underline that the involvement of LINks organisations is essential to ensure that the skills, knowledge and dedication of the existing volunteers are not lost. I also emphasise the importance of ensuring that healthwatch local organisations are properly funded. This is an uncertain time for the development of local healthwatch, with local authorities beginning to tender for hosting healthwatch organisations. Moreover, in Surrey, Sutton LINk, for example, has been selected as a pathfinder healthwatch but is rightly concerned at how realistic it is to take on a new role and the increased costs of undertaking new duties such as the complaints advocacy without any form of transition or improved funding. Will the Government reconsider their decision not to fund pathfinder LINks healthwatch organisations to enable an effective transition to healthwatch?

We should recognise the widespread concern raised by current LINks organisations that the healthwatch arrangements make them dependent on the local authority for funding. With local authorities' greater involvement in healthcare, particularly for public health, how will healthwatch organisations be able to

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exercise independence and have public confidence and trust in their role? I look forward to the Minister's response on these key transition issues.

Lord Harris of Haringey: My Lords, I apologise to my noble friend Lord Patel if he in any sense felt beaten up by me. I absolve my noble friend Lady Wheeler from any involvement in that process. I also apologise to the long-suffering officials in the Government Whips Office. If my robust style is mistaken, they should really see what I am like when I am angry.

I added my name to a number of amendments in the various versions of this group. I also proposed Amendment 305. If the noble Baroness who I believe is replying to this debate is planning to highlight any technical flaws in that amendment, I should point out that I drafted it myself. Therefore, it no doubt does contain a number of technical flaws. But the purpose of the amendment is to assess the feeling within the House and the strength of feeling in the department about the extent to which it is important that HealthWatch England and healthwatch organisations at local level should be independent.

The principle underlying this group of amendments is straightforward-the centrality of the voices of patients and users in the NHS. That voice must be, and must be seen to be, independent of the various provider and regulatory interests. That is what underpins all of the different amendments.

I find it difficult to understand how the Government will oppose the amendments. They keep telling us that the voice of the patient and the user will be central to all these arrangements. They say that that is their intention. But they must be aware, because everybody else is, of the cynicism and doubt that is being expressed around the country about this whole package of NHS changes. Therefore, they should be able to reassure patients and users that their voices will be heard at every level within this complicated restructuring that will take place. That is extremely important.

What is more, it will be important for that voice to be seen to be independent. Members of the public will be concerned about what is happening. They will worry whether their doctors, whom they do not fully understand as being part of commissioning groups, will somehow be making judgments about their care, influenced by financial interests. They will want to be assured that they can go somewhere for proper advice and support, and that that place will genuinely be independent of all of those interests.

A huge expectation is now being placed on local healthwatch organisations. They are expected to provide that independent advice and information, to be able to monitor the nature of the service at local level and to be able to comment on the various changes that are taking place and on the proposals that are coming from the plethora of commissioning groups, senates and goodness knows what else we are going to have. They are going to be there to make recommendations. So, there will be enormous expectations on behalf of the public as to what these groups are going to do. Similarly, the national body, HealthWatch England, will have enormous expectations upon it. That is why it is so important to get these arrangements right. The

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proposals for HealthWatch England and local healthwatch are an advance on what we have at present in terms of LINks. There is no question about that-they are a step forward. The record of successive Ministers and Governments in terms of patient representation in the NHS is not very good. This is a step forward from where we are at the moment. So, let us try to get it right. Why not deal with what are comparatively small issues in terms of how the system works?

The trouble is that, at the moment, the arrangements that the Government are proposing are flawed in two key respects: first, on the issue of independence, as the noble Lord, Lord Patel, has already indicated; and secondly, in terms of the resources available. Let us consider for a moment the position of HealthWatch England as a sub-committee of the Care Quality Commission. That might be a very neat way of not increasing the number of quangos by one; it may be that was the sole motivating feature. However, the reality is that it dangerously compromises the independence that I talked about as being so important. Often, HealthWatch England will have to say, on behalf of local healthwatch organisations, that the regulator should be doing something, has failed to do something or has been inadequate in the way that it has done that. In the last few weeks, we have seen the Minister's colleagues in the Department of Health making quite critical comments about the way in which the CQC has fulfilled its remit. If Ministers are saying that-and Ministers are, after all, the paymasters of the CQC-what is it going to be like for those people whose remit is to raise these issues but are themselves subordinate to that regulatory body? It is going to be a real conflict and a very difficult position for them. The nature of that relationship-the fact that they are a mere sub-committee and are subjected to all of the panoply of arrangements that go with that-is going to be seriously limiting.

