Health and Social Care Bill

Public Bill Committee, 6 February 2001.

Standing Committee E

Clause 45 - Care Trusts where voluntarypartnership arrangements

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I beg to move amendment No. 295, in page 38, line 12, leave out

`is, or is to be, a party'

and insert

`and a local authority are, or are to be, parties.'.

The clause and part III of the Bill establish a useful innovation—a tool for developing integrated care services—and we want to explore how it will be used. Although we welcome the policy intention, a number of organisations have expressed concern about how it will be translated into practice. The Local Government Association has made representations to all hon. Members about its underlying unease, and the amendment attempts to address that unease. Nevertheless, we support the proposition that there should be more joint working and that the flexibilities in the Health Act 1999 should be built upon. A structure of the sort envisaged in the clause is one way to achieve that integration.

The Bill makes it clear that the mechanism to establish the new care trusts voluntarily does not allow for equal partnership between the two agencies. The amendment seeks merely to put local authorities on an equal footing with the NHS bodies with which they will working to put the new independent care trust arrangements in place. It should be a marriage of equals, leading to an entity that is genuinely the product of the two organisations.

I suspect that I will stray too far, Mr. Maxton, if I start to raise other questions about the clause during this debate. I hope that we shall have the opportunity on clause stand part to probe some of the issues not dealt with in amendments. Suffice it to say that I hope that the Government will respond positively to this amendment and to several others. That will help allay the concerns of local authorities and enable them to enter into such arrangements with full commitment, which will allow better services to be provided jointly between health and social services.

Desmond Swayne (Conservative, New Forest West)

I share the concern and hence understand the motive behind the amendment. Indeed, it sets the theme for many of our amendments to this and the next three clauses. The Bill makes no provision for local authorities to take any responsibility for health services, or even to share the responsibility equally with health trusts. In essence, we are talking about the removal of statutory responsibilities from democratically elected local authorities and local government management by what is fundamentally an NHS body. That begs all the questions that were raised in previous sittings about the centralised nature of the NHS, about micro-management and about the lack of accountability and scrutiny. That is all reinforced in the clause, which changes an accountable local authority function to one that is less accountable.

On Second Reading, the Secretary of State said:

``Incidentally, I do not believe that the best way forward for local government and social services is to have a national health service takeover.''—[Official Report, 10 January 2001; Vol. 360, c. 1089.]

We share that view. We believe that the accountability of local authorities is an important principle that should be preserved within care trusts. It should not be diluted in the provision of services to local people.

The Leonard Cheshire organisation states:

``Trusts will effectively be NHS bodies. This signals real dangers. Firstly and most importantly, that the whole culture underpinning the commissioning process for primary/community care services will be medicalised. This poses a direct and significant threat to the understanding and use of the social model of disability by providing agencies.''

I take that last stanza, so far as I understand it, to mean that local authority provision has had the objective of supporting people in their own homes where possible. The emphasis of the NHS may be different, with its concerns for treating ill health.

We share the concerns behind the amendment and are favourable to it.

John Hutton (Labour, Barrow and Furness)

I welcome what the hon. Member for Sutton and Cheam (Mr. Burstow) said in moving the amendment. He expressed his support, and that of the hon. Member for Isle of Wight (Dr. Brand), for the principle behind care trusts. I suppose that one should accept small mercies when they are offered, and it is always nice when the Liberal Democrats support a Government policy. I shall try to deal with some of the problems raised by the hon. Members for Sutton and Cheam and for New Forest, West (Mr. Swayne).

The hon. Member for Sutton and Cheam will recognise that the amendment is modest and minor. He will not be surprised when I tell him that what it tries to do is fully covered by the Bill already. It is clear from clause 45 that care trusts are voluntary arrangements, in the sense that they are entered into by local authorities and the national health service. His suggestion that we need to make the role of the local authority explicit in applying to the Secretary of State for an order establishing a care trust is met already by the clause. The amendment is unnecessary.

The hon. Member for New Forest, West raised two concerns. They went slightly beyond the amendment, but I want to say something about them now. We are aware of many organisations' concerns about the model of care trusts that we propose in the Bill. However, I hope that none of us disagrees about the principle behind the care trust concept. We all know about the problem that we are trying to tackle. In our surgeries, we have all no doubt met constituents who felt that they had to navigate themselves around the care system, from pillar to post, between the NHS, social care and other agencies. For many, that is not a happy experience. In the past three and a half years, we have consistently tried to develop a much closer proximity between health and social care agencies. It is right in principle and practice that the two key and equal partners in the care system should more closely co-operate.

The hon. Gentleman is wrong to say that local authorities will lose responsibility for social services functions under clause 45. They will delegate functions but will retain overall responsibility for them, even in the context of a care trust. There is no question about where the overall social services responsibilities lie.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Will the Minister shed further light on the Government's intentions about where responsibility will lie when a care trust has been established? As the Minister knows, local authorities have discretionary powers in respect of charging policies for home care services and for other services that in future may be delivered by care trusts. Where will the responsibility lie for determining the charging policy and the eligibility criteria on which it is based?

John Hutton (Labour, Barrow and Furness)

I am genuinely surprised that the hon. Gentleman asked that question because we have answered it on several occasions. We have made it clear that the responsibility for determining charges for social services will rest with the local authority. There is no question of charging for NHS services that are delivered by a care trust. They will remain free at the point of use, and that will remain the case as long as the Government are in office.

The hon. Member for New Forest, West raised another concern, which has been doing the rounds. He quoted the Leonard Cheshire organisation, for which I have a great deal of admiration and respect. It does an outstanding job for many disabled people. However, there is a misunderstanding here about the nature of care trusts. They will not somehow medicalise social care. It is clear from what we have said and how we envisage care trusts being established that there will be a distinctive role for social care services delivered under the umbrella of a care trust. We are not proposing some ideological shift in values and culture in relation to the delivery of social care services. We just want them delivered in a more coherent way, positioned more closely alongside the NHS, as equal partners in the care system. It is important that Committee members understand that we are not proposing that the establishment of care trusts will lead to the end of social services and the current concept of social care. That would be ridiculous.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I apologise to the Minister for interrupting his flow. He is making an important point, which addresses a concern that is shared by many outside the House about how care trusts will work in practice and his assurances are most helpful. Has he considered the recent research evidence on the experience of integration—albeit on a different structure—in Northern Ireland, which revealed concerns that placing social care in the context of a health body has lead to a domination of the medical model over the social model? The LGA cited that evidence. Has the Minister had a chance to consider it? If he has, does he accept it, and if so, what guidance will be made available to ensure that the pitfalls of the system in Northern Ireland are avoided in the United Kingdom?

John Hutton (Labour, Barrow and Furness)

I have to be honest with the Committee and say that I have not seen that research, but I will dig it out. It is probably on somebody's shelf at the Department of Health and perhaps later today I will look at the executive summary.

Many admire the system of health and social care delivery in Northern Ireland, not least the Select Committee on Health, which looked favourably on the system. Perhaps the hon. Member for Isle of Wight, who is a leading member of that Committee, will advise us to the contrary. The Select Committee on Health did not think that bringing health and social services closer together would necessarily lead to the hon. Gentleman's proposition, that there would inevitably be a drift toward the medicalisation—whatever that is—of social care services. That is absolutely not what we have in mind.

There is a distinctive and clear role for social care services. That role will continue under the umbrella of a care trust if, under clause 45, that is what local partners decide is the most appropriate vehicle under.

I will deal fully with some of the other wider concerns about care trusts later in our proceedings. I understand the spirit behind amendment No.295, but the concerns raised by the hon. Member for Sutton and Cheam are unfounded in relation to clause 45, which fully recognises that the arrangements will be voluntary. Local partners will apply to the Secretary of State for designation as a care trust. The amendment is legally unnecessary and would not help the drafting of the clause.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I am sure that the LGA and others will have listened carefully to the Minister. Perhaps we will return to the matter if others outside the House are not persuaded by what he has said. On the basis of the assurances that he has given to us today, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Desmond Swayne (Conservative, New Forest West)

I beg to move amendment No. 310, in page 38, line 21, leave out from `made' to end and insert—

`(a) after consultation with all statutory patient representative bodies in existence at the time the application is made; and

(b) where a report on the consultation undertaken in accordance with subsection (a) above accompanies the application and the designated authority is satisfied that the consulted bodies concur with the application; and

(c) where the application is made jointly by every prescribed body.'.

John Maxton (Labour, Glasgow Cathcart)

With this it will be convenient to take amendment No. 291, in page 38, line 21, at end insert—

`which application shall include details of the outcome of the consultation process regarding the application with those organisations representing health and social services users and with those who are users of either health or social services in that area, and with representatives of the local community'.

Desmond Swayne (Conservative, New Forest West)

Amendment No. 310 is about consultation, which we consider to be of considerable importance. The amendment requires that the statutory patient representative body be consulted when an application for formation of a care trust is made. Where a report is produced consequent upon that consultation, it should partly determine whether the trust is formed. We have received many representations, principally from the Royal College of Nursing, Age Concern and Help the Aged. Those representations all concerned the need for consultation, which is why we attach such importance to the amendment.

The formation of a care trust is a major undertaking. It will involve the shifting of statutory responsibilities, which will imply a major shift of resources, staff and information systems. That is bound to have a significant start-up cost in financial and organisational terms. Inevitably, it will cause disruption. There must be clear evidence that the process will result in a significant improvement in the quality of service provided.

It is well known that it will be horses for courses as far as care trusts are concerned. Some local authorities will not want to enter into such arrangements, but others will, to the clear benefit of those whom they serve. The amendment seeks to ensure that the decision to do so should be based on evidence. All innovation should be based on evidence. I understand that that is the principle that underpins the National Institute for Clinical Excellence. It is also the principle that will underpin the social care institute for excellence.

What evidence will be required to prove that a proposed care trust will be more effective in providing social care than the local authority? We look to consultation as the main source of such evidence. That is why we consider it to be important. It is through consultation with those who will be served by the arrangement that we seek the justification for proceeding with it.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The group of amendments includes amendment No. 291, which is in my name and that of my hon. Friend the Member for Isle of Wight. We, too, want to pick up on a matter on which we have received representations, relating to the nature of the process of consultation that will be undertaken in respect of the establishment of care trusts. A briefing note was helpfully circulated in advance to the Committee, for which I am grateful to the Minister and his departmental team, because it fleshes out the proposals that are set out in the explanatory notes. It refers to a prescribed period of meaningful consultation, and offers us the prospect of guidance on the details of the future arrangements. I hope that the Minister will be able to tell the Committee what issues he and his Department would expect to be covered in such a consultation. There are several matters that need to be aired locally, with respect to consultation.

Peter Brand (Liberal Democrat, Isle of Wight)

Does my hon. Friend agree that if consultation produced significant or even universal opposition to such mergers the Government should pay attention—unlike previous Governments who, for instance, established national health service trusts according to a pattern set down by the Secretary of State rather than by the communities concerned, and in complete disregard of consultations?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Flaws of that kind have occurred in past consultation arrangements. However, the briefing notes make it clear that applications

``will need to provide evidence of . . . local support for the proposals''.

That will be an important consideration for the Minister concerned to take into account. I hope that the question of coterminosity of the organisations coming together to form care trusts will feature in consultation. From the patients' perspective, the boundaries between agencies are often a major obstacle to the provision the seamless service that the Minister described with reference to an earlier amendment

A good example exists in my area of the way in which lack of coterminosity could hinder the intended operation of the clause. A primary care trust covers about 20 per cent. of the population of my borough, while a primary care group covers the rest. The Nelson primary care trust might perhaps apply to become a care trust in conjunction with the London borough of Merton, the bulk of whose population it serves. What would happen to a resident of my local authority area who received GP services from within the PCT, and therefore the new care trust, but who was also receiving care packages provided by the local authority social services department of the London borough of Sutton, not the London borough of Merton? How will that state of affairs be unpacked? How could the service be provided in a seamless way?

I should have thought that that issue would need to be explored during local consultation processes. I hope that the Minister can shed light on the question today, to inform such processes in the future.

Another issue about which many people will want to be informed in the process of local consultation on care trusts is the Government's precise arrangements for those trusts. Will there be direct representation on trust boards for stakeholders such as older people? Will councillors be included? More details of the Government's thinking would be helpful.

During consultations representations are likely to be made about the expertise that social services departments have developed in holistic assessments. Those focus on the needs of the user of the service, or patient, alongside the needs of carers. I hope that the Minister can comment on that, not least because he and I spent some time last year in Standing Committee considering the Carers and Disabled Children Act 2000. Arrangements under that Act are designed to ensure equality of treatment between carers and users, through the assessment arrangements. How will that approach be affected by the establishment of care trusts?

I particularly want to hear from the Minister about coterminosity, which is lacking in many places and will no doubt frequently be a matter for consultation. I hope that one of the amendments will be included in the Bill.

George Young (Conservative, North West Hampshire)

I welcome the co-pilot to the controls after a long wait to get to part III of the Bill.

I want to argue for the consultation process to include certain key matters, some of which were touched on by the hon. Member for Sutton and Cheam and my hon. Friend the Member for New Forest, West. Clause 45 has enormous implications for local government. Social services is one of the most important local authority functions—the most important function after education—and the clause proposes the voluntary transfer of a key responsibility of local authority to a body that is, in effect and in law, a national health service body. When consultation is entered into at local level, I hope that people will ask whether taking such a radical step is the right way forward.

Many people believe in local government as an important element of a decentralised society and as a counterbalancing democratic body to central Government. If one takes away services from local government one begins to alter the balance of the constitution. I see that as a step away from a decentralised society towards a more centralised one and from a democratic society to a slightly less democratic one. One is potentially removing a chunk of important services from a body that is democratically accountable to local people to one that comes under the control of the Secretary of State.

Some 10 years ago, the Conservative Government looked into setting up an alternative primary care trust as an interface between social services and the health service. We decided not to go down that path, but to give responsibility to local government, partly because we did not want to set up two extra interfaces—one between the care trust and the rest of local government and one between the care trust and the rest of the NHS. When local people are consulted, I hope that a number of questions will be asked: first, about accountability. At the moment if something goes wrong in social services people know who to complain to—their local councillor. There is a clear chain of accountability. If social services are provided by a care trust it is less clear to me what the local councillor would be able to do about a complaint. He would simply say, ``I'm very sorry, but these arrangements no longer come under the county council or district council. They are now in a care trust with its own budget and it is run by a body—yes, we have one or two representatives on it but it is an NHS body.'' I hope therefore that issues of accountability will be raised in consultation.

Lorna Fitzsimons (Labour, Rochdale)

Does not the right hon. Gentleman acknowledge that currently under the NHS commissioning is allocated between many different bodies that are accountable in different ways to different boards, such as health trusts, health authorities and now the PCTs? There is no problem, so why should there be a problem with the new model, especially given that the elections and accountability in local government are rather more extensive than they are in community health councils?

George Young (Conservative, North West Hampshire)

If the hon. Lady follows the example that I am about to give, she may realise the issue. At the moment if something goes wrong with care in the community the responsibility rests clearly with social services. People know to whom they should complain. Someone with a grievance goes to his county councillor—or his local councillor if it is a unitary authority—and says, ``The assessment has not taken place. This elderly constituent was entitled to an assessment under care in the community. You have not done it and I want it done.'' That is a matter for the director of social services and the chairman of the social services committee.

Under the primary care trust system, the local authority transfers into a primary care trust its responsibilities for care in the community. If something goes wrong then and there is a complaint to the local councillor, the local councillor can no longer say, ``I will talk to the chairman of the social services committee and the director of social services and we will have the assessment done. We will make the required adaptation to the downstairs accommodation so that that individual can continue to live there.'' Instead, the person bringing the complaint will be told that responsibility has gone to a primary care trust and the local councillor or the chairman of the social services committee no longer has a direct influence on the outcome: it is a national health service body and the local councillor is just one voice. For that reason it is important that issues of accountability are raised during the consultation exercise. It is not clear cut. The Government have not made at all clear the governance arrangements and chain of accountability under the primary care trust.

Another issue that will need to be dealt with in the consultation process is the culture in social services, which is quite different from that in the NHS. For example, social services departments have a charging regime, which has already been touched on by the hon. Member for Sutton and Cheam, while the NHS is free at the point of use. When two cultures are merged—one that charges for services on the basis of means testing and the other that is free at the point of use—important issues will inevitably arise. Which services provided by the primary care trust will be free and which will incur charges? The service is supposed to be seamless and the patient—or customer—is not meant to know at what point in the chain the services are provided. People want an answer to a key question. How will they know that services provided by the primary care trust will not incur charges?