I am aware that the CQC is making enormous efforts to try and demonstrate their good faith in all of this. I am sure that the individuals involved have good faith as far as this is concerned. However, we are here considering legislation that will set those arrangements. Once those arrangements are set, the good will of the individuals who may be trying to make it work at the moment may not persist-not because those individuals will change their minds, but because, over time, those individuals will move on and others will take their place. Budgetary and other pressures on the CQC will rise. The feeling that they do not like being criticised by a body that is technically subordinate to them will increase. That is why that arrangement does not work.

There is an even stronger argument as to why local healthwatch organisations should not be subordinate to principal local authorities in their area. The Government's flaws here are flaws twice over. Not only are they imperilling the independence of local healthwatch organisations by saying that-even though they are supposed to be independent-they are creatures of the local authority, the funds will be provided by the local authority and many of the facilities may well be provided by local authority but, because the funds will not be ring-fenced, it will be far too easy for local authorities to start to apply the screws if they do not like the criticisms that come from it.

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A major conflict of interest is being created. HealthWatch cannot be accountable to, and at the same time funded by, local authorities because the bodies which commission and provide the services are the local authorities in many instances. However, the Government are saying that HealthWatch can advise members of the public about those services. How can HealthWatch organisations be funded by the same bodies that are commissioning and providing those services? This is precisely the area where the confidence of members of the public and of individual patients is so important. They have to go for advice to a body which is funded by the people about whom they wish to take advice. That hardly looks independent or satisfactory. If HealthWatch is made accountable to local authorities as the Bill proposes, the public will, frankly, have no confidence in that and all the efforts that the Department of Health and the Government have made to try to create a better structure will be wasted. That resource will be wasted because the public will not have confidence in these arrangements.

There is also a failure to protect the funding. I do not know how many hot coals Ministers in the Department of Health had to crawl over to get £60 million out of the Treasury for HealthWatch. I am not suggesting that the Department for Communities and Local Government is any more evil than any other government department, but if you hand the funding to that department, which then hands it on to individual local authorities without a label saying, "Not only is this money to be used for HealthWatch but it cannot be used for anything else", my experience as a former council leader tells me that you cannot guarantee that the money will be used for the purpose that you wish.

I spoke earlier about localism and said how wonderful it was that the Government should devolve responsibility for this issue. However, it is not a wonderful example of localism if you expect something to happen, you pass the money on and then you are shocked if the money is not used for that purpose. If you want the money to be used for a particular purpose, you have to label it and ring-fence it. However, the Government will not do that. They say that they cannot do that as it would be inappropriate in the spirit of localism.

I have received numerous e-mails and messages from LINks on this very subject. Their experience of not having ring-fenced budgets this year is salutary. One message states:

"As a LINk our funding was reduced by the local authority by 65 per cent this year".

Another states:

"I have spent 30 years as a senior business professional and business consultant and it is ludicrous to set an organisation targets to be funded by set criteria and then reduce those funds by 65 per cent. This makes a mockery of the organisation's ability to carry out its public remit".

That is what is happening at the moment. What guarantees can the Government give that it will not happen in the future?

There is a technical point here. The Department of Health has presumably secured these funds through the comprehensive spending review. Who will own those funds the next time that the comprehensive spending review is negotiated? Will it be the Department

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of Health or the Department for Communities and Local Government? If it is the Department for Communities and Local Government, how will it rank given its other priorities which have nothing to do with HealthWatch? If it is the Department of Health, how will it answer the question from the Treasury, "How do you know that this money is being spent in the way that you intend?". It will not be able to answer that question, as I suspect that the correct answer is that the money will disappear. LINks already have huge concerns about the resources question.

The other element of this concerns what sort of patient representative mechanism we want. Do we want something which is top-down or something which comes from local organisations? The amendment that stands in my name seeks to establish an arrangement whereby local healthwatch organisations have ownership of the national body which speaks in their name. I believe that that is essential. Even if you created HealthWatch England as an independent structure without the problems of it being a tool of the regulator, you will still not get the necessary buy-in at local level unless local organisations feel that they are part of it and have a say in its organisation. I speak as someone who was director of the Association of Community Health Councils for England and Wales for 12 years, and I know how important it was for the member organisations to feel that what we were saying as the national body reflected-not to the letter, but reflected-what they felt was important as local organisations. If you do not have that mechanism, if you do not have that process built into the legislation, I am afraid that you will create a gulf between the national body and the local bodies. That is surely unsatisfactory.

The Government's proposals could make an enormous difference to patient representation in the new NHS, and patient representation is going to be enormously important in the new structure, because I think that many patients will feel disempowered and worried by what is happening. However, those arrangements are flawed unless the Government accept the spirit of the amendments in this group-and unless they accept that HealthWatch, both nationally and locally, should be independent, and that resources should be clearly ring-fenced and clearly identified and cannot be used by bodies that have no interest, necessarily, in patient representation used for other purposes.

5 pm

Lord Warner: My Lords, I have added my name to Amendment 99 and to a number of other amendments tabled by the noble Lord, Lord Patel, and my noble friend Lord Harris. I do not want to speak for very long on this issue. I have some inhibition about speaking about this because I do not think that my own party's record on patient representation was extremely startling. I had to take some of those measures through your Lordships' House and usually did not get the better of the arguments with the noble Earl on these issues. I accept that the Government have started off pretty well on this issue and that they have a good brand-HealthWatch is quite a good brand. I am an athletics fan, however, and the Government are beginning to look like a 200-metre runner who has moved up to 400 metres but is now starting to run out of steam on

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this issue in the last 100 metres. What I think has happened is that the money has started to dominate the discussion.

I also recognise here a favourite Department of Health word-hosting. There are two phrases that used to worry me as a Health Minister: "the NHS family", which was usually an excuse for doing something foolish; and "hosting". The danger of hosting is that, for what seemed to be perfectly good reasons, you put one organisation in the maw of another organisation whose culture is fundamentally different from the needs of the organisation being hosted. The real danger here is that there is no obvious similarity between a regulator and a patient representative organisation.

I will give the noble Earl just one example where the Government would do well to pause and think. If you are the parent of someone with a learning disability who is in a home which has mistreated and abused them and the regulator has let you down, or you perceive that the regulator has let you down, you are not going to be very pleased to find that the regulator is the very same body that is hosting the national body representing patients. That is a real example, not a phoney example. I think that there could be many such cases-and we will have a debate on Dilnot and social care on Thursday. However, there are some serious problems in the funding and quality of some of our social care institutions. The regulator is going to have a tough time in these areas over the coming years. It is a mistake for HealthWatch England to be hosted, in effect, by the regulator. Given the size of the NHS budget, the Government are spoiling their ship for a ha'porth of tar, to use a corny phrase, by not finding the money to fund this body adequately, so that it can stand on its own two feet and be secure and independent, and so that it can be allowed to be seen to be secure and independent by the patients who will put their trust in it.

I shall end on the point made by the noble Lord, Lord Harris, about ring-fencing. I can give the noble Earl a good example of where the Government have tried to do the right thing. They tried to put some extra money into social care that would go down to local authorities to improve the volume and quality of social care, but they did not ring-fence it. It was the best part of £1 billion, out of the £2 billion increase in social care funding. We now have a lot of people who thought that that was a jolly good idea. However, as it was not ring-fenced, the Government will not get any credit for it. It has gone into local budgets, but we do not know where. If you talk to any director of adult social services they will tell you that one of the problems was that the money was not ring-fenced, so they cannot reassure the Government that the money has gone to the purposes for which the Government sent it down the conduit to the local authorities. There is a very real danger that the same will happen with the HealthWatch money that will go down to the local level. I strongly support these amendments.

Baroness Masham of Ilton: My Lords, I spoke on this subject at Second Reading, and I want to go back in history for a few minutes. I remember that when the community health councils were closed down, the noble Earl, Lord Howe, and I felt strongly that the

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health forums which were put in their place should be independent. If a local healthwatch organisation is linked too closely to its local authority, it will be difficult for it to be able to speak out if it finds that both health and social care facilities are not up to scratch. What happens if they disagree with the CQC? Patients often need help, so an independent body would be much better to help them with their problems. It is vital that HealthWatch is adequately funded to do a useful job, otherwise it will fail. Perhaps I may give an example concerning a rural area. What happens if there are not adequate funds for the payment of members' travel expenses? That has been found with the local LINks. I hope that the Minister will give this serious consideration.