The Minister attempted to provide an answer, but if it is a seamless service—and that is the object of the primary care trust—there must be a point towards the social services regime, at which someone says, ``If that service had been provided in the old days, we would have charged for it, so why not charge for it now?'' So the Minister has glossed over some important issues.

There are also key issues about resources. Social services receive money through the revenue support grant and the local rates. The county council or the district council debate education and social services, and money is voted to social services, which goes to the care trust. The primary care trust receives its resources straight from the Department via the various tiers in the health service. If something were to go wrong mid year and the primary care trust were heading for an overspend, it would be difficult for the local authority to top it up. It may be easier for the NHS to do so. Those issues have not been considered.

Local authority social services departments are well-established, robust bodies. The primary care trusts, on which we propose to put all this responsibility, are hardly up and running. Most parts of the country have a primary care group. The Government plan to impose on untried and untested bodies major responsibilities that are currently well-discharged by local authorities. That is a leap in the dark, and many questions remain unanswered. I hope that at some point—either in this debate or on clause stand part—the Minister will deal with some of the unresolved issues brought up by this radical change in policy.

John Hutton (Labour, Barrow and Furness)

We started with a debate about consultation, but we have covered just about everything that is likely to be raised about the subject of a care trust--perfectly properly, of course. I shall deal first of with the points that right hon. and hon. Members have made about the importance of consultation. Consultation will be fundamental. In the NHS, when new bodies are brought into existence or services are reconfigured, there is a well-established pattern of consultation, and we intend that to be the case for care trusts.

I accept some of the points made by the right hon. Member for North-West Hampshire (Sir G. Young) in his helpful contribution to the debate. Care trusts are a big step forward, which is clear from the Bill and the NHS plan. We are attempting to do something that the previous Government considered, but did not do, for a variety of reasons that I am sure he will shine further light on.

Philip Hammond (Conservative, Runnymede and Weybridge)

And rejected.

John Hutton (Labour, Barrow and Furness)

The hon. Member for Runnymede and Weybridge (Mr. Hammond) says that the previous Government rejected the idea, which is true. We decided to take the step because we wanted to pursue the agenda of partnership working as outlined in the NHS plan. The issue of charging, although it is important, should not frustrate closer partnership arrangements between the NHS and social services. I do not subscribe to his fatalistic view that closer working between the NHS and social care will be frustrated if the social services element is charged for—it is important to bear in mind the fact that not every local authority charges for domiciliary services. That is not the experience in Northern Ireland.

Lorna Fitzsimons (Labour, Rochdale)

Does my hon. Friend acknowledge that many localities—and I cite Rochdale—have received awards for the seamless service provided currently by social services and the different wings of the NHS when ensuring appropriate after care for our constituents following a stay in hospital?

John Hutton (Labour, Barrow and Furness)

I agree with my hon. Friend. It would not be hard to find similar examples in other parts of the country. We must approach the establishment of care trusts in a slightly different way. I accept that there may be difficulties and that problems will need to be overcome. However, if we retreat into the second line and say that it is too difficult to explore closer partnership working because the issue of charging is so complicated that it rules out any prospect of those two important organisations working more closely together, we will let down those whom we are here to serve. I believe that there is a way around those problems.

The right hon. Member for North-West Hampshire said that clause 45 would impose measures on local organisations, but he must be aware that we cannot do that under clause 45. The clause deals with the voluntary establishment of care trusts. By definition, if one of the parties chooses not to establish a care trust, then a trust cannot be established under clause 45. We cannot impose anything on local authorities under clause 45; we want genuine partnership if the parties decide to go down that route.

Philip Hammond (Conservative, Runnymede and Weybridge)

We shall come to clause 46 shortly, but it provides a reserve power for the Secretary of State to compel such arrangements to be put in place. Local authorities and health authorities will therefore be under strong pressure to use the clause 45 route. It is more than a purely voluntary approach.

John Hutton (Labour, Barrow and Furness)

Of course we will encourage the establishment of care trusts; the concept has a great deal to commend it. It would be a rum state of affairs for a Government to propose a way forward and then to be hesitant about endorsing it or encouraging people to use it. That would be bizarre. It will, of course, be a mixed approach, but we are confident that the flexibility arrangements under section 31 of the Health Act 1999 will deliver improved co-operation and partnership between health authorities, trusts and local authorities. That nut can be cracked in a variety of ways.

The Opposition are entitled to be cynical; some would say that that is their role. However, the right hon. Member for North-West Hampshire has been in my shoes and worn my jacket—he is welcome to it!—and he should know that it is the responsibility of Ministers to deal with the problem of getting social and health care services to work more closely in partnership.

The right hon. Gentleman spoke also about centralisation and the role of local government. He said that care trusts represent centralisation. I remind him that clause 45 is about voluntary agreements between local authorities and the local NHS, and establishing closer working relationships. His argument is not credible. These are partnership arrangements under which a voluntary agreement is entered into by both parties. The Government reject the Opposition's criticism.

Another factor is the wider role of local government. The Opposition seem to regard health trusts as a diminution of local government, and they question local accountability for social services. I reject that view comprehensively. We should celebrate the fact that the Bill creates significant new opportunities for local government to influence the future direction of the national health service. Liberal Democrat Members are always banging on about the so-called democratic deficit in the NHS; they should consider the proposals as a welcome step forward. We shall come to governance arrangements later, but whatever we decide about governance, the care trust model offers local government an important new role in the commissioning of health care services.

The right hon. Gentleman suggests that clause 45 will denude local authorities of that wider responsibility and of the ability to influence events locally. I have great respect for him, but he is wrong. That view takes no account of the wider role that we envisage for local government through the scrutiny committees. Moreover, it does not recognise that when local authority members join the boards under the governance arrangements for care trusts, they will be able to discuss the wider commissioning of health care services in their locality. That will not just be in the context of social services, because board members of a care trust will be more than local authority representatives concerned only with social services delivery, as the board will have commissioning responsibility across the range. That is a genuine enhancement rather than a stripping out of responsibilities for local councillors.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The Minister repeatedly said at the start of his response to the debate that the Bill made it clear that the arrangements were voluntary. However, the briefing document describes the provisions as another stage in the evolution of the arrangements for joint working. Evolution implies that the current situation and that established by the arrangements will change.

Will the Minister give us more information as to how he envisages the proposal on care trusts will proceed? I am not asking how many care trusts there will be, and I am sure that he will not want to set targets. Is the proposal a central part of what the Government want to happen, or is it merely something that can happen?

John Hutton (Labour, Barrow and Furness)

With great respect to the hon. Gentleman, I am not sure that I can answer the question in that way. We have told local government and the NHS that they have two options and can decide which they want to develop. They may want to go down the clause 45 route of voluntary care trusts, or they may decide to develop closer arrangements under section 31 of the Health Act 1999.

I made it clear earlier that we believed that the care trust option had a great deal to commend it. It has many attractions, as it will provide for the first time a coherent organisational structure in which the closer partnership arrangements can be delivered. In that sense, it represents evolution from the Health Act flexibilities, as it takes them a step further.

I am an evolutionist. I think that we all are, or we would not have ended up where we are. I do not think that the hon. Gentleman, I or anyone else in the Committee has a precise blueprint for the position of the NHS in 10 or 15 years.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I am grateful to the Minister for clarifying his position on the creation of care trusts, but will he make one final comment? Does he rule out the possibility, as an incentive to the establishment of care trusts, of using specific grants with the condition that they are available only to local authorities that enter into care trusts?

John Hutton (Labour, Barrow and Furness)

It is clear that any conditions attached to the use of special grants have to be consistent with primary legislation. What the hon. Gentleman suggests could not happen. We cannot use special grant resources outwith the framework of law agreed by the House and the Committee.

We started the debate on the issue of consultation, and have now come full circle. I tried to make it clear that, as with existing NHS organisations, we will set out the national application and approval process for care trusts in guidance. Subsections (7) and (8) will clearly regulate the process whereby an application to establish a care trust will be made at local level to the Secretary of State under clause 45. We intend that the regulations will clearly set out the procedure for the consultation exercise. Therefore, there will be a proper consultation process for the establishment of care trusts, as is essential. Similar rules apply to every other NHS body, and there is no reason to disapply them to care trusts.

I end with a homily about the concept of care trusts, about which many hon. Members have raised concerns. The right hon. Member for North-West Hampshire appeared to see care trusts as a takeover of local authorities by the NHS, but that is not so. This is not a change for change's sake, either. It is not an organisational game of musical chairs to involve local authorities in the NHS. We are not making fundamental changes in the pattern of delivering services simply for the sake of it. We have considered the issues carefully. The NHS plan sets out a strong argument for developing the Health Act flexibilities and taking them a stage further. That is what we meant by the reference to evolution.

If we sort out the problems, establish the case for care trusts at a local level, establish the credibility of the organisation, evidenced by strong local support, deal with the issues of governance, which I am sure we shall, and resolve the issues of charging--the right hon. Gentleman made rather too much of that in his objections to the principles of care trusts--we can take things to another level and bring health and social services much closer together. That is what our constituents want. They are sometimes baffled and confused by the arbitrary lines that we have created through decisions taken by this House in previous Parliaments, which have left us with organisational divisions between health and social care services. We should never lose sight of the fact that we put those lines in place, so we can take them out. It is as simple as that.

Desmond Swayne (Conservative, New Forest West)

Despite what the Minister has said, my right hon. Friend the Member for North-West Hampshire did the Committee a service by reminding us of the history of these matters and drawing our attention to the problems. Notwithstanding those problems, as I sought to make clear on the first group of amendments, we want to give care trusts a fair wind. However, we want there to be proper evaluation before they are established, which is why we attach such great importance to the question of consultation.

The Minister chided my right hon. Friend for drawing attention the problems that have to be faced, including the issue of charging. However, he himself said that there has to be a way round those problems. He is right. Part of the solution lies in the process of consultation that we have raised in the amendments. The Minister made clear the importance that he attaches to consultation, and he explained how the regulations will be drawn up in that respect. Therefore, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

John Hutton (Labour, Barrow and Furness)

I beg to move amendment No. 318, in page 38, line 32, leave out subsection (4) and insert—

`(4) Where a body is designated as a Care Trust under this section—

(a) its designation may be revoked by the relevant authority at any time—

(i) of the authority's own motion, and

(ii) after such consultation as the authority considers appropriate;

(b) if an application for the revocation of its designation is made to the relevant authority by one or more of the parties to the LA delegation arrangements, its designation shall be revoked by the relevant authority at the earliest time at which the authority considers it practicable to do so, having regard, in particular, to any steps that need to be taken in relation to those arrangements in connection with the revocation.'.

John Maxton (Labour, Glasgow Cathcart)

With this it will be convenient to take the following amendments: No. 311, in line 36, leave out

`of the authority's own motion'

and insert

`at the instigation of the authority'.

No. 258, in line 37, at end insert—

`(4A) If following receipt of an application to revoke a designation made by a local authority which is party to the LA delegation arrangements, the relevant authority—

(a) refuses the application, and the local authority has within two years of the date of its application renewed the application; or

(b) otherwise fails to revoke the designation,

the relevant authority shall on the expiry of two years from the date of the original application revoke the designation.'.

John Hutton (Labour, Barrow and Furness)

In tabling the amendment, we have tried to respond to the perfectly reasonable concerns that have been expressed by local government interests about the nature and duration of voluntary care trusts under clause 45. It was never our intention that entering into a voluntary arrangement would be a once and for ever act of agreement between local authorities and the NHS. It was always intended that, in the absence of such agreement, the arrangements surrounding a care trust could be brought to an end sensibly and carefully so as not to compromise the integrity or ability of local health and social care services to deliver first class services for local people. The purpose of the amendment is to clarify the situation and to make our intentions crystal clear.

If any party wishes to end an arrangement, that will happen at the earliest time practicable. That will allow some local flexibility to ensure that local arrangements are appropriately sorted out before the care trust arrangements are terminated. It is not intended to encourage local partners to switch in and out of arrangements, depending on how the mood takes them. Care trusts are not a quick fix, but require a level of commitment from all the parties.

Given the other amendments that have been tabled in the group, I hope that right hon. and hon. Members who have expressed concerns about that aspect of the Bill will feel that we have tried to meet them more than half way. In doing so, we have emphasised the fact that the arrangements are voluntary. If there is no longer a voluntary agreement between the parties for a care trust to exist, we need to take that into account, and we have done so.

Right hon. and hon. Members may also want to know why the amendment retains the power of the Secretary of State, by his own motion, to dissolve a voluntary arrangement. I am told that the hon. Member for New Forest, West may want to raise the matter. Essentially, the power simply allows us to adopt a consistent approach with respect to care trusts and other NHS bodies. I hope that all right hon. and hon. Members would accept that the Secretary of State needs a reserve power to ensure that health care services are provided effectively and appropriately. In the amendment, we are not proposing anything other than what is applicable to every other NHS body.

Desmond Swayne (Conservative, New Forest West)

The Minister raises the intriguing question of who told him what the hon. Member for New Forest, West may want to raise. I am not aware of having had any conversations about the matter.

Amendment No. 311 is rendered redundant by the Government's amendment, although the latter retains the curious form of words about ``the authority's''—meaning the Secretary of State's—``own motion''. However, we shall not dwell on that. My right hon. Friend the Member for North-West Hampshire should take as a compliment the similarity between the wording of his amendment No. 258 and that of paragraph (b) of the Government's new subsection (4), in amendment No. 318. The Minister explained his intention to meet us half way.

On the assumption that we want to encourage local authorities to enter into care trust arrangements, the key point to be made about the amendments is that authorities are likely to be singularly reluctant to do so without an escape route. It is crucial to the success of the enterprise that the availability of an escape route should be explicit in the Bill.

Amendment agreed to.

Desmond Swayne (Conservative, New Forest West)

I beg to move amendment No. 312, in page 39, line 21, at end insert—

`( ) providing for the appointment of representatives of local authorities to Care Trusts.'.

John Maxton (Labour, Glasgow Cathcart)

With this it will be convenient to take the following amendments: No. 313, in page 39, line 24, at end insert—

`( ) for securing the effective delivery of services relating to the functions of the trust and in particular the health-related functions of the local authority through proper integration of the functions of the prescribed bodies.'.

No. 261, in page 39, line 28, at end insert—

`(e) requiring that the governance arrangements, including representation of local authorities on the Care Trust, and the structure and arrangements proposed for delivering services relating to all the functions of the trust and in particular the prescribed health related functions of the local authority will ensure the proper integration of the functions of the prescribed bodies.'.

Desmond Swayne (Conservative, New Forest West)

The intention behind amendments Nos. 312 and 313, which provide for further categories of regulations to be made, is fundamentally to strengthen the purpose for which care trusts are to be set up. A strong case can be made for local authority co-operation with the NHS in new arrangements to bring about improved services. However, the new bodies must reflect the strengths of the local government organisations.

The Minister has attempted to reassure us, but he is aware of concern that what is proposed will be not so much a merger as a hostile takeover by the NHS. Reassurance is therefore needed, and we want it to be expressed in the Bill by provisions such as our amendments. Trusts must reflect the views of locally accountable representatives, together with the experience gained by professionals in many years of providing social services in a local authority setting. Local authority representation should be strengthened by the Bill, and it should be made clear that those authorities' strengths will continue profoundly to influence the functioning of trusts.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

This group of amendments deals with some important issues relating to the Government's arrangements for care trusts. In the earlier debate on care trusts, I asked the Minister whether the Government intended to ensure, either through the Bill or through regulations, that patient groups, especially those for the elderly, were represented on the boards of care trusts. In addition, I hoped that the Minister would say more about the differences between care trust boards and primary care trust boards. If, as we have been assured, the intention is for the health service and local government to have equal standing on the new bodies, that must be reflected in the executive and non-executive governance arrangements of the new trusts.

Unison makes useful points about the current configuration of the governance of PCTs. When we had debates on the establishment of PCTs in 1998-99, the Government made a welcome commitment to having a lay majority on such boards. Will the Minister establish whether there will be equality between health service and local government interests on the boards? Will there be clear arrangements to provide for the involvement of the voluntary sector and other non-governmental organisations on the boards? If so, will the arrangements for appointment be the same as those envisaged for patients forums and other such bodies.