Baroness Cumberlege: My Lords, I have listened to the debate, and some powerful arguments have been put forward for an independent HealthWatch England. However, I am not sure that that is the right answer. The noble Lord, Lord Harris, said that he feels that the Bill is setting up the new arrangements, and of course he is right. However, when one is setting up new arrangements, it is a good idea to look at what has happened in the past. Looking back to the confederation of CHCs, one sees that it never actually made an impact. I think that that was probably because the initiative for setting up that body came from the CHCs themselves, and so the confederation had no formal legitimacy, no clout and few resources.

Lord Harris of Haringey: I would not disagree with the point about the resources, but the initiative to set up the association-not a confederation-came from the noble Lord, Lord Owen, who was Minister of Health. He announced, in what he assumed would be a very positive fashion, that he wanted to see a national Association of Community Health Councils. However, as he had not spoken to community health councils first, they felt considerable dismay about the setting-up of a national association at the behest of a Minister. The resolution to support the creation of the association was carried-I cannot remember the precise figures-by something like only 107 to 93. I am afraid that the noble Baroness's argument is flawed.

Baroness Cumberlege: My Lords, I am very grateful to the noble Lord, Lord Harris, for his history lesson. Perhaps I should not go on to the Commission for Patient and Public Involvement in Health. Perhaps he remembers that organisation, which never quite worked. I think that it did its best, but it failed to influence the Labour Government of the time. Perhaps it was a bit too strident. Maybe it was not canny enough. Maybe it did not build the relationships that are so critical when one is negotiating a change, especially with a big beast like a Government. Of course, the Labour Government closed that one down very hurriedly.

The proposal in the Bill is that HealthWatch England should be a committee of the CQC, as has already been said. There are advantages in that, provided that there are some safeguards in the way that it works. My three amendments seek to achieve those safeguards.

There are advantages in being at the top table, knowing what is going on, and building the necessary relationships to influence policy and practice. The

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CQC will, of course, have the resources to collect and analyse data on a national scale. Provided that it shares that data generously-and it must do so-it will enable HealthWatch England not to have to build its own infrastructure in order to operate effectively. That will also enable HealthWatch England to have a strategic role in shaping the new NHS. It is very important that it should not just be a sounding board for local issues, but should have a strategic vision as well. The CQC will of course learn of the issues that need addressing through the real experiences of patients, through HealthWatch England, which will be at the table.

We have to understand what both organisations bring to the party. The CQC is the regulator. Its duty is governed by the statutory standards for healthcare and it has the indicators to measure them, as set out in the Health and Social Care Act 2008. HealthWatch England brings something different: the priorities, the experiences and the views of patients and the public, through local healthwatch organisations. Played right, this combination could be very powerful. It could deliver the accountability that reflects both the priorities of government, derived from the democratic process, which I think of as the theory, and the actual experience of those who depend on health and social services during what may be the most vulnerable time in their lives, which is the reality.

If this combined perspective, to be embedded in regulation, is to work well, it is essential that HealthWatch cannot be dictated to or steered by the CQC. It must speak with a clear, strong, independent voice. This requires two things: first, the appropriate balance of membership within HealthWatch England; and, secondly, the appropriate status for its advice within the functions of the CQC. The status of HealthWatch England as a committee of the CQC may be quite pleasing in its value for money and its legislative simplicity, but it does not guarantee that clear, strong and independent voice. This is the voice of the victims who have been so badly let down by the NHS. It is the voice that has been chronicled so meticulously in the first Francis report on the mid-Staffordshire scandal, the Bristol inquiry, and other reports.

Therefore, my first amendment, Amendment 307A, ensures that the majority of the members of HealthWatch England are not also members of the CQC. This avoids the advice of HealthWatch England being biased through corporate responsibility with the CQC. My second amendment, Amendment 308A, ensures that the majority of the membership of HealthWatch England is elected from the members of local healthwatch organisations. This permits the introduction through regulation of provisions to ensure that elections cover local healthwatch organisations from across the country, and that representatives are elected through due process for an appropriate term and with appropriate accountability. We know that this works very well. We have seen regional elections to national bodies in the voluntary sector and even outside it, from student unions, to national professional associations, to the National Association of Citizens Advice Bureaux. The National Association of LINks Members recently conducted elections from its regions which were overseen externally and the process proved to be satisfactory.

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5.15 pm

My Amendment 308B places an obligation on the CQC to have due regard to the advice given to it by HealthWatch England in all its functions. This advice will have equal status to that of the CQC's current advisory committee established by the 2008 Act. If HealthWatch England is to have any teeth, it would be illogical for it to have lesser status. Due regard means that the CQC must demonstrate how it has incorporated the advice of HealthWatch England into its conclusions and actions, embedding reality into the way it applies theory.

This will open the way for HealthWatch England to comment in its report on whether the CQC has taken note of its advice, as required by new Section 45B. New Section 45A(6) only requires the CQC to respond to advice from HealthWatch England and not take any account of the way it goes about its business of regulating health and social care. This is inadequate and does not incorporate the voice of patients and the public in regulation.

Finally, I say that we should learn from past disasters and failures in the NHS. A powerful lesson from the Bristol inquiry was how important it is to involve patients and the public. Recommendation 160 from the inquiry stated:

"The public's involvement in the NHS should particularly be focused on the development and planning of healthcare services and on the operation and delivery of healthcare services, including the regulation of safety and quality, the competence of healthcare professionals, and the protection of vulnerable groups".

I would not be surprised if the second Francis inquiry states something similar. Of course, I do not know what it will say-this is just a supposition on my part. It would be good for the Government to show that they are ahead on this and that they understand the importance of these issues and are taking action through mending the Bill. If my noble friend Lady Northover is not totally convinced by my amendments-I hope that she will be, but probably she will not-perhaps she will take them away and at least give them serious thought, because I think they have merit. They will give HealthWatch England a sound basis on which to maintain some independence while still being in the tent and therefore in a strong position to influence the CQC and secure continuous improvement in the provision of healthcare.

Lord Whitty: My Lords, I, too, tabled amendments in this group. They are aimed at providing HealthWatch with the independence and resources that it requires to genuinely represent the patients and users of health and social care services. Many noble Lords will understand that I am not a health service expert. However, when the White Paper proposing these changes came out, I still had some responsibility for consumer affairs generally as chair of Consumer Focus. Health service professionals do not like to regard their patients as consumers-I am quite happy to call them patients, users or clients-but we are moving the users of health services to a situation closer to that of consumers in other markets.

If we do not have separate consumer representation that reflects at both local and national level the concerns and interests of those consumers, we will not improve the service in the interests of users and patients. The

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noble Baroness, Lady Cumberlege, tabled amendments to strengthen the position of the regulator that go a considerable way towards making sure that there is some recognition of independence. However, the role of patient representation is entirely different from that of the regulator. Inevitably there will be conflict.

I turn to other sectors. When I was the Minister responsible, we took the Consumer Council for Water out of Ofwat because there was a conflict. We took out Passenger Focus from what became the Office of Rail Regulation because there was a conflict. We always kept Energywatch and then Consumer Focus separate from Ofgem. There was tension in all those areas, but that tension is more easily resolved if there is independence, ring-fenced funding and an ability to relate directly to the consumers of those sectors independently of the regulator. There is not a huge amount of difference in the health service, although obviously there are some esoteric aspects to it. The question of price and the exchange of money at the point of service does not arise in the same way, but questions about much of the rest of customer service absolutely do arise. Indeed, the main complaints about the health service are related to customer service and are almost equivalent to those made in many private and public sector markets.

I do not accept that a role within a regulator is sufficient to represent the interests of patients and users. Many of the propositions that are before noble Lords are worthy of the Government's consideration. My own proposals are based very much on the construction of Consumer Focus, and in that sense they are not my own work but the work of the parliamentary counsel at the time. They are in no way superior to my noble friend Lord Harris's jottings. If we were to look at them all together I am sure that those of us who are arguing for independence could come up with a clear alternative, but it would be much better if the Government themselves recognised the strength of argument in this area and came up with their own proposition between now and Report. They need to make it fit with the total pattern. The Government are the only people who can make a commitment to resources and to genuine independence. After the strength of argument that has come up in this debate, and with the views from LINks and from some of the patient organisations for particular conditions and diseases that the present proposals inadequately reflect, I hope that the Government will think again.

My last point is that, in addition to independence and to separate and clear resources free from the provider and the regulator, the Government need to look at powers, because a genuinely effective consumer, user and patient organisation that does not have the power to request from the providers, and in this case the commissioners, information on how they are conducting their affairs is always at a disadvantage. In other sectors there are clear powers for the consumer organisation. In this sector I am sure that those powers are also necessary for the whole range of bodies which the new configuration of the health service will have as a result of this Bill.