In the earlier exchanges, I asked the Minister about arrangements for incentivising localities to consider care trusts, and he said that it would not be possible for specific grants to have conditions that were outwith the legislative framework of the Bill. However, the briefing note that was circulated to Committee members states that the Government are considering encouraging the formation of care trusts through ``pump-priming.'' Presumably that means pump-priming with cash. That sounds like a clear mechanism to incentivise. Will the Minister say what he has in mind in terms of pump-priming? During the last Parliament, when arrangements were made for schools to consider opting out from their local authorities, pump-priming was used to incentivise that shift.

Philip Hammond (Conservative, Runnymede and Weybridge)

As the hon. Gentleman is drawing a comparison, perhaps he will remind the Committee whether Labour Members took a favourable view of that at the time?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I am sure that the Minister will explain what the Labour party felt about the measure at the time. I merely draw a parallel between the two mechanisms, hoping that the Minister will clarify the difference between the mechanism that was used to promote opting out by schools and the mechanism that is intended to promote the transfer or the merger of health and social care through care trusts. I look forward to his response.

George Young (Conservative, North West Hampshire)

I would like to put to the Minister some points on governance that arise from amendment No. 312. Some helpful notes on governance were circulated yesterday. Paragraph 19 of those notes states:

``The Government is considering how all board members should be nominated and appointed, taking account of the role of the new independent appointments commission.''

I assume that the new independent appointments commission could not veto a local authority's nomination for representatives to a care trust, but that its role would apply only to other representatives. If the partnership is to be one of equals, as the Minister implied, the local authority ought to be able to nominate whom it wants.

Will the Minister clarify something fundamental to our debate on the composition of the new care trusts? Paragraph 7.9 of the NHS plan does not make it clear whether the trusts will be new bodies or primary care trusts with social services bolted on. It talks in terms of establishing

``new single multi-purpose legal bodies to commission and be responsible for all local health and social care'',

but goes on to state:

``This will require changes to the governance arrangements for primary care trusts to ensure representation of health and social care partners.''

It is not clear whether we shall simply tack social services on to primary care trusts or set up a new body to do part, but not all, of what the PCTs do and a little bit of what local government does.

I would like the Minister to comment on governance arrangements. Does he envisage a board on which councillors and the Secretary of State's nominees would sit, with an executive body underneath that? Will he talk about the balance on each, and how the system might work in practice? How often will the board—the top tier—meet? Will any of its members also be on the executive board? We need a slightly clearer vision than we have at present as to the governance of the new trusts.

John Hutton (Labour, Barrow and Furness)

The amendments seek to provide for the appointment of local authority representatives to the boards of care trusts, and to ensure appropriate integration of local authority delegated functions in care trusts. Opposition Members should brace themselves, as they probably will not like what I am about to say. Those matters are already covered in subsections (7) and (8). I fully understand the concerns, but our regulation-making powers will deal with matters as they need to when voluntary care trusts are established under the clause.

The matters will be dealt with in secondary legislation. There will be guidance as to the composition of care trust governance arrangements, which will need to be flexible to reflect the different functions of each care trust. I hope that Opposition Members will support the idea of flexibility in the arrangements. It would be a mistake to adopt a one-size fits-all straitjacket about governance arrangements for the new care trusts.

I say to the right hon. Gentleman and the hon. Member for New Forest, West that there must be fair and balanced representations on the boards of the care trusts, to take into account and reflect the local authority's input into the services that the care trust will deliver.

Philip Hammond (Conservative, Runnymede and Weybridge)

The Minister makes the important point that the one-size-fits-all approach tends not to work. A moment or two earlier, he told my right hon. Friend the Member for North-West Hampshire that the matters would not be dealt with in a transparent way that we could scrutinise, but under the secondary legislation to be made under subsections (7) and (8). Does the Minister therefore envisage that regulations might prescribe different regimes for different care trusts? Is he saying that there would be separate orders to establish different regimes for individual care trusts, or will a set of regulations apply across the board?

John Hutton (Labour, Barrow and Furness)

There will clearly have to be an order to bring a care trust into existence, and it will have to specify the governance arrangements for that specific care trust. Such issues are still being discussed, as the hon. Gentleman will know. We have all had briefings from the LGA and others on them. We are actively trying to find a sensible set of solutions to the issues of the governance arrangements, about which I know that there is some sensitivity. We are asking local authorities to take an important step forward in delivering integrated care services through the establishment of the care trusts. Naturally, we do not want any of the arrangements that we will eventually propose to act as a deterrent.

The right hon. Member for North-West Hampshire and the hon. Member for New Forest, West were concerned that some aspects of the Bill would discourage the establishment of voluntary care trusts under clause 45. I hope that he will take it as read that the Government do not wish the Bill, or any part of it, to act as a deterrent to the establishment of care trusts, and we will try to find a fair and balanced way to ensure effective local authority representation on the boards of the care trusts.

The right hon. Gentleman asked whether the care trusts would be new bodies, and, of course, they would. They will be designated as care trusts and will have the wider role and function designated by that status, including social services functions.

George Young (Conservative, North West Hampshire)

Would those bodies be additional to the primary care trusts or would there be additional responsibilities for the existing primary care trusts? Are we looking at two NHS bodies or one?

John Hutton (Labour, Barrow and Furness)

We are looking at one body. We are not in favour of fragmentation. If the local partners want it, the primary care trust, under the arrangements in clause 45, can enter into a care trust with the local authority, and a care trust will be established. The primary care trust will be the building block and the foundation into which the local authority social services—or whatever body—will be incorporated. That is a sensible way of proceeding and it avoids the fragmentation that would arise if we took a different view.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I am grateful for that helpful clarification of how the new entities will come into existence. Can the Minister develop further how the issue of coterminosity will be addressed? At present, PCTs can overlap with social services authority areas. A PCT could provide services through a care trust using a local authority that did not cover the same local authority area. In that case, how would the Minister envisage a person navigating his or her way through the care system if he or she lived in one local authority area but received social services from another as a result of the care trust arrangements?

John Hutton (Labour, Barrow and Furness)

The hon. Gentleman will find an answer to his predicament in subsection (3) of clause 45.

These issues before us have been wide-ranging. Hon. and right hon. Members have raised several concerns about important issues.

George Young (Conservative, North West Hampshire)

It would be helpful if the Minister could amplify the point further. That was the first time that I had heard a clear and explicit statement that a care trust is a primary care trust with additional functions added on. If that is the case, we should now address important governance arrangements. If this is to be a partnership of equals between the NHS and the local authority, and there is an established primary care trust—an NHS body—with a lot of people involved in it, how can there be equal representation of the local authority when a relatively small amount of money is being given to an existing body that already has many other responsibilities?

John Hutton (Labour, Barrow and Furness)

Let me correct the right hon. Gentleman. If he has read clause 45 carefully, as I know that he has, he will know that we are not talking just about primary care trusts. There is also the possibility of NHS trusts becoming the foundation from which the new care trusts will be constructed. The details of the Government's arrangements are still subject to consultation between the LGA and other interested parties. I know that the right hon. Gentleman wants me to announce today the exact proportion of local government representation and NHS representation on the board of each trust. I am not in a position to do that, as he well knows. I repeat, for his benefit and that of the Committee, that we want those arrangements to represent a fair and sensible balance between the interests that local government naturally have in these issues and the provision of NHS services by the care trusts. That will be the subject of ongoing discussions. I am sure that we will come to a sensible conclusion and that those arrangements will be reflected in the regulations and guidance.

Lorna Fitzsimons (Labour, Rochdale)

Does my hon. Friend accept that some of us are slightly surprised by some of the lines of argument that we have heard? In my constituency, for many years, people involved in local government and the provision of social services and social care have argued for just this type of arrangement? They do not see it as a hostile takeover but as a seamless continuum of the way that they have operated with professionals in the area for many years.

Philip Hammond (Conservative, Runnymede and Weybridge)

The hon. Lady has coterminosity.

John Hutton (Labour, Barrow and Furness)

I agree with my hon. F. I hear the hon. Member for Runnymede and Weybridge chuntering on about coterminosity. He is a very good chunterer. Issues such as coterminosity are boundary issues, and I accept that they are complex. That is inevitable given the nature of the organisations with which we are dealing. We have tried to deal specifically with the point raised by the hon. Member for Sutton and Cheam about what will happen if the NHS responsibilities of the primary care trust are narrower than those of the local authority. It is clear from subsection (3) that that will not impede the delivery of social care services to a wider population than is currently served by the primary care trusts. That is a sensible solution.

Philip Hammond (Conservative, Runnymede and Weybridge)

I should like to explore further the line of argument that my right hon. Friend the Member for North-West Hampshire developed. Does the Minister foresee the possibility within these governance arrangements that local authority representatives might be involved at a different level, perhaps in a committee of the trust that will deal with the social services part of the function being discharged by the care trust, rather than at the main board level of the trust? After all, the trust will have much wider functions than the discharge of social care functions for which it will be responsible.

John Hutton (Labour, Barrow and Furness)

The right hon. Member for North-West Hampshire raised that point earlier, and I can say that we envisage that there will be an executive committee structure for the care trust and the supervisory board. We have made that clear on previous occasions. The exact composition of the executive committee will have to be discussed with the various interests that are speaking to us about such matters and we have made no final decisions.

Let me repeat for the benefit of the Committee that there are difficulties. The right hon. Gentleman was right to say that concerns have been expressed by local government, and we are trying to respond to those concerns sensibly. It is all well and good to look at the problems, but there are solutions, too. If our objective is to find a closer way to integrate health and social care services, which is the right thing to do, I believe that those solutions are not beyond us.

There is a sensible way forward. Like my hon. Friend the Member for Rochdale (Lorna Fitzsimons), I detect a willingness on the part of local government to look carefully at the benefits that a care trust model will offer. For our part, we will make sure that the care trust option remains attractive, and we will look carefully at the governance arrangements. As we have done already today, we want to make sure that nothing in the Bill can act as a deterrent to local authorities and the NHS taking important steps forward.

The hon. Member for Sutton and Cheam asked a number of times about the resourcing aspects, which I tried to deal with earlier. We shall have to consider carefully how to incentivise and encourage the development of care trusts. The hon. Gentleman will be aware that, as part of the NHS plan, we announced details of a new social services performance fund in an effort to improve enhancements and services for older people. That is a top priority for the Government: we want better health and social care services for older people, and we rehearsed some of the arguments for that last night. We will look seriously at how we can use the performance funds to make services better for older people. However, that has to be done in a way that is consistent with primary legislation and does not impose obligations or requirements on local authorities that are not encompassed by the legislation that the House approves.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The Minister's last comments were helpful and will no doubt give rise to further questions and examination in due course. I am still puzzled about the issue of reconfiguring services around care trusts. That may not present insuperable problems, but it will undoubtedly cause some problems that will need to be surmounted. For example, let us say that a local authority such as the London borough of Sutton has a primary care group covering the bulk of its population—about 80 per cent. of it. If another primary care trust covering the population of another local authority covers 20 per cent. of Sutton's population, Sutton will have to enter into a voluntary arrangement with that local authority—the London borough of Merton, perhaps—to provide a care trust. Merton will presumably be providing social care services for at least 20 per cent. of the population of Sutton. If that is so, how will those local authorities be funded?

Under the SSA methodology, which is a demographically driven number formula, money will be sent to the local authority to provide for the needs of its community. Yet part of that community will have its meets met by another local authority and that, too, will be formula-funded under the SSA. How will that be unpicked? Will the money that goes to provide social care go with the individual to the care trust? In other words, will arrangements be needed to facilitate such a transfer of resources? I hope that the Minister will say a little more about those matters, because a lot of detail remains to be exposed.

Desmond Swayne (Conservative, New Forest West)

I certainly want to hear the answers to those questions. I hope that we will hear them during the stand part debate, because a number of other questions have not yet been answered. In seeking to include in the Bill our requirements for local authority representation, we intended only to probe. The Minister says, with some justice, that those matters are dealt with in subsections (7) and (8). Yes, they are, but we want to know how.

The result of our probing was not what we expected. In one respect, it was a pointless exercise, because the probe hit a blancmange—[Laughter.] Hon. Members may laugh, but that is the correct analogy. The Minister said that flexibility was needed; he certainly has it. He has absolute flexibility because he has not told us anything. Instead, we have to rely entirely on his assurance of a proper and fair balance of representation. We wanted to the Minister to tell us where that balance was to be found, but he was not prepared to tell us. In that respect, we have not been able to probe effectively. However, under the intense and perceptive scrutiny of my right hon. Friend the Member for North-West Hampshire, we have been told something of the nature of trusts, particularly of primary care trusts.

We shall certainly wish to think about that and look at the record before returning to the subject, but I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause, as amended, stand part of the Bill.

George Young (Conservative, North West Hampshire)

One or two issues are appropriately raised now, including some questions asked earlier that have not been answered. For example, I asked the Minister whether the independent appointments commission or the Secretary of State will be able to veto nominations to care trusts made by local authorities. I hope that he will confirm that local authorities can nominate whom they want to represent them, and that the Secretary of State will not have a veto, as was implied.

It has been a helpful debate, and I am now a lot clearer about what is proposed—although I am slightly more worried. The Minister argued that the arrangement is voluntary and that no one has to enter into it, and that it is not a takeover, but will be on the basis of equality. Many arrangements are, in theory, voluntary, but the Government nudge local authorities to enter into them, so they become almost compulsory. For example, the takeover of housing stock is in theory voluntary, but local authorities know that they will not receive the capital they need to modernise their housing stock if it stays in their control. The only way for them to go is the voluntary transfer route. Local authorities can say that that is voluntary, but it is the only way they can provide the services that tenants need.

We have not touched on a real resource problem, which is that the increase in resources for the NHS has been far larger than the increase to social services, and as a result many directors of social services are looking with some envy at the NHS budget. They are considering the problems confronting them; they are blamed for bed-blocking because they are not making placements in nursing and residential homes. Many of them see care trusts as the way out: as a way to access the limitless resources of the NHS and free themselves from the constraints of local authority budgets. When the Minister says, ``Yes, the arrangement is voluntary,'' he is right in one sense, but many directors of social services know that unless they enter into these agreement, they will be unable to access the resources necessary to deliver a quality service.

What matters is good working relationships on the ground, which we already have with the practice of pooled budgets and lead commissioning. That is the way forward. Having listened to the debate on clause 45, I urge caution before proceeding down that road at any great speed. The Minister's response made it clear that many key issues have not been resolved.

The Minister says that these arrangements are not a takeover. However, local authority social services functions will be bolted on to a primary care trust. It is like badge engineering--it is the same vehicle, but it will be called something different and have a few additional functions. How can the Minister present this measure to local government as a partnership of equals when he has given no assurances about the balance of representation? The Minister will come under increasing pressure from local government, which will see it as a slightly different animal than the one they read about in the NHS plan. If the Minister goes down that path, I urge him not to steam ahead at great speed, but to take local government with him. He should consider some of the issues raised in this helpful debate, and realise that, in fairness to the Committee, the Government have not been able to address some of the real issues as fully as they would have liked.

Peter Brand (Liberal Democrat, Isle of Wight)

It has been a useful debate. The right hon. Member for North-West Hampshire expressed his anxieties, and my hon. Friend the Member for Sutton and Cheam made perceptive points, which dealt with the position of local government and governance of the proposed care trusts. To pick up the analogy just used, I am sure that the Government are travelling in the right direction, although I warn the Minister that it will not necessarily be plain sailing.

When the Select Committee on Health looked into the relationship between health and social services, we found some excellent examples of joint working all round the country. In Northern Ireland, joint working was enabled by a structure that brought the two authorities together. Curiously, in only about a fifth of Northern Ireland were services integrated even though it has had a joint statutory body looking after health and social services since 1948. That shows the need for the Government to take the people that deliver the service and the community that benefits from it with them when they create such patterns.

We should not be talking of a takeover, but of a merger of cultures. We should not underestimate the difficulties that go with that. We need to evolve a common language. Social work language can be quite different from medical language. More joint training early in people's careers is needed. Although care trusts look like an attractive short cut to joint working, it will be a challenge to make that happen.

We also saw good examples in Scotland of successful integrated work—at times using methods that I shall describe as extra-statutory. Flexible arrangements were made locally, and when we challenged the commissioners on how it was possible to get away with them under present regulations, they replied, ``We ring the Minister in Edinburgh and sort something out.'' That shows what flexibility is needed to make local schemes work.

We also saw good joint working in Rochdale, but there is good joint working between health and social services at patient-client level all over the country. However, that often comes about as both sides of the joint team abandon some of their own rules and regulations, and set aside some of the local statutory regulations on, for instance, charging. We saw many examples of excellent mental health work with one integrated team. It was not possible to tell from the functions of team members whether they worked for social services or for a health authority. Clearly, different charging policies for members of one integrated team would have been nonsense.

The Government are dismissing too lightly the issue of charges and the culture associated with them. No doubt we shall return to that point on clause 48. The schemes that the Health Committee examined were all promoted, and all worked, because the people who worked in them adopted an extremely flexible approach to the statutory charges that were levied by bodies in the locality that were not involved in an integrated scheme.

I am disappointed that we have not, in considering the clause, touched on the importance of a clear commissioning and provider function. I know that it is sometimes thought a bit messy for both PCGs and PCTs—and now no doubt care trusts—to be providers and sub-commissioners of secondary and other services. However, the Minister has not explained clearly the proposed role of health improvement programmes, any relevant condition for joining a care trust, or an integrated planning function.

There are many issues concerning democratic accountability: the relevant input is important with respect to the governance of the care trust, but it is even more important with respect to the workings of the commissioning bodies, which, for a care trust, will still be one or more local authorities, and the health authority to which the care trust is responsible. It would be helpful if the Minister would describe more clearly how democratic accountability will be guaranteed on the commissioning side. We should have a structure for overcoming some of the practical local problems concerning lead authorities and shared social services provision, which were pointed out by my hon. Friend the Member for Sutton and Cheam.

Desmond Swayne (Conservative, New Forest West)

In discussing the previous group of amendments we tried to probe the question of who would be on the boards of care trusts, and how those boards would differ from those of existing trusts, such as primary care trusts. I should like to use this brief debate on clause stand part to probe the Minister further. He has assured us that the partnership will be genuine. If we take that assurance at face value, it begs several questions. For example, how will the partnership affect the local authority scrutiny function? If the partnership is genuine, the local authority will have acquired an interest in the trust. How, therefore, can its own independent scrutiny function continue to work effectively? How are the trusts linked to patients forums?

What about performance indicators? Will we develop new ones, tailor-made for care trusts, or will we apply the performance indicators that we have traditionally applied to local authorities or to NHS bodies? What happens when things go wrong? What will the complaints procedure be? Will complaints against the care trust ultimately be dealt with by the local government ombudsman, or by the NHS ombudsman?

The hon. Member for Sutton and Cheam asked some pertinent questions about financing and local authority boundaries. We require an answer on that. The question of how such things will work is not just constitutional and academic, although the discussion is interesting. The issues will have a real impact on the patients at the end of the line.

If a local authority enters into a care trust arrangement, will its social services committee continue to take policy decisions in the same way that it does currently? The hon. Member for Sutton and Cheam raised the question of charging in that respect. There is a fear that in future, existing NHS services will be repackaged as social care services, so that they can be charged for. We will be seeking some reassurance on the issue of respite care, which is currently provided by the NHS. If in future respite care is provided under social care provisions by a care trust, will the existing dispensation continue? Will there continue to be no charge for that care? It would be quite wrong if, in the new world of care trusts, people ended up being charged for a service that they currently get free of charge.

There is a series of pressing questions on the nature of the organisations, the way in which they are to be set up and the way in which they will work. The Minister says, ``We still have to think some of those problems through.'' However, all the questions have profound practical implications, which are bread and butter issues for the people who will receive the services at the end of the line.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The right hon. and hon. Members who have contributed to the debate have already posed several of the questions that have arisen. If the Government have not yet come to any final conclusions, such questioning helps to tease things out a little further.

Several questions arise from my own experience of the configuration of primary trusts, primary care groups and local social services departments. How will the issue of overlapping boundaries between the agencies be dealt with? Who commissions the social care services in areas where a care trust covers part of the population for one social services department and the majority of the population for another? Does the authority in which the person resides commission that service or does the authority that is providing the service commission it? Or does that function fall to the care trust, as a way of bridging the gap?

Who provides the care? If a care trust is based upon a local authority, but also operates in another local authority area, is the care package that it provides, which includes elements of social care, delivered by the local authority that has joined into the care trust or by the local authority that just happens to have the care trust operating on its patch but is not part of it? Who provides the care? In my constituency would it be the home care workers working for the London borough of Sutton, or would it be provided by those working for the London borough of Merton, which is part of the care trust?

Who pays for the service? Does the London borough of Sutton pay for the service and passports the money through to the London borough of Merton to pay into the care trust, or is the money mysteriously magicked away through the wonders of SSAs and rolled up into the grants that go to the care trusts?

Who sets the charging policy? If my constituent is provided services by a care trust which includes social care that is provided by the London borough of Merton, are the eligibility criteria and charging policies that apply those of the London borough of Merton or those of the London borough of Sutton?

Who monitors the service at a national level? Will it be the social services inspectorate or the Commission for Health Improvement or a joint arrangement? How will that work?

What are the issues around probity? The methods of guaranteeing probity between a managed service such as the NHS and local authorities are different. Where does the district auditor fit into scrutinising the accounts of the NHS bodies that are spending local authority-derived funds?

Finally, the hon. Member for New Forest, West described the arrangements for scrutiny by local authorities. Which local overview scrutiny committee would scrutinise the services—would it be that of the London borough of Sutton or that of the London borough of Merton? Where do my constituents go if they wish to raise concerns? I am sure that we will be told that their first point of call will be a patients forum, but if they have wider issues to raise, will they go to the London borough of Merton or will they have to come back to their Member of Parliament because he is the only person who could possibly help them navigate the systems that are being set up?

During our consideration of the proposed amendments to the clause various questions were asked and the Minister graciously answered quite a few of them. However, one or two still have not been addressed. I have asked twice so far today whether the Government's arrangements will specifically include older people. It would be useful to know whether, in principle, the Minister accepts the case for such inclusion.

The legislation governing social services has evolved through case law. There is a great wealth of case law now determines a good deal of practice in social services departments. The NHS, however, tends to be driven by guidance. It would be useful if the Minister could tell us where and how the line will be drawn. How will case law that has already developed—and no doubt will develop in future—affecting the operation and delivery of social services impinge upon the operation of NHS bodies within the framework to be put in place by the legislation?

My final question is again one that I asked earlier, but to which I have had no answer. It relates to the need to ensure that carers and service users are included in the arrangements for assessment and are entitled to separate assessments. As the Minister knows, that is established through the Carers and Disabled Children Act 2000. How will it apply within a care trust? Will it apply, as now, within the context of that statute, or will there be new arrangements? Many carers who supported that private Member's Bill would like to have clarity on that at the earliest opportunity.

John Hutton (Labour, Barrow and Furness)

We have had a full debate on clause 45. I have been described as a blancmange by the hon. Member for New Forest, West, and that is certainly a first.

Desmond Swayne (Conservative, New Forest West)

I was referring to the Bill.

John Hutton (Labour, Barrow and Furness)

With respect, I believe that he was describing me as a blancmange. That is certainly how it struck me and I am not altogether sure whether it is a flattering observation. I shall need to consult my learned friends on that and no doubt return to the matter later.

Generally, however, I am grateful for the clause's reception, which has at times been positive. I am also anxious to dispel some of the lingering doubts that Opposition Members have expressed. The leading doubter is the right hon. Member for North-West Hampshire, who knows about the subject from when he was a Minister, and obviously remains a sceptic about care trusts.

Labour Members subscribe to conspiracy theories on a routine basis. It seems as though that virus has infected the right hon. Gentleman where care trusts are concerned. Let me say in all candour that there is no hidden agenda about financial issues or charging responsibilities in relation to social care services. Care trusts are not a short cut. There are no quick fixes to the policy that we are pursuing, which is the closer integration of health and social care.

As usual, the hon. Member for Isle of Wight displayed common sense when he talked about the different cultures of the organisations, which we know exist. I strongly believe that sensible solutions are at hand to facilitate the success of care trust organisations. We have scrupulously tried to ensure that the proposals in the Bill put those in the NHS plan into effect. The right hon. Member for North-West Hampshire tried to imply that the proposals in the Bill were somehow different from those in the NHS plan, but that is not the case. We set out the strategy in the NHS plan, and the Bill provides the technical means whereby the care trusts can come into existence.

I assure the right hon. Gentleman, and the hon. Members for Sutton and Cheam and for Isle of Wight, that care trusts are not a vehicle for extending charges. We have heard the mantra that establishing a care trust is some cloak-and-dagger operation to allow the NHS to charge for its services, but Opposition Members should get real. As a Government, we have made it repeatedly clear that we will not extend charges for NHS services. That may be the agenda of the Conservative party; it may even be the agenda of the Liberal Democrats, but it is not our agenda. That argument is bogus and false.

Peter Brand (Liberal Democrat, Isle of Wight)

My concern was not that the Minister might extend charges; I would not be so uncharitable. I warned that the existence of charges as at present in social services militates against the joint working relationships that we are so keen to see. That was clearly one of the findings of the Select Committee on Health.

John Hutton (Labour, Barrow and Furness)

I do not accept that, as I have made clear. The last occasion on which I did so was in the House last night. The issue of charging has been raised, but it has been a feature of social care delivery in this country since 1948. I accept that we have not achieved all that we have wanted in terms of closer working between the NHS and social care services since 1948, but to attribute that largely to the issue of charging for social care services is to misread the situation.

We must address organisational issues, and the care trusts will help us to do that. We could hide in our bunkers, as I suspect that the Liberal Democrats are doing, and say that charging makes it impossible for health and social care services to work effectively together. That is essentially what the hon. Member for Isle of Wight just said, as he said that it impeded effective working. However, that is a false analysis and is not borne out in reality.

Philip Hammond (Conservative, Runnymede and Weybridge)

Perhaps rather predictably, I am rising in response to the Minister's provocation, and I suspect that it may not be for the last time today. As he knows full well, the policy of the official Opposition is that we have ruled out any extension of NHS charges.

John Hutton (Labour, Barrow and Furness)

Well, there we are. We all feel reassured about that. I hope that the hon. Gentleman will not mind the fact that I am glad to say that the matter remains academic, given that, rather obviously, he will not be in a position to have any bearing on the future of the national health service. Those who saw how the Conservative party managed the affairs of the national health service are entitled to take everything that the hon. Gentleman and his right hon. and hon. Friends say with a heavy dose of salt.

Philip Hammond (Conservative, Runnymede and Weybridge)

On a point of order, Mr. Maxton. I hope the Minister is not suggesting that in making that statement I sought to mislead the Committee or that it was not a true statement made in good faith.

John Maxton (Labour, Glasgow Cathcart)

That is not a point of order.

John Hutton (Labour, Barrow and Furness)

I am genuinely sorry to have upset the hon. Gentleman.

Philip Hammond (Conservative, Runnymede and Weybridge)

There will be more of that.

John Hutton (Labour, Barrow and Furness)

Yes, perhaps there will, because many Labour Members have longer memories than the hon. Gentleman and remember the contribution that he and his party made to the history of the national health service. I do not think that any Labour Member would be other than horrified at the prospect of he and his right hon. and hon. Friends having jurisdiction over the national health service in future. Indeed, I think that that would apply to anybody in the country as we know exactly what the Tories think about the national health service. It is clear from their actions and their words that they do not believe in it. However, that is a wider topic.

Philip Hammond (Conservative, Runnymede and Weybridge)

I am sorry to waste the Committee's time, but if the Minister insists on placing on the record statements that he knows to be false, I am forced to correct him. My right hon. Friend the Member for Richmond (Mr. Hague) and my hon. Friend the Member for Woodspring (Dr. Fox) have repeatedly reasserted the Conservative party's commitment to a universal national health service free at the point of use. The Minister knows that well. It is not an effective use of the Committee's time to repeat those old slurs.

John Maxton (Labour, Glasgow Cathcart)

Order. It would be for the benefit of the Committee if we returned to debate the clause.

John Hutton (Labour, Barrow and Furness)

I am happy to debate the clause.

A number of final issues were raised, particularly by the hon. Member for Sutton and Cheam. He spoke of coterminosity. I drew his attention to clause 25(3) that deals in part with one of his concerns.

The hon. Gentleman also raised the slightly different issue of how a care trust would provide social services functions to a group of patients on the list of a GP covered by the PCT, but outside the local authority area. I am sure that the hon. Gentleman understands that a care trust cannot provide social services functions that have not been delegated to it by a local authority. So if some of his constituents are on the list of a GP, but not within the local authority boundary, unless their local authority is also party to the care trust, the trust will not be in a position to deliver or assume responsibility for social services functions in respect of those people.

Peter Brand (Liberal Democrat, Isle of Wight)

Would it be possible to have an ad hoc arrangement for a small group of clients of a local authority to have their services provided by a care trust even though the local authority is not a signed up member of the trust?

John Hutton (Labour, Barrow and Furness)

I do not think that that will be possible. I will look at the issue in detail and advise the hon. Gentleman and the Committee.

We have had a long debate and I sense that Committee members are keen to move on to other parts of the Bill. Having heard the doubts that they have expressed about the clause, perhaps right hon. and hon. Members should ask themselves one fundamental question: is it right to pursue closer integration between health and social care services under the umbrella of a new organisation that will have a fair and balanced representation of local authority interests and will lead to better front-line services for those who use the NHS and social services? In the first instance, older people may well be the principle beneficiaries of care trusts, but other client groups can benefit too, particularly people who suffer from mental health problems. We have to ask ourselves whether we believe that it is right to develop a new framework within which health and social services are more closely integrated? I believe that we should answer yes.

Question put and agreed to.

Clause 45, as amended, ordered to stand part of the Bill.

Clause 46 - Care Trusts where directedpartnership arrangements

George Young (Conservative, North West Hampshire)

I beg to move amendment No.260, in

page 40, line 9, leave out `any of'.

John Maxton (Labour, Glasgow Cathcart)

With this, we may take amendment No. 259, in

page 40, line 18, at end insert—

`( ) Regulations shall make provision—

(a) prescribing the criteria by which an authority will be deemed to have failed in relation to its functions;

(b) prescribing arrangements for consultation with the failing body and other relevant interests;

(c) prescribing the circumstances and procedures to ensure that wherever appropriate the failing body has the opportunity to remedy any failure to properly exercise any of the relevant functions;

(d) providing for a right of appeal to a court by the failing body as to the law or any finding of fact by the relevant authority against the authority's judgment that a local authority has failed in its provision of relevant services.'.

George Young (Conservative, North West Hampshire)

We now move to clause 46 where, once again, the Minister will have to find some fresh vocabulary to explain why we are proceeding with care trusts. We have heard a great deal about voluntary arrangements, no compulsion and equal partners. That may well have been valid for clause 45, but it is not valid for clause 46, which provides that the Secretary of State can move in and impose a care trust. So we can now say goodbye to Mr. Hyde and hello to Dr. Jekyll because this is perceived as a punishment. It is difficult to see how a care trust can be both a reward for good behaviour and a punishment for bad behaviour. All we know about clause 46 and the circumstances in which it will be invoked is first, that the authorities involved did not want to enter into an arrangement voluntarily, and secondly, that something has gone wrong. Against that background of an unwillingness to work together and something going wrong, it seems heroic for the Secretary of State to move in and impose a new arrangement that is as yet untried, and about which we have had a full debate.

The import of amendment No. 260 is to narrow the circumstances in which the Secretary of State can intervene by deleting the words ``any of''. The current wording of the Bill suggests that if a local authority failed to exercise any of its health related social service functions adequately, the Secretary of State could move in and impose a care trust structure. Such a direction could result from a difficulty with a single aspect of an individual service. This is very draconian given that there is no requirement on the Secretary of State to give the authority the opportunity to remedy the problem. I hope that the Secretary of State will agree that the clause 46 solution should be applied only when everything else has failed and attempts have been made to solve the problem is in more conciliatory ways than by the imposition of a care trust. The Minister could begin to allay some of the concerns about clause 46 if he indicated the circumstances in which the functions had failed, whether the evidence that substantiated that view would be in the public domain, and whether it would have to be underpinned by independent professional opinion.