I hope that the Government think about this debate and come up with their own proposals. In the mean time I support the noble Lord, Lord Patel, and others who have spoken in the debate.

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Lord Walton of Detchant: I have a short but, I believe, relevant question for the Minister. As he is aware, a medical charity called HealthWatch has existed for some years. I have the honour to be a patron of it. Every quarter it produces incisive commentaries on health matters that are not always totally in line with government policy. Has the department been able to work out some kind of mechanism by which any potential confusion in the public mind between the charity and this body, which is to be created under this Bill, can be avoided?

Baroness Masham of Ilton: My Lords, I want to ask the noble Baroness, Lady Cumberlege, about her safeguarding amendments, which are very interesting. Would she not also put down a safeguarding amendment about the funds? Jobs will not be able to be done unless funds are safeguarded.

Baroness Cumberlege: I will think about that. Having dealt with the Treasury in the past, I know how difficult it is to get anything ring-fenced. However, the noble Baroness's suggestion is very interesting and I will take it on board.

We have examples of other consumer groups being very effective within their parent organisation. I think in particular of NICE, which has done a lot to get views on its work from the general public. The Council for Healthcare Regulatory Excellence has also done that.

Lord Harris of Haringey: I am sorry to intervene again on the noble Baroness, Lady Cumberlege. It is probably because we know each other too well that I feel able to interrupt at regular intervals. The examples she has just cited are examples of bodies that are there specifically to advise the organisation concerned. The consumer panels that NICE set up are about advising NICE about particular issues in terms of clinical effectiveness and what patients in that area are concerned about. They are not representing patients more generally and they are certainly not representing patients in terms of the statutory obligations of NICE and where there might be a disagreement about what NICE is doing. They are there to inform. That is the distinction.

Lord Patel: In response to the amount of funding, as I understand it-I am sure the noble Baroness, Lady Northover, will correct me if I am wrong-the Bill suggests that the funding for HealthWatch England will be a grant in aid provided by the department to the CQC.

Baroness Jolly: My Lords, they say that too many cooks spoil the broth, but I think this is an occasion where that probably has not happened. Many hands might make light work. I ask the Minister to take these amendments away because there is an awful lot of good to be found in each of them, but not in each together, as it were.

Amendment 318C, tabled by the noble Lord, Lord Whitty, inserts a new clause and subsection (2)(a) of the new clause is about complaints. It is a nice idea

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that complaints could be taken to HealthWatch England. Complaints are a big issue to which we will be returning on Amendment 108.

The noble Baroness, Lady Cumberlege, raised the relationship between local and national healthwatches. It is critical. We would support the election of local healthwatch representatives to the national body.

Finally, on independence and finance, I believe very strongly that it is very difficult to criticise and challenge an organisation if you sit within it. I understand the point about the benefits, but if you are local, and you sit within your local health authority or nationally you sit within the CQC, generally the feeling that you are monitoring the organisation that is your host is never a good place to start. Similarly, I, too, have had letters from people who were CHIPs and then LINks about budgets being not just cut a little bit but absolutely hacked away. I would be really uncomfortable if, for example, locally the healthwatch was going to be located within the principal local authority that held the budget. We have had it already today. Intentions will be good and then somebody will come along and say, "We really need a bit more just for this". It will happen in a meeting where they are not present and, all of a sudden, there will be another slice taken. We have seen it before with lots of other things. You could look at it from a negative point of view and say these are like curate's eggs and bad in parts or good in parts, but I think too many cooks will not spoil this broth. Many hands will make light work. I ask my noble friend to take this away and have a look at it.

Baroness Northover: My Lords, I sympathise with the noble Lord, Lord Patel. He is forgiven for being subject to the beatings of the noble Lord, Lord Harris. When I made my maiden speech, the noble Lord, Lord Harris, gave me a very interesting and less than usual tribute. Noble Lords will see that we have a slight history.

Lord Harris of Haringey: The noble Baroness stood against me.