It might help inform the rest of our debate on clause 46 if, in his response to amendment No. 260, the Minister could say a little more about what might trigger such a draconian remedy with all the consequences for local democratic accountability that would flow from it.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I have just a couple of questions to add to those of the right hon. Gentleman. The briefing note that has been circulated quite rightly says:

``The Secretary of State will need a good reason to recommend the formation of a care trust or a flexibility. What is important is that the intervention power is evenly balanced.''

The right hon. Gentleman's amendment would set out in the Bill a procedure whereby the Minister will have to operate in an open and transparent way in setting out the grounds on which a failure is identified and what that failure is. It would provide an important safeguard in the exercise of the Secretary of State's power. I hope that the Minister will accept the amendment or something similar and recognise that transferring a service into a care trust or a flexibility ought not to resemble the use of a sledgehammer to crack a nut. If a particular service is failing, there might be a case for some of the measures contained in clause 46, but no need to transfer all the other services that may well be part of that local authority's social services department. It would be useful to have some clarity about how this power will be used.

Perhaps the Minister could also add a little detail to the reference in paragraph 36 of the briefing note to the proposal to have an arbitrator who could be brought in to determine the appropriate level of delegated functions. Who would be the arbitrator? Who would appoint him or her? What mechanisms will be in place to ensure that the local authority and the health service are satisfied with that? How will that person will be appointed? Those are important questions in understanding how the power under clause 46 will be used. I hope that the Minister will be able to give us some reassurances that the underlying methodology and the practice will be open, transparent and able to be checked by all involved.

Philip Hammond (Conservative, Runnymede and Weybridge)

As my right hon. Friend said, clause 46 raises quite different and important issues and I give the Committee notice that we shall be seeking to oppose it on stand part. In anticipation that the Government will resist that move, we have also tabled amendments to improve the clause and minimise its negative impact. At this stage I wish to associate myself with my right hon. Friend's amendments. They are a clear attempt to improve the transparency of the arrangement proposed under clause 46 and to reduce the arbitrariness of the Secretary of State's apparent power. Although we shall oppose the clause on stand part, I wish my right hon. Friend's amendments a fair wind as they are a valid attempt to improve what is a seriously flawed clause.

John Hutton (Labour, Barrow and Furness)

It may be helpful to the Committee if we start our discussion about the amendment with a few observations about the structure and nature of the clause. As the right hon. Member for North-West Hampshire will be aware, subsections (1), (2) and (3) of clause 46 are about directed partnership arrangements and subsection (4) is about the step that the Secretary of State might want to take to establish a compulsory care trust. The problem that we are trying to address, which is the failure to deliver an adequate level of service, can be addressed in one of two ways: either by a directed partnership arrangement under the Health Act 1999 or, if the Secretary of State so wishes, by the establishment of a compulsory care trust.

The right hon. Gentleman will have had an opportunity to read the Government's briefing note in which we try to put some flesh on the bones of our thinking on the clause. We make very clear the circumstances in which we would expect to take steps to establish a compulsory care trust. We use the expression that it would be established ``as a last resort''. I hope that that is an important clarification for the right hon. Gentleman.

The hon. Member for Runnymede and Weybridge talked about the arbitrary nature of the powers in clause 46 and expressed his concern that they could be used arbitrarily by the Secretary of State. That is not the case. We have debated similar issues on many occasions and he will be aware that the Secretary of State is not allowed to act arbitrarily. There is a framework of public law and general principles of law that makes the method by which the Secretary of State is expected to reach such decisions and conclusions quite clear. There is no suggestion, either in the Bill or in what Ministers or the Government have said in the NHS plan, that those general principles—the need to act fairly on the basis of evidence, and so on—will in any way be supplanted by what is proposed in clause 46.

It is very important, for my hon. Friends at least, that the Committee should understand that this is not—to use the expression of the hon. Member for Sutton and Cheam—using a sledgehammer to crack a nut. I ask hon. and right hon. Members to ask themselves why would we want to do that? We clearly would not. We want to develop the policy about care trusts in a sensible and reasonable fashion.

The right hon. Member for North-West Hampshire asked me to change my vocabulary and I am trying to do so. Let me reassure him, too, that this is not a smoke and mirrors operation whereby we shall effectively be able to use clause 46 to establish care trusts compulsorily across the country. If the hon. Member for Runnymede and Weybridge had looked at the Bill carefully he would know the answer to that question. He might want for his own reasons to be seen to be opposing clause 46; but I can reassure him that the clause has nothing whatever to do with any suggestion that the Government's policy is to use the provision universally to require the establishment of care trusts. That could not be done because, notwithstanding the Opposition's amendments, a clear set of preconditions needs to be established before the Secretary of State can use those powers; and those preconditions would have to be complied with to the letter before he could act.

The purpose of clause 46 is to ensure that the Secretary of State can intervene if service users are being failed, and if the integration of NHS and social service functions would improve the outcome for them. The Secretary of State needs to be able to act, and the words ``any of'' are important in allowing us to target that intervention to the benefit of the user.

The aim of social services is to provide a package of care to support older people and enable them to live independently within the community. If one element of that package—perhaps the home help service—fails to deliver the appropriate high-quality service, and if social services fail to monitor and review that provision, those people could be at risk and their ability to live at home compromised. If it becomes clear that it is not a one-off problem but a consistent failure of function, it would be the Government's duty to intervene. It would be sensible to use the intervention power in relation to that failing service. We need to be able to target the direction power, and we can add other functions if necessary.

The amendment would not limit the breadth of the new power. For local authorities, clause 46(3) limits intervention to a failure in social services. However, the words ``any of'' serve a crucial purpose. They make it clear that the Secretary of State can intervene when there is a failure of any health or social services function. Removing those words would cast doubt on that power, and might limit the intervention to cases of failure in all of a local authority's social services functions, or all of a primary care trust's health functions.

We are not using a sledgehammer to crack a nut. We shall be specific. We need to ensure that the package that is delegated is capable of being improved, and that it is not put at a disadvantage by being isolated from related services. That point is covered in subsection (2), which we seek to clarify with an amendment that I hope will have the support of the right hon. Member for North-West Hampshire.

Finally, I turn to the functions of the NHS and social services as set out in the partnership arrangements under the Health Act 1999. Amendment No. 259 attempts to build a detailed package around the need to intervene when services are failing. The right hon. Gentleman probably knows that we already have appropriate mechanisms to identify failure. They include performance management, monitoring, inspections and reviews. Those mechanisms will provide evidence to show when it is appropriate to use those powers. The usual process of enabling a body to improve its services through special measures will be allowed; but the direct use of the power may be required.

Clearly, if patient or client safety is an immediate problem, action may need to be taken more swiftly. It is not necessary to construct a new set of arrangements and begin the proliferation of new processes of review. The powers are intended to build on what already exists and not to replace other models of intervention. They are designed to give us the additional and valuable option to direct the use of the partnership arrangements. We shall therefore act if there is evidence of failure, using existing mechanisms to allow us to come to a decision, and we shall act in a reasonable manner. When intervening, we shall consider the best options to improve services for the benefit of all our constituents.

George Young (Conservative, North West Hampshire)

I am grateful to the Minister for dealing with some of my concerns. I take it that intervention will be a last rather than a first resort. He listed several procedures and special measures, but they would not necessarily provide a swift solution. My residual concern is about transparency and fairness to the local authority. Will he give an assurance that the reasons for his intervention will be put into the public domain, that the local authority will have an opportunity to respond to them and that, if possible, his concerns will be backed up by impartial, independent, professional opinion, so that it is not just his view or that of his Department? If that were the case, we might be able to cope without the regulations.

We need an assurance that the Minister would not merely say to the local authority, ``I'm sorry, but there has been an awful case in the papers. I want to use my powers of intervention'', and that there would be all the due process of equity, transparency and fairness. There should be an opportunity to respond, and the measure should be used only as a last resort when everything else has failed. If the Minister can give that assurance—in his own words rather than mine—it would allay some of the concern behind amendment No. 259.

John Hutton (Labour, Barrow and Furness)

To cut a long story short, I can give the right hon. Gentleman those assurances.

Peter Brand (Liberal Democrat, Isle of Wight)

I support the points being made. I draw the Minister's attention to the debate on the Food Standards Agency. It was recognised that the Secretary of State needed to have the power to withdraw a function if it was deliberately not carried out effectively. In that case, there was a prescribed process, which provided the checks and balances mentioned by the right hon. Member for North-West Hampshire, including an appeal mechanism. The agency took the step and the Secretary of State was the formal appeal mechanism.

Philip Hammond (Conservative, Runnymede and Weybridge)

The hon. Gentleman has used the example of the Food Standards Agency legislation. This legislation is slightly different, because the Secretary of State would not be withdrawing a power that was originally his and that he had delegated, but would be intervening and taking a power that currently belongs to the local authority.

Peter Brand (Liberal Democrat, Isle of Wight)

That is an interesting observation. I disagree with the hon. Gentleman, because environmental health is a local authority direct function, just as the delivery of social services and some of the health provision is a direct function of local authorities. Serious checks and balances should be in place before the Secretary of State has the ability to override a locally elected, democratic body. That is why I share the right hon. Gentleman's concern. I hope that the Minister will flesh out the checks and balances and the opportunities for a local authority to make a clear case when a disagreement on policy arises between the Secretary of State and a locally elected body.

George Young (Conservative, North West Hampshire)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Philip Hammond (Conservative, Runnymede and Weybridge)

I beg to move amendment No. 305, in page 40, line 9, leave out `and' and insert--

`it shall notify all statutory patient representative bodies at the time in existence within the area covered by the body of its intention to make a direction under this section and shall invite representations regarding the proposed direction from them and, having taken such representations into account.'.

John Maxton (Labour, Glasgow Cathcart)

With this it will be convenient to take the following: Amendment No. 292, in page 40, line 16, at beginning insert--

`and has consulted with and it is supported by the Patients Forum and other relevant statutory and voluntary bodies in the relevant area'.

Amendment No. 297, in page 40, line 18, at end insert—

`(1A) The relevant authority may exercise this power only after taking full account of the conclusions of a best value review'.

Philip Hammond (Conservative, Runnymede and Weybridge)

The amendments would require the relevant authority to take into account the views of the appropriate statutory representative bodies in the area affected. The Minister talked at length about the voluntary nature of the arrangements between local authorities and health bodies under clause 45. We have some doubts about how the arrangements will work, but as long as they are voluntary, we will watch with interest and hope that they succeed.

Clause 46 provides the power to force the arrangements into existence against the will of either of the parties. Many people will question the workability of compulsory care trusts or directed partnership arrangements. I think that the Minister would accept that the concept of a directed partnership is internally contradictory: either people work together in a partnership or they do not. It will be especially important that we scrutinise the circumstances and the situation in which arrangements are made by direction of the Secretary of State under the clause.

The one justification that the Minister has put forward, which on the face of it is valid, is that this provision is about delivering services to service users. When the services fail, the service user must be protected. The Minister claims that it is not a matter of protecting the ego or the self-importance of any particular body, but of ensuring that the services are delivered effectively and efficiently. Surely, if the Government are abolishing one set of statutory patient representative mechanisms and putting in place another set, there should be an explicit requirement in the clause for consultation with whatever statutory representative bodies are in place when the clause comes into effect.

Amendment No. 305 has been deliberately phrased to accommodate the fact that we do not know the timescale for the coming into force of the different parts of the Bill. It is possible that the community health councils will be the statutory representative bodies when this part of the Bill comes into force, and will subsequently be replaced by patients forums and the other mechanisms that the Bill introduces.

Serious issues will arise if the Secretary of State uses his powers to direct a local authority to surrender its powers to him. The justification for the use of such powers will be the failure to deliver adequate services locally, and it will have to be a stark and obvious failure. If the statutory patient representative bodies are to have any meaningful function, they must be involved under such circumstances.

The Minister will no doubt say that there are powers in the Bill to make regulations specifying how things are to be done. He will no doubt assure us that those regulations will include arrangements for consultation. Later, I will say something about the Minister's assurances, and how much value we may attribute to them. Clause 46 allows for the compulsory transfer of power from one body to another at the instigation of the Secretary of State, on the grounds that patients' interests are seriously affected. I hope that the Minister accepts that there should be an explicit requirement in the Bill for consultation with statutory bodies of patients' representatives before any such transfer occurs.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Amendment No. 297 is designed to probe the Minister on the role of local authority best value in establishing whether or not a service is failing, which could trigger the exercise of the powers in the clause. When will a best value regime be introduced into the NHS? I understand that guidance on best value in the NHS is being produced. It would be useful to know when it will be published. Clearly, the closer the two regimes are, the better they can be married together in the context of a care trust. It would be useful if the Minister could say something about that, and if he could deal with the question that I posed earlier concerning the arbiter. Will he say more about who will appoint the arbiter, and what the arbiter's role will be? What powers will he or she have to resolve the question of what functions are transferred?

John Hutton (Labour, Barrow and Furness)

Amendments Nos. 292 and 305 would require consultation with statutory local patient representatives before either the Secretary of State or the National Assembly for Wales made an order for a care trust to be established. Amendment No. 297, tabled by the Liberal Democrats, concerns the duty to require a best value review before making a direction to use a partnership arrangement.

If the hon. Member for Runnymede and Weybridge carries on like this, he will make my job much easier for me. If he anticipates my response, perhaps I do not actually have to make it. That would save us all a lot of time. He rather ungraciously thought that he should question my assurances on the clause before he had heard them. That was uncharacteristically unkind of the hon. Gentleman. I hope to reassure him. We need to be clear about all the relevant matters.

The clause is about ensuring that action can be taken on services that have patently failed, presenting a risk to vulnerable people—adults or children. Of course we want to be as open as possible about the action that is being considered. We want to be able to include users and carers in making decisions about the services that they depend on. We need to talk to people as soon as we can about the intentions that may lead to the power of direction being used. However, throughout all those discussions we must keep in mind why we are considering intervening. The reason is to protect vulnerable people.

We will not intervene lightly, or without giving organisations an opportunity to work to improve services themselves. In fact, we expect that there will be a such clear process. However, what we are proposing will be part of an existing process. There is no question of inventing yet another new approach. We will use existing mechanisms such as performance management, monitoring, reviews, inspection and intervention powers, to give the Secretary of State another option with respect to the use of partnership arrangements.

Clearly, however, where patient or client safety is a matter of immediate concern, action might need to be taken more swiftly. Or, indeed, as the situation developed, advice was provided and the underlying causes in the failure of services were identified, the Secretary of State or the National Assembly for Wales might consider other models of intervention under best value or through the modernisation agency. The power is therefore not intended to replace current performance management or intervention powers but as an additional tool, where appropriate.

As to amendment No. 305, representatives of statutory representative bodies will be closely involved in considering and implementing the directed partnership

arrangements. Therefore there will be an opportunity to comment on what is intended, and their views, together with those of others, will be taken into consideration before the final decisions are made. I have made it clear in other statements to the Committee that the more we listen to users and users' representatives about the best approach, the more likely we are to get our proposals right, and the more likely we are to be able to respond to their needs.

Amendment No. 297 relates to best value. The power that we want to introduce does not interfere with other responsibilities of the relevant bodies, including the duty of best value placed on local government by the Local Government Act 1999. Local authorities are of course required through best value reviews to improve their services. Those who do that well and in the spirit of the legislation have nothing to fear from the clause, because they will be acting in the best interests of the users and the local community. Best value is intended to improve services. Our power of direction is aimed at doing the same when there is a need to intervene.

We have considered the impact on the authority's best value duty in circumstances in which a social services function was found to be failing. The Local Government Act 1999 is clear. Where there is failure local authorities can be inspected, rather than carrying out their own best value review. The power of direction will be used when there is clear evidence of a need for the use of the partnership arrangements. The services will have been inspected and we might need to act. We would not be able to wait in the wings for the completion of a lengthy process that could be a stalling tactic. Our concern at that point would be the needs of users and carers. I agree with the hon. Member for Sutton and Cheam that the duty of best value needs to be fulfilled. The power of direction will be used in the context of the powers that relate to best value. A best value review at the point in question would not help and might delay and confuse the issue.

The hon. Member for Runnymede and Weybridge referred to the Secretary of State's power to make regulations governing the use of his powers under clause 46. I do not want to add to what I said in relation to clause 45 and the amendments. We expect a proper opportunity to exist for effective consultation of local groups on the use of the powers. That is how we intend the procedures to be used and activated. I am sure that the hon. Gentleman will understand that we may need in some circumstances to act quickly and decisively. The rationale of the clause is the interests of those who use social services and of national health service patients. We must serve their interests always. We expect consultation to be an essential part of the process.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Will the Minister tell us a little more about the arbiter?

John Hutton (Labour, Barrow and Furness)

We will have to set out some of the details of this in the guidance and regulations that we intend to use. I knew that the hon. Gentleman would not like that. We will certainly not be hatching our own proposals in Richmond house. We want to discuss the details of this provision very closely with the Local Government Association, the Audit Commission and others to make sure that we get it right. The role of the arbiter, therefore, will have to be developed. We want him particularly to help us to determine the amount of resource transfer that might be necessary where agreement cannot be reached between the parties. The hon. Gentleman will accept that that is a difficult area and that we want to make sure that the arrangements we put in place for dealing with the issue are sensible and fair to all the parties involved.

For the reasons I have tried to set out, I would advise my hon. Friends not to accept the amendments.

Philip Hammond (Conservative, Runnymede and Weybridge)

I listened carefully to what the Minister said and, as I anticipated, he has indicated that, under regulations that the Committee obviously does not have the benefit of scrutinising, it is his intention to ensure that in normal circumstances there will be the type of consultation that we are discussing. If the Minister is right in saying that the clause 46 option would be pursued only in extreme circumstance and as a last resort, he should expect the conclusion of that consultation to be pretty much a foregone one. He would probably expect the Secretary of State to intervene and instigate the process only in response to representations from patient representative bodies. Indeed, if patient representative bodies have not noticed the problems in service delivery, it has to be questionable as to whether those problems exist.

John Hutton (Labour, Barrow and Furness)

The hon. Gentleman is trying to have his cake and eat it. He wants consultation and he now realises that there will be consultation. However, he is unhappy that, in his view, it will almost invariably support the conclusion that a care trust should be set up. That is a rather unreasonable position.

Philip Hammond (Conservative, Runnymede and Weybridge)

To quote the Minister back at himself, he is being slightly ungracious. I was going on to say that that is fine and, as far as it goes, it is reassuring. We would then have had the usual complaint that we would have preferred the provision to have been included in the Bill. I still fail to understand why it is not possible to put a reference to measures that the Government seem to take as read—such as consultation—into the Bill.

I was slightly alarmed, however, to hear that the Minister would not rule out an alternative scenario where there had to be an emergency intervention. In that situation, the Secretary of State would need to intervene without going through the due consultation process because of some urgency. The Secretary of State already has considerable powers of intervention where the safety of patients or of people receiving social care is at stake and it is necessary to act quickly. Indeed, in the past three years there have been examples of failing social service providers and on each occasion the Government intervened rapidly to ensure that a situation that was potentially dangerous or seriously disadvantageous to patients or users of services was contained and addressed in an appropriate way. The Government do, therefore, have powers to intervene in an emergency.

I am not sure whether it would be appropriate in an emergency for the Government to intervene using the powers under clause 46 to create what is intended to be an on-going and continuing situation—a care trust or a directed partnership arrangement. By definition, anything that is intended to endure into the longer term needs to be carefully thought out and worked up as a scheme, rather than imposed in the heat of the moment in reaction to some urgency. We are concerned that Governments are sometimes under political or media pressure to be seen to be doing something in response to a particular event—perhaps one that shocks the public and attracts the interest of the media. Sadly, only in the last week there was an example of an event that was particular shocking and demanded a response. However, we are now beginning to ask ourselves whether the response might deliver more problems in the future than were anticipated at the time.

Whenever Conservative Members are tempted to reach for legislative solutions, we have a habit of saying to each other ``dangerous dogs'' as a reminder that legislation that is entered into rapidly may not always prove to be the best thought-out and most effective legislation in practice.

We have concern that this route would be followed, as a result of press pressure and public opinion, in order to be seen to be doing something in reaction to a particular problem. I would be dismayed if the Government were to use the provisions in clause 46 without the proper consultation with statutory bodies on the grounds of urgency when the Secretary of State has plenty of other powers to intervene urgently. It is wholly inappropriate to create long-term structures on the back of an envelope, as it were, in response to pressure to act immediately.

I was reassured by what I take to be the 99 per cent case—the Minister's assurance that in the normal course of events there would be a proper consultation before any action was taken. As I said earlier, if services were really failing, I take it as read that the statutory representative bodies would support action being taken. I have already said that we intend to oppose clause 46 on stand part, therefore, there is no point in pursuing the amendment further in the light of what the Minister has said. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

John Hutton (Labour, Barrow and Furness)

I beg to move amendment No. 265, in page 40, leave out lines 22 to 24 and insert

`considers would, if exercised under or in accordance with the arrangements in question, be likely to contribute to an improvement in the exercise of the function referred to in paragraph (a).'

The purpose of amendment No. 265 is to clarify the intention behind using the intervention powers that are designed to improve a service that is actually failing. Our intention is to improve services that failed users. This is clear and unequivocal and a proper role for Government. We want to make that very clear in the wording of the Bill and that is what the amendment is designed to do. I hope that it will reassure some organisations that have expressed concern that the Bill as currently drafted will allow a range of other local authority functions to be drawn within the powers under clause 46.

In moving this amendment, our aim will be to improve the services that have failed and to ensure that other functions are included in the delegation only if they can contribute to the improvement of the failing service. Let us be clear that it does not mean that failing to deliver an orange badge scheme, for example, will lead to social services being stripped away—as some wilder speculation has suggested. The orange badge scheme is not even a social services function, and so could not even trigger the intervention powers in the first place. The amendment is designed to clarify the Government's intentions and to make it quite clear what functions could be covered by the scope of an order under clause 46.

Amendment agreed to.

Question proposed, That the clause, as amended, stand part of the Bill.

Philip Hammond (Conservative, Runnymede and Weybridge)

I am sorry to disappoint the Government Whip if he thought we were going to get through clause 46 before lunch, but I am afraid that I need to raise some issues.

As has already been well-rehearsed, the jury is out on the concept of care trusts, but we are broadly supportive of it as long as the initial schemes are properly evaluated and decisions to proceed are made on the basis of the evidence available and are entered into voluntarily. These partnership arrangements depend essentially on people working together and people cannot be coerced into working together.

Clause 45 stands in sharp contrast to clause 46 where the Government—

It being One o'clock, THE CHAIRMAN adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Four o'clock.

[Part I]

Clause 46 - Care Trusts where directed partnership arrangements

Philip Hammond (Conservative, Runnymede and Weybridge)

Before lunch, I drew a distinction between clause 45, which provides for an evolution of care trusts from the partnership arrangements first introduced in the Health Act 1999, and this clause, which provides for compulsion in that regard.

It is fair to say that the power to remove a function of a democratically elected body, take control of a slice of that body's budget, including locally generated council tax funding, and allocate it elsewhere, possibly directing it in support of a centrally funded and controlled service—the national health service—is a serious step. Despite the Minister's rhetoric of co-operation and partnership, which we heard today and during previous discussion of arrangements for co-operation between NHS and local authority bodies, it is, in effect, the exercise of brute power—the Secretary of State using his power under the Bill to re-allocate tasks from one body to another, as well as the budget that supports them.

An interesting exchange took place this morning about the Government's dilemma and their thinking on these matters. The Minister, of course, wants the arrangements to be entered into voluntarily. Indeed, he told us that they should be voluntary whenever possible. He also said that the one-size-fits-all approach did not find favour with him, and that flexibility is necessary, along with a recognition that different solutions will recommend themselves in different situations.

The undertone of the Minister's comments was that, if the Government regard something as a good idea, there is a moral obligation to roll it out. Clearly, a tension exists between the assertion that voluntarism is to be the main principle, and the assertion that there is an obligation to push forward measures that the Government think are a good idea.

If I may hark back to a couple of years ago, when a Committee debated primary care groups and primary care trusts, and a great deal of time and energy was expended on discussing the degree of pressure that would be applied to primary care groups to take on primary care trust status. Nobody questions that primary care trust status may be a good idea for some primary care groups. I concluded from those discussions that the Government's view was that there should be a genuine mixed economy of primary care groups and primary care trusts, and that some arrangements would suit some areas, while other arrangements would suit other areas. The assurances given by Ministers satisfied us that that was a sensible approach—that there would not be a push for a one-size-fits-all model. It was a nice soundbite.

However, two years later, inexorable pressure is being put on primary care groups to move towards the primary care trust model. The Government have clearly stated their preference for that model. When I heard the Minister saying that care trusts would be a model, but not the only model, I wondered whether, in two years' time, we will find that the Government are putting so much pressure behind their preference for care trusts that they will become, in practice, the model to be followed. We are worried that the Secretary of State will have powers under the clause to oblige movement to a primary care trust or directed partnership arrangement.

The pernicious thing about this measure is that the Minister is absolutely right: the Secretary of State will not have to use the powers under clause 46, except perhaps in extreme cases-of course he will not, because the mere existence of those powers means that he is unlikely to have to use them. When an unarmed man walks up to a man holding a machine gun, the chances are that the unarmed man will do what the man with the machine gun wants him to do without him being obliged to use it.

Hilton Dawson (Labour, Lancaster and Wyre)

Is not the logic of what the hon. Gentleman is saying that he and anyone else who votes against this clause are prepared to tolerate inadequate services?

Philip Hammond (Conservative, Runnymede and Weybridge)

No, that is not the logic. I said this morning that the Secretary of State has adequate powers-which he has used on several occasions-to deal with failing social services providers. He already has those powers, so that in an emergency, when the public are at risk, he can step in and give those authorities ultimatums. Eventually he can take over their powers as social services authorities if they are performing inadequately. The Minister is looking aghast. My understanding is that the Secretary of State has the power to take over the powers of a failing social services authority, and unless my memory is failing me, when the Minister of State, Home Office, the right hon. Member for Brent, South (Mr. Boateng) and I had the pleasure of discussing the situation that arose in Ealing some two and a half or three years ago, he made it clear that he would indeed be ready to use those powers.

Hilton Dawson (Labour, Lancaster and Wyre)

I hope that the hon. Gentleman is right, because I would support that power, but if that power is available-and presumably the hon. Gentleman supports it-why does he object to the power under this clause?

Philip Hammond (Conservative, Runnymede and Weybridge)

As I said this morning, for the Secretary of State to have the power to step in when something is going badly wrong-when an authority is clearly failing-is one thing. For the Secretary of State to take powers to impose what is supposed to be an enduring partnership arrangement is palpably crazy: you cannot impose a requirement on people to work together and co-operate; that is clearly a problem.

John Hutton (Labour, Barrow and Furness)

I have to check this, but as far as I am aware, the Secretary of State has no powers to take over the direct running of the social services department of a local authority. Social services have to be delivered under section 7 of the Local Authority Social Services Act 1970 under general guidance from the Secretary of State, and of course there are best value powers, but they do not involve or encompass the Secretary of State directly running a social services department.

Philip Hammond (Conservative, Runnymede and Weybridge)

I stand to be corrected, and obviously I do not have available to me the instantaneous resources available to the Minister to check my recollection, but my understanding is—I may be wrong on the detail—that the Secretary of State already has powers to step in and deal with a problem. I made that assertion this morning and the Minister did not question it then; no doubt he will have chapter and verse to hand in a moment to correct me if I am wrong on that point, but that is my understanding. I suspect that it is not essential to my point, so perhaps I can move on and if I have got that wrong I should be interested to hear the detail from the Minister, and I will then have to go and refresh my memory of the exchanges that I had with the right hon. Member for Brent, South.

I have raised this issue because we are dealing with the question of compulsion—of requiring a local authority to surrender its functions. I am referring to assertions and assurances that have previously been given about the Government's intention to compel things to happen. In that context, I listened carefully to what the Minister said this morning. At one point, he said that I had ungraciously questioned the assurances that he has given to the Committee. I did that for a reason, which is that the hon. Gentleman and I already had such an exchange when discussing the Health Act 1999 in Committee.

Clause 46 gives the Minister the power to

``direct those bodies to enter into such delegation arrangements or pooled fund arrangements in relation to the exercise of the appropriate function''.

Pooled fund arrangements are defined as

``arrangements falling within section 31(2)(a) of the Health Act 1999''.

When debating in Committee what eventually became that section of the Health Act 1999, I tabled an amendment that would have inserted

``provided that nothing in this subsection shall be construed as requiring any such bodies to enter into such arrangements.''

By that, I meant arrangements for the co-operation and pooling of funds between local authorities and health bodies. Our consistent position has been that those arrangements may be beneficial when they are voluntary, but are unlikely to be helpful when they are imposed. When speaking to that amendment—it must have been nearly 1 o'clock because I was extremely brief—I said:

``The amendment takes us back to a theme that we have already explored—the permissive nature of the arrangements. In our minds, there seemed to be a doubt about the wording of the clause. By adding the additional words, the amendment is designed simply to make it absolutely clear that nothing in subsection (1) should be construed as requiring such bodies to enter into such arrangements for any reason. If the Under-Secretary''—

now the Minister of State who is with us today—

``can give us an assurance that that is the Government's intention that the arrangements will be entirely voluntary and that the Secretary of State will not issue any directions that would require pooled budgets, I shall have no problem in withdrawing the amendment.''

The Minister responded by saying:

``I can give the hon. Gentleman that assurance.''—[Official Report, Standing Committee A, 18 May 1999; c. 801.]

He gave me a clear and categorical assurance that the Secretary of State would not issue directions requiring pooled budgets.

Here we are less than two years later with a Bill that will give the Secretary of State the power to

``direct those bodies to enter into such delegation arrangements or pooled fund arrangements''.

I am not seeking to be ungracious, but since that discussion in 1999 when the Minister gave me that assurance, which induced me to withdraw the amendment, perhaps he has had a change of heart. Alternatively, perhaps the Government intended all along that there should be such powers of direction to require a pooling of budgets between health bodies and local authorities. However, the Minister did not say that to me in Committee in 1999.

Will the hon. Gentleman say whether it was always the Government's intention to create such directed partnership arrangements or whether such a policy came into their mind since he made the statement in 1999? If so, what has happened since then to make the Secretary of State believe that coercion may be necessary and is a desirable weapon? To say that the Government may believe that coercion is better than voluntarism may be a slight exaggeration.

Without wanting to put too fine a point on the matter, what has happened has started to colour my judgment a little about some of the Minister's assurances to Conservative Members this morning. Given the nature of such proceedings, we often table amendments to probe the Government on certain matters and receive assurances that, although certain measures are not in the Bill, the ubiquitous regulation-making powers that the Government are giving to themselves will be used in a certain way or, indeed, will not be so used. However, now I find, on checking back, a clear example of legislation that is less than two years old—in fact, it came into force last April, so it is less than one year old—in which the assurance given by the Minister in Committee is clearly no longer valid. In this Bill, the intention appears to be diametrically opposite to that asserted at that time by the Minister in Committee.

Peter Brand (Liberal Democrat, Isle of Wight)

In an ideal world, the Secretary of State would set out strategies that local authorities would have the will, ability and resources to deliver. The real world is not like that. Luckily, it is rare for things to go completely amiss or disastrously wrong, but the Secretary of State is rightly held accountable when they do. However, it is unreasonable to hold him accountable if he does not have the powers to intervene. That is the dilemma for politicians in opposition: we do not want to give the Secretary of State powers, but we want to hold him accountable for everything that goes wrong. I have some sympathy with the Government's point of view.

If the Secretary of State is to exercise powers of coercion, that process should be seen to be open, transparent and accountable. I am worried that no process is provided in the Bill for appeals or further consideration when a decision has been made.

Government amendment No. 318 to clause 45 inserted the words

Where a body is designated as a Care Trust under this section—

and set out ways in which the trust could be dissolved. Does the Minister envisage having two types of care trust? The legislation suggests an interest not in performance, make-up or responsibilities, but in how care trusts were set up in the first place. Would a care trust set up under this clause have the same right to ask the Secretary of State to reconsider its future under that amendment? We might more easily accept the powers that the Secretary of State is taking—which I hope will be exceptional—to force an amalgamation of functions through a care trust, if we knew that the protective devices that the Government felt were necessary under clause 45 were also available under this clause.