5.30 pm

Baroness Northover: As the noble Lord points out, I stood against him as a paper candidate-a non-serious candidate. When I went up to congratulate him on winning by about 2,000 votes to my 20 or whatever it was, I was given a blasting in relation to the successful campaign of one of my colleagues. That apart, I have great respect for the noble Lord, Lord Harris, and I am very happy to discuss these amendments wherever they come in the Bill. However, I would point out that these amendments are about HealthWatch England and we will return to local healthwatch organisations later on. I gather that the noble Lord, Lord Harris, will not be here at that point so has flagged up some issues which I hope to be able to address. But noble Lords may wish to be aware that we will be coming back to this in relation to the local aspects.

This has been yet another high-quality debate and a range of different perspectives have been expressed. One of the things that has come through is the concern about trying to make sure that the NHS is genuinely

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patient-centred. All too often, patients are expected to fit around services, rather than the other way around, and that is what we are seeking to tackle here. Years back, I was a very junior spokesperson on health for the Lib Dems and then I moved to international development. I remember the debates on this issue, in particular on the National Health Service Reform and Health Care Professions Bill in 2002. It is one of the things that I asked about when seeking a briefing. Various noble Lords have referred to what has happened over the years. I was interested in what the noble Lord, Lord Hunt, said in 2002 when he put forward proposals to involve patients. After they had gone back and forth and around and about and there had been much discussion, he described his position as being,

"as good as it gets".-[Official Report, 13/6/02; col. 419.]

The noble Lord, Lord Harris, said that they now had a system,

"which will act robustly in the interests of the public and patients".-[Official Report, 13/6/02; col. 430.]

I very much welcome the fact that the noble Lord, Lord Harris, recognises that we are trying to improve on things.

Lord Harris of Haringey: It went down before it went up.

Baroness Northover: Then there were the patient forums of 2004. The noble Lord, Lord Warner, said that these were,

"the cornerstone of the arrangements we have put in place to create opportunities for patients and the public to influence health services".-[Official Report, 5/7/04; col. 516.]

In 2007, we moved on to LINks. We have abandoned the commission that was at the centre-the noble Baroness, Lady Cumberlege, referred to this-because it was centralising, bureaucratic and absorbed money that was supposed to be devolved. I have the Health Select Committee report criticising that commission.

As others have said, there is a history of trying to move this forward and trying to ensure that there is better patient and public involvement. I welcome what various noble Lords have said about the improvements in the Bill. We are trying to learn from that history and move it on, although I hear what people say that we possibly have not got it as far as they people wish.

The Government are seeking a fundamental shift. The aim of HealthWatch England is to help orientate the NHS first and foremost around the patient. Healthwatch, at both local and national levels, aims to strengthen the ability of service users and other members of the public to shape and improve health and social care. The role that Healthwatch England will play is crucial. Its aim is to provide leadership, support and advice to local healthwatch organisations and to make them more effective. I looked at the LINks reports and although they are welcome, anyone can see that there is much more that can be done. They do not reflect the whole range of patient voices and the kind of responsiveness you might wish to see in the health service, which is why it is such a challenge.

HealthWatch England will also provide information and advice about the views of patients, the public and local healthwatch to the key players in the NHS

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and social care-the Secretary for State, the NHS Commissioning Board, Monitor, English local authorities and the Care Quality Commission. At present there is no statutory body with either of these roles. Therefore, I am sure we can all agree that this represents a step forward. As noble Lords have said, the HealthWatch England committee will be a committee of the CQC, with a chair who we intend will be a non-executive director of the CQC. Part of this debate has focused on whether this is the appropriate organisational form for HealthWatch England: whether, in this form, it can sufficiently and independently serve the interests of patients and the public and whether it will have the status it needs to achieve this. I have listened to these concerns and I fully agree that this area is too important to get wrong. We are interested in change that works and this Government believe that setting up HealthWatch England within the CQC is the best way to achieve this aim.

I shall explain the reasoning behind this. First, there are key synergies to exploit here. To be effective, HealthWatch England is going to need extensive capabilities which the commission that existed before clearly did not have. It will need clout, which clearly that commission did not have. Being part of the CQC will enable it to have both of these. HealthWatch England will be able to draw on the infrastructure and support from the CQC to deliver its work to a high standard. It will have easy access to the CQC's information sources, which have been referred to, enabling it to develop a deeper understanding of how health and social care organisations are functioning or where there are problems where the views of people may have made a difference. Being part of one of the big national bodies will, we hope, give HealthWatch England a real profile, and one we feel would be hard to generate if it was a new, separate body-and there is the history that we know about. Operating from within the CQC should enable HealthWatch England to punch considerably above its weight.

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