John Hutton (Labour, Barrow and Furness)

The debate has reached the point from which we started, when we discussed the principle of whether the Secretary of State should be given the power to establish a care trust compulsorily, against the wishes of local partners, as a result of a failing service.

Hon. Members need to address the fundamental question of what measures should be available to the Secretary of State to deal with evidence of a failing public health service. We should all consider that issue, not only in our constituencies but in the context of the Bill. The clause is designed to give the Secretary of State new powers to deal with clear evidence of a failure to deliver public services of an appropriate quality, which our constituents have a right to expect.

I accept that Opposition Members have reservations and concerns about the fundamental philosophy behind the clause. As I understand their argument, they do not believe that it is right in principle that services that are locally democratically accountable should ever be the subject of such an approach by the Secretary of State. However, we argue that giving the Secretary of State that power puts public interest at the top of the list of priorities. I do not query their position, but it is a difficult one for the official Opposition to occupy, because I do not see any proposal for an effective resolution of these problems in their argument.

Philip Hammond (Conservative, Runnymede and Weybridge)

Our point is that the imposition of a partnership arrangement against the wishes of the partners is internally illogical, as the words ``imposed partnership arrangement'' suggest. We are saying that it is not practical. Other mechanisms may be necessary to deal with failure, but requiring people to co-operate and work harmoniously together cannot be the solution.

John Hutton (Labour, Barrow and Furness)

I accept the hon. Gentleman's argument, but that is only half the clause. The other half relates to the establishment of a care trust. We have provided directed powers in relation to the partnership arrangements and have included provisions relating to the care trust. I do not agree with the hon. Gentleman: that is how the clause will work in practice, as I shall explain in a moment.

The hon. Gentleman mentioned our proceedings on the Health Act 1999. It was never my intention, and I hope that he was not suggesting that it was, deliberately to mislead the Committee. As I understand the debate—I stand to be corrected—we were discussing whether the Health Bill required or allowed the Secretary of State to mandate or require partnership arrangements to be entered into. It does not. That is why we decided to introduce the new powers, as I shall explain later.

Underlying today's debate is an important argument relating to the legitimate Government response and how to put the interests of patients and the public first in dealing with a failing public service. The hon. Gentleman has a different view on such matters. We have presented our proposals in clause 46, and we believe that the powers are necessary and sensible. I believe, and I hope that my hon. Friends agree, that they put the interests of the public first and foremost, and will allow us to make progress in improving public services.

Philip Hammond (Conservative, Runnymede and Weybridge)

I must clear up one point. Of course I accept that the undertaking that the Minister gave in Committee related to the Health Act 1999. He is now taking a power for the Secretary of State to direct pooled arrangements, which he told us the Secretary of State would not do under the Health Act 1999. The Secretary of State will now be able to do so under this Bill. I accept that technically what the Minister said in 1999 was correct and does not contradict the Bill, but the spirit of it is certainly contradictory, and he should have the good grace to recognise that, and explain to the Committee what has happened between then and now that has caused him to make a 180-deg U-turn in his view about what is necessary or expedient.

John Hutton (Labour, Barrow and Furness)

I will certainly do that if the hon. Gentleman will allow me to finish my remarks. As I explained on earlier amendments to clause 46, the power will not be used lightly, or, I hope, frequently. However, it gives us a positive opportunity to act when other methods are inappropriate. I regard it as a power of last resort, as I said this morning. I envisage the power being used when it seems that no effort, support or outside help can change a culture of failure and decline, and when delegating a function to another body would release those problems and give staff and management a new lease of life.

I do not accept Opposition Members' implicit suggestion that the clause is an attack on social services. It is not. There are some outstandingly good social services throughout the country, as evidenced in our constituencies and on our travels around the country, but I do not believe that any of us would claim that that is universally true.

Difficult though it is, it is absolutely right for the Government to examine all such issues and consider what powers they believe to be appropriate in the public interest to advance the cause of high-quality public services. That is what underlines the provision made in clause 46. I understand the differences that exist between the two sides of the Committee, but as a matter of principle and record it is important to state clearly why we are taking the new powers.

The issue of what constitutes failure arises, and the clause refers to inadequate services. A body of evidence drawn, for example, from inspections will show us where we need to direct our attention. An inspection will be the precursor of consideration of the use of the powers. In tackling the problem, care trusts are one option, but they are not the only solution. They are not the default mechanism, but one of the options for directed partnership arrangements. The power is just one of a range of powers that can be used in specific circumstances. Just like the existing powers to intervene in social services, the new powers in the national health service relate to specific circumstances. We must be able to act appropriately to protect vulnerable people. That in a nutshell is what the clause will allow us to do, and that is why I hope that my hon. Friends will agree to its remaining part of the Bill.

Question put, That the clause, as amended, stand part of the Bill:—

The Committee divided: Ayes 11, Noes 4.

Clause 47 - Further provisions about directions in connection with care trusts

George Young (Conservative, North West Hampshire)

Before we move on to part IV, I should like to press the Minister on the financial arrangements that follow the scenario that we have just discussed under clause 46. Clause 47 relates to the amount that must be transferred from local government to the care trust following the establishment of the care trust. Some important issues are involved on which the Minister must focus.

By definition, we are discussing a local authority that has failed and did not want to enter into a voluntary arrangement but for which none the less, for the reasons that the Minister described, a care trust has been established. The issue arises of how the care trust will be funded. The Minister will look to the local authority to transfer the social services budget for the provision of the services that the local authority would previously have provided.

I do not believe that it will be straightforward. At present, most local authorities spend more than their standard spending assessments. The local authority in my constituency spends more on social services than it is supposed to under the rate support grant formula. It would be perfectly reasonable for the local authority to say to the Government, ``You think we ought to spend £x million on social services, which is the amount in the RSG; that is the amount to which you should help yourselves in order to run social services.'' However, the Minister might say, ``You are spending more than the SSA. I think it entirely reasonable that a larger sum than the SSA provision should go to the care trust.'' If the Minister had his way, that would affect the local authority, as money that might otherwise be designated for education or transport, for example, might go to the trust.

We now come to what will happen in the event of a disagreement. Paragraph (c) provides that in the event of a disagreement an arbitrator will be involved. The explanatory notes touch on that. In the event of a failure to agree locally on the level of funding an arbitrator can be brought in to determine the appropriate level, which can be checked against a national formula to compare decisions made locally. I wonder whether the Minister might say a little more about that. It is a novel arrangement—I have not come across it before—whereby an outside person will adjudicate as to how much money is transferred from a local authority to a central Government Department. That will require the wisdom of Solomon. If, as is suggested in the clause, he refers to a national formula, I imagine that that is the SSA. If that is the amount that ought to be transferred, the result may be that slightly less money is put in than was being spent previously.

On clause 47 stand part, it would help the Committee and local authorities to know exactly how much money the Secretary of State was going to take out of their pockets in order to go ahead with the arrangements under clause 46.

John Hutton (Labour, Barrow and Furness)

It might be helpful for Committee members to consider the context of clause 47 and what it is designed to do. If the Committee accepts the principle—I accept the Conservative Opposition did not agree to this—that the Secretary should have the power to set up a care trust in the circumstances outlined in clause 46, I hope it is clear to the right hon. Gentleman that the powers in clause 47 are necessary and complementary to making sure that that policy objective can be secured.

It is clear from the way in which clause 47 has been drafted that, even in circumstances where a compulsory care trust has been set up, we want to allow for the possibility of an agreement about the resources that should be transferred. We all accept that that would be the preferable solution. At the same time, however, we cannot allow a situation to develop where, in the absence of such an agreement, the compulsory care trust could be frustrated by one or other of the parties not agreeing the resources that were necessary for the establishment of the care trust. That would clearly drive a coach and horses through the main policy objective. We need, therefore, to deal with a situation where, in the absence of agreement, the Secretary of State has to make a decision about the resources. Having looked at the matter very carefully—and I agree that more discussions are needed between the Government, the Local Government Association and other interested parties—we consider that it makes sense to use the expertise of an arbitrator to resolve any disputes about how much resource should be transferred to the care trust under clauses 46 and 47. That is essentially what we are trying to do and it makes sense to deal with it in that way.

The right hon. Member for North-West Hampshire (Sir G. Young) has asked me to specify what I think will be transferred to the care trust under clause 47. With the greatest of respect—and I am sure that he knows this as he has done my job—it is not possible for a Minister to tell the Committee precisely how much will be transferred if particular circumstances arise in the future. That is clearly not a possibility. Of course we would have to look at the standing spending assessment and at what the local authority had spent on the services involved. Of course we shall have to do that. In the absence of agreement, however, it will be the arbitrator's job to advise the Secretary of State on the appropriate level of resources that should be transferred.

Philip Hammond (Conservative, Runnymede and Weybridge)

The Minister will correct me if I am wrong, but my understanding is that the standing spending assessment indicates the amount that a local authority ought to spend in order to deliver services adequately. How will the Minister tell a local authority that he requires them to deliver a sum greater than their social services SSA for the purpose of financing a care trust or a partnership arrangement? How will Minister justify that? Is he saying that the SSA does not provide an adequate formula for determining the correct amount of spending?

John Hutton (Labour, Barrow and Furness)

I would be a very brave man if I were to enter into that discussion. I do not know how other members of the Committee feel about this, but having some responsibilities in these matters and looking at the current distribution of local government resources, I think that very few right hon. and hon. Members would say that the system was satisfactory. That is why the Government published proposals in the Green Paper on the reform of local government finance setting out a way in which we might introduce greater fairness into the system. The discussions are on-going and the Government have come made further proposals.

As a matter of principle and a matter of record, the right hon. Gentleman might be interested to know—he might have had some responsibilities for this in his previous ministerial incarnation—that under the previous Administration the Welsh Office introduced arbitration schemes for settling resource disputes between GP fundholders. The principle, therefore, of an arbitrator to resolve these disputes is not novel. It has been used on previous occasions. I must also say, with the greatest respect, that he was not right in his remarks when he talked about transferring resources to a central Government Department. That is not so. We are talking about transferring resources to the care trust, so that it can deliver appropriate, high-quality public services. That is not transferring resources to the Department of Health.

The question is whether we need the clause. In my view, the answer is yes. Resolving the issue of resource transfers is a complex matter. We have set out a proposal that will make sense of that, and allow the matter to be dealt with. It will be dealt with in the first instance by agreement, wherever that is possible. If it is not, it will be dealt with through the expert assistance of an arbitrator, who will advise the Secretary of State about the appropriate level of resource transfer.

With the greatest of respect, I probably cannot go any further than that in specifying the formula that will be used to judge the necessary amount of resource transfer, or in answering the detailed questions, which are important and must be resolved. They will be resolved, and a sensible set of conclusions will be reached, in further discussions with the LGA and others. As with clauses 45 and 46, the fundamental question is whether we need such a power. The answer is clearly yes, as we have established the case for a compulsory care trust, and the detail of the proposals offers a sensible, pragmatic, fair and even-handed way of resolving issues that are complex both in practice and in principle.

Question put and agreed to.

Clause 47 ordered to stand part of the Bill.

Clause 48 - Exclusion of nursing care from community care services

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I beg to move amendment No. 279, in page 42, line 38, after `authority', insert `in England'.

John Maxton (Labour, Glasgow Cathcart)

With this it will be convenient to take new clause 11—Exclusion of long term care from community care services in Wales—

`.(1) The National Assembly for Wales may by order provide for the exclusion of long term care from the provision of community care services in Wales.

(2) ``Long term care'' means any care in a residential or care home setting that is not board and lodging.'.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The amendment seeks to avoid the House debating whether to allow another body to decide how to proceed with personal care and whether or not it should be provided. The amendment and the new clause make it clear that these are devolved matters for the Welsh Assembly. It is a matter of ensuring that the Welsh Assembly is able to take decisions on the provision of personal care in the context of its own priorities and resources and the situation in Wales. In other words, it would enable the Welsh Assembly to reach its own view, on the basis of the evidence, on whether to follow the royal commission's recommendations for free personal care. That is the purpose of the amendment and the new clause—to allow the Welsh Assembly the same freedoms as the Scottish Parliament.

In the debate in the House last night, the Minister referred to the current position of my colleagues in Wales, for the simple reason that the Liberal Democrats are committed to devolution. We accept the possibility of different solutions in different places. We do not have a problem with that. In the case of England, we believe that the Government should adopt the policy that has been adopted in Scotland, because it is right. If our colleagues in Wales, having assessed the situation there and having considered the representations that are made to them, reach a different conclusion, that is the consequence of devolution. There should be no problem with that. The amendment and the new clause were tabled in order to secure for the Assembly the same power as the Scottish Parliament and allow them to consider the matter for themselves.

Philip Hammond (Conservative, Runnymede and Weybridge)

I am grateful to the hon. Member for Sutton and Cheam (Mr. Burstow) for tabling the amendment. He and the Minister had the pleasure of slugging out the debate on personal care last night in the House. Unfortunately, I was not present, so I apologise to both of them if it turns out that some of the issues that I want to raise were discussed last night. I know that some of them were, but I am sure that neither hon. Gentleman will be dismayed by having to discuss them again.

The amendments give us the opportunity to discuss the devolution-related issues, to which the hon. Member for Sutton and Cheam has already drawn our attention. There are continuing controversies surrounding the matter. Essentially, in this part of the Bill, there will be three separate debates. The first would be about balancing the desire to address the concerns of older people and their families about the iniquities of—and the perverse incentives in—the current system of means-tested support for long-term care with the fiscal concerns. The second issue relates to devolution and the third concerns the Government's definition of nursing care and how the provision will work in practice.

On the second matter, the devolution-related issue, the hon. Gentleman has set the amendment in in the context of Wales, but he referred to the situation in Scotland. Theoretically, the amendments would place Wales in the same position as Scotland. I am sure that the Liberal Democrats would like that to happen, as they are currently exploiting to the full the Government's discomfort over the Scottish fiasco—and who can blame them? Labour's problem in Scotland really concerns its approach to devolution. The controversy over personal care throws the issues into stark relief. We have said for some time—and I have said it more times than I care to remember in Standing Committees—that Labour's perception of what devolution means and how it works was always based on the assumption that the same party would be in control of both sides of the equation. The Liberal Democrats have exploited the leverage that they currently have in relation to the Scottish Parliament in order to embarrass the Government and place them in something of a dilemma.

Peter Brand (Liberal Democrat, Isle of Wight)

I am slightly confused by the term exploited. The Liberal Democrats in Scotland, and indeed in Wales, are using the powers bestowed on them by the electorate to meet our commitment to that electorate.

Philip Hammond (Conservative, Runnymede and Weybridge)

I was referring to the Liberal Democrats in England who are exploiting what is going on in Scotland for their own purposes—and I am not necessarily criticising that. I am simply observing what is going on. It is obvious to us all that there has been pressure from Westminster on the Scottish Labour party to fall into line with what the Government are proposing. Ministers face a real dilemma. If Labour Ministers in London dictate the Scottish agenda, then devolution will be shown to be a sham. However, if the Scottish people are to receive materially different levels of benefit from the state, that presents a different problem for the Government. It raises a different question. The question that it raises in my mind is for how long the people of England and Wales will accept such a solution, because the arrangements for financing the block grant to Scotland have always been based on the assumption that there is a need to make fiscal transfers between regions of the United Kingdom—and now between different countries—in order to address different levels of economic deprivation. In other words, it is a a balancing exercise. People will view that in one light. However, when they see fiscal transfers being made and taxes being set in one country in order to transfer public funding to another country, not to make up for economic deprivation or to balance the situation, but to ensure that people in one country can enjoy a higher standard of public services than people in another country—I suspect that there will be some backlash and some questioning as to whether that is an appropriate way to proceed.

Let me remind members of the Committee of the context in which the debate about devolution and personal and nursing care expenditure is conducted. Health service spending per capita is 20 per cent. higher in Scotland than in England. I have repeated that figure ad nauseam, because it alarms me. It explains why it is affordable in Edinburgh to take some of the actions that the Scottish Executive are considering, and that the Liberal Democrats are pressing them to take. If we had 20 per cent. higher health spending per capita in England, there would be all sorts of options.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Several hours ago, the hon. Member for Runnymede and Weybridge (Mr. Hammond) raised some points about the operation of the Barnett formula. He has tried to bring the subject into a debate that is narrowly drawn around devolution to Wales. Will he set his remarks in the context of the position that his colleagues in the Scottish Parliament have taken, and say whether he has come to the same conclusion as them and favours the implementation of the royal commission's proposals?

John Maxton (Labour, Glasgow Cathcart)

Order. It would be useful for me to make it clear that it is possible to debate what has happened in Scotland in the context of the clause. However, if it is debated on this group of amendments, I cannot reasonably allow it to be debated on the next group as well. I am being fairly tolerant in allowing a debate on it now.

Philip Hammond (Conservative, Runnymede and Weybridge)

I am grateful for that guidance, Mr. Maxton. I carefully considered the structure of the Bill and the amendments to it, and felt that, since the England-Scotland issue could hardly be avoided in our debate, this group of amendments was probably the best one on which to discuss it. Indeed, the hon. Member for Sutton and Cheam mentioned Scotland when he introduced his remarks.

I appreciate the fact that the hon. Gentleman's intervention was mooted some time before he made it, but I think that I have answered his question. I said that the NHS spending per capita in Scotland was 20 per cent. higher than in England. Scottish Ministers, and his and my Scottish colleagues, have a much larger fund to dispose of. If there were no resource restrictions, everyone would like to see the maximum extension of care provision. No one suggests that there is some reason in principle why a narrower definition of what will be provided free of charge is better than a broader one. The issue relates to the opportunity costs of doing so, and the priorities to be set by the Government or parties that have any prospect of being in government.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I am interested in the hon. Gentleman's comments. He seems to have got into the same JCB digger as the hon. Member for Meriden (Mrs. Spelman) when she dug a hole for her party in last night's debate on the issue. On his analysis of the opportunity costs involved, does his party have no commitment to finding additional resources for England, and so rules out the extension to free personal carers, as defined by the royal commission?

Philip Hammond (Conservative, Runnymede and Weybridge)

The hon. Gentleman obviously hopes that I will wriggle around the issue, but I will not. I was hoping to talk about it in the next debate, but I shall bluntly tell him our view now. With the limited resources available in England, and considering the priorities for health resource spending, we agree with the Government that there are better ways of spending that limited sum on the elderly who would benefit from the change that he proposes.

I will tell the hon. Gentleman later where we disagree with the Government. I do not seek to have my cake and eat it. The line dividing the Committee will change as our debate continues. The difference between the positions that the official Opposition and the Government have to take, and the position that the hon. Member for Sutton and Cheam has the luxury of adopting is the likelihood of the policies advocated being put into effect. It is easy for the hon. Gentleman to tick off a wish list of things that he would like to do, such as to link pensions to earnings or make all personal care free, but he does not have to say how he will raise the resources to do so. He has not told us where he will make cuts in order to deliver his party's wish list.

It is not part of my responsibility to do the Minister's dirty work for him, yet I am standing here doing what I was accused of this morning—making the case that the Minister will inevitably have to make against the amendments. I hope that I have answered the hon. Gentleman's basic question, but we need to take the matter further in the next debate.

Peter Brand (Liberal Democrat, Isle of Wight)

I am grateful to the hon. Gentleman for that clarification. Would he clarify another matter, which is to do with resources and devolved governance? Does he suggest that the Barnett formula should be abandoned so that the Scots would not be in a position to have a more favourable package?

Philip Hammond (Conservative, Runnymede and Weybridge)

It is self-evident that if it becomes obvious to elderly people in England that they have access to a lower level of publicly funded services than elderly people in Scotland, questions will be asked and there will be a groundswell of opinion against that inequity. I have said before that most people accept the principle that, within our United Kingdom, money needs to be moved around to help even out some of the inequities and differences in economic prosperity between the various regions. However, if money is being taken away from taxpayers in one area in order to fund a gold-plated service in another area, questions will be asked.

That goes to the heart of our fundamental concerns about the devolution settlement. If the Government are successful in their objective of keeping the lid on it so that we have devolution in name but not in practice, with similar policies being arrived at by different Parliaments that are essentially seamless, there may not be a problem. However, as soon as we arrive at distinct policies that deliver different services to the different peoples of the United Kingdom, we shall start to see the tensions that we have always predicted would result from the devolution settlement.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I am grateful to the hon. Gentleman for giving way; it might mean that we shall not have to revisit the subject in later amendments. The hon. Gentleman seems to be arguing that people will look across the border to Scotland, envious of what will be thought a better service, but he also subscribes to the Government's view that the policy in Scotland will not result in a better service. He seems to be arguing two entirely different points.

Philip Hammond (Conservative, Runnymede and Weybridge)

No. The hon. Gentleman must remember the context in which the debate is being conducted in Scotland by his hon. Friends, by my hon. Friends and by Labour Members. Scotland has 20 per cent. per capita more to spend on health, so options are open there that are not available to us in England. It is in that context that the hon. Gentleman needs to view those matters.

The announcements made by the Scottish Executive have, in my view, been rather unclear—perhaps deliberately so. I would hate to be ungenerous, but it has not slipped my notice that a general election is in the offing, and it may not be entirely inconvenient to the Government if the Scottish Executive's proposals for Scotland remained woolly for the next couple of months. However, I hope that the Minister will agree with me about the dangers of public reaction in England if there is a clear difference between the two countries in the standard and level of service provided. Can the Minister tell us something about how he sees this issue playing out over the next couple of months, in the context of what he is now proposing in this Bill for England, what the hon. Member for Sutton and Cheam is proposing for Wales, and what his own colleagues in Scotland are proposing for Scotland?

I am sure that we will want to deal with some of the wider issues, although not in relation Scotland, when we discuss the next group of amendments.

John Hutton (Labour, Barrow and Furness)

May I return the Committee's attention to amendment No. 279 and new clause 11 tabled by the hon. Member for Isle of Wight (Dr. Brand)? Amendment No. 279 would restrict the impact of the clause to England, whereas new clause 11 would give the National Assembly for Wales the power to make an order removing all local authority responsibility for long-term care, except those aspects that relate to board and lodging and residential care. The hon. Gentleman may be concerned about who pays for nursing care and personal care, but sadly his amendment does not say who should provide or resource that aspect of care.

The national health service does not currently have any responsibility to provide such care except when a patient's needs are predominantly for health care, and personal care is incidental to that. The amendment does nothing to impose any duty on the national health service, or on any other agency, to plug what would otherwise be a very substantial hole in community care services in Wales. I accept the point that the hon. Gentleman was making, and I assume that it is more of a probing amendment than a substantial one. None the less, it is worth pointing out that his proposals would leave thousands of people in Wales with no one responsible for funding their personal and nursing care costs. I am sure that that is the last thing he has in mind, but that is what would result from his amendment.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The Minister is right to conclude that that is not the purpose of the amendment. Does he agree that this matter should be devolved to the Welsh Assembly so that it can resolve whether personal care should be free?

John Hutton (Labour, Barrow and Furness)

As the hon. Gentleman is aware, the National Assembly for Wales already has the power to make precisely those decisions. That is why Jane Hutt in the Welsh Assembly earlier this week set out their response to the issues that the royal commission identified. It may not be the hon. Gentleman's purpose in tabling these amendments, but that is the effect that they would have. It would be disastrous for the people of Wales, and I am sure that he will not want to put this to a vote for that reason. The structural changes that could follow if the Government were to accept the tenor of these amendments would be very significant. The local authority social services role would be seriously diminished and, importantly, the integrated community care framework of assessment, care management and monitoring would be dismantled. As a result, the social care service framework would be entirely disjointed.

The hon. Member for Runnymede and Weybridge discussed important, wider issues to do with the funding of long-term care. Most of the comments had more relevance to the decision of the Scottish Executive. He and I have discussed these issues before. I suspect that it is quite a widespread view among his right hon. and hon. Friends that devolution is just about all right as long as everyone comes to the same decisions. As soon as there is any divergence of opinion, they say that devolution is not working. That is a completely bogus argument.

Philip Hammond (Conservative, Runnymede and Weybridge)

Will the Minister give way?

John Hutton (Labour, Barrow and Furness)

No. The hon. Gentleman and his colleagues should go away and think about their commitment to the principle of devolution. It strikes me that it is entirely superficial. At the first sign that the Scottish Executive want to make their own decision, he and his right hon. and hon. Friends run around screaming to the rooftops about how terrible devolution is. If I heard his comments rightly, he was holding out the prospect that a future Conservative Government—heaven forbid that we have to face that prospect—would punish the Scottish Executive by withdrawing health and social care services from the block grant, to ensure that they were penalised for funding long-term care. If that is not what the hon. Gentleman is proposing, I would welcome some clarification of his position.

Philip Hammond (Conservative, Runnymede and Weybridge)

I certainly did not say that at all, and I confidently predict that Hansard will show that tomorrow. I take exception to the Minister characterising our position as supportive of a sham version of devolution, when that is exactly the charge laid at the Government's door. To make the matter explicit, does the Minister deny that Labour members of the Scottish Executive have come under pressure from members of the Government to withdraw their proposals, water them down, or postpone them, in order to avoid embarrassment for the Government on their proposals in England?

John Hutton (Labour, Barrow and Furness)

That is a completely ridiculous argument.

Simon Burns (Conservative, West Chelmsford)

Answer the question.

John Maxton (Labour, Glasgow Cathcart)

Order.

John Hutton (Labour, Barrow and Furness)

With respect to the hon. Member for West Chelmsford (Mr. Burns), I shall answer the question in my own way. He might want to answer the question for me, but that is not how the structure of the Committee works on such occasions.

What the hon. Member for Runnymede and Weybridge said is transparent. He chose his words carefully—he is good at that--but there is no doubt that anyone who heard his remarks would have come to the conclusion that he was saying that the Scottish Executive could have free personal care, but the Conservatives would reassess the Barnett formula to ensure that there was a subtraction from the resources allocated. That is what he meant to say, but he did not have the courage to put it in as many words. He dropped a few hints and lit a few fuses by suggesting that that is what a future Conservative Government would do, and his remarks would certainly have been listened to in Scotland with great interest.

There are disagreements on the issue, not only between the parties, but within them. I understand that the Scottish Tories support the principle of free personal care. The English Tories do not. The Welsh Liberal Democrats have not fully embraced the implications of the Sutherland report. The Scottish Liberal Democrats have, and we now know that the English Liberal Democrats have as well. There are differences between the response of the Scottish Executive and that of the Government at Westminster, but that is the natural consequence of the devolution settlement. The hon. Gentleman has not raised any substantial issue of principle that should trouble or detain the Committee for a second.

Philip Hammond (Conservative, Runnymede and Weybridge)

I may not have raised an issue of principle, but I have asked the Minister a specific question, which is relevant to the case that he is trying to make. Have Labour members of the Scottish Executive come under any pressure from members of the Government in Westminster to water down, withdraw or delay their proposals, in order to avoid embarrassment to the Government?

John Hutton (Labour, Barrow and Furness)

No. Let me make it quite clear that it is entirely the responsibility of the Scottish Executive to come to their own decisions on these and any other matters that are devolved.

We will probably have an opportunity to discuss the wider issues relating to who pays for what in long-term care when we debate the second group of amendments. I certainly want to return to that issue, because there are important and serious arguments of principle and practice that we need to have. Those debates will continue.

The amendments would take the wrong direction for Wales. They would open up a black hole right in the middle of community care services in Wales, and they should not be part of the Bill.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

It has been useful to air some of the issues related to the interplay of the royal commission's report and devolution. The Minister has advanced the usual argument about the technical deficiencies of an amendment, which is perhaps part of the armoury of a Minister in Committee. On that basis, I am persuaded that the amendment should not be pressed.

However, I am not convinced that the Welsh Assembly has the necessary powers to consider fully the issue of free personal care. We wish to return to that matter. My colleagues in Scotland will be interested to learn that Conservative Members covet the difference in health spending between Scotland and England, and have an implicit desire to equalise that expenditure—presumably downwards, in the case of Scotland. That will be remarked on in Scotland with some interest.

Simon Burns (Conservative, West Chelmsford)

May I ask the hon. Gentleman, because I know that Liberal Democrats usually operate straight out of the gutter, to make it clear to his colleagues in Scotland that it was he who used the words ``presumably downwards'', not my hon. Friend.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I shall send my hon. Friends in Scotland a copy of the transcript. They will draw their own conclusions, and I am sure that many others in Scotland will do the same. The words of the hon. Member for Runnymede and Weybridge are more than adequate testimony to the policy that the Conservative party has now espoused. I see that the hon. Gentleman is keen to continue digging that hole.

Philip Hammond (Conservative, Runnymede and Weybridge)

I am not digging a hole—that seems to be the latest Liberal Democrat catchphrase. I ask the hon. Gentleman to do me the courtesy of urging his hon. Friends to read my words, not what the Minister thinks I wanted to say but did not have the courage to utter. I must tell the Minister that if I want to say something to him, I shall say it to him. The hon. Gentleman has been on Standing Committees with me often enough to know that that is so.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The hon. Gentleman's words are perfectly adequate. I am happy to pass on his words—and his words alone, if that is what worries him. They are more than enough to make the point. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Philip Hammond (Conservative, Runnymede and Weybridge)

I beg to move amendment No. 306, in page 42, line 41, leave out from `person' to end of line 42 and insert

`the provision of nursing care (whether provided by a registered nurse or not) to any person.'.

John Maxton (Labour, Glasgow Cathcart)

With this it will be convenient to take the following amendments: No. 287, in page 42, line 42, at beginning insert

`care for a prescribed condition or'.

No. 262, in page 42, line 42, leave out `nursing'.

No. 298, in page 42, line 42, leave out from `care' to end of line 6 on page 43, and insert

`or health care within the meaning of subsection (2)'.

No. 263, in page 42, line 42, leave out `by a registered nurse'.

No. 304, in page 42, line 42, at end insert

`unless such provision or arrangement is made under partnership arrangements under sections 27, 30 or 31 of the Health Act 1999'.

No. 288, in page 42, line 42, at end insert—

`(1A) In this section ``care for a prescribed condition'' means any services including—

(a) the provision of care; or

(b) the planning, supervision or delegation of the provision of care which is required by a person suffering from a prescribed condition, whether or not the same involves nursing care by a registered nurse.

(1B) For this purpose a ``prescribed condition'' is any condition which the Secretary of State may from time to time prescribe by regulations.'.

No. 299, in page 42, line 42, at end insert—

`(1A) In subsection (1) of section 3 of the 1977 Act (which consolidates provisions relating to the Health Service in England and Wales)—

(a) for paragraph (c) there is substituted—

``(c) medical, dental, nursing and ambulance services including nursing care and health care services within the meaning of section 48(2) of the Health and Social Care Act 2001, which are provided in and to residents in local authority, private or voluntary residential or nursing homes.''

(b) for paragraph (e) there is substituted—

``(e) such facilities for the prevention of illness, the care of persons suffering from illness and the after care of persons who have suffered from illness as he considers are appropriate as part of the health service including nursing care and health care services within the meaning of section 48(2) of the Health and Social Care Act 2001, which are provided in and to residents in local authority, private or voluntary residential or nursing homes.''.

(c) for paragraph (f) there is substituted—

``(f) such other services as are required for the diagnosis and treatment of illness including nursing care and health care services within the meaning of section 48(2) of the Health and Social Care Act 2001, which are provided in and to residents in local authority, private or voluntary residential or nursing homes.''.

No. 300, in page 42, line 42, at end insert—

`(2) In this section—

(a) ``nursing care'' means any services—

(i) provided by a registered nurse, or

(ii) involving the planning and supervision or delegation of the provision of care by a registered nurse, or

(iii) provided under the supervision or delegation of a registered nurse whether that nurse is present or not present when the service is carried out, or

(iv) provided by a non-registered staff or care workers following training or assessment by a registered nurse, or

(v) involving the provision of any equipment or personal aid that has been assessed as needed by a person and which would be provided by or under contract with a National Health Service body if that person did not reside either temporarily or permanently in either a residential or nursing home;

(b) ``health care services'' means the diagnosis, assessment, monitoring and any care, treatment or therapy which the person is assessed by a practitioner either employed by or working under contract to a National Health Service body as requiring, and which would be provided by or under contract with a National Health Service body if that person did not reside either temporarily or permanently in either a residential or nursing home;

(3) Any assessment for the provision of nursing care shall be carried out by a registered nurse.'.

No. 264, in page 42, line 43, leave out subsection (2) and insert—

`(2) The Secretary of State shall by regulations prescribe the meaning of ``care'' in this section.'.

No. 307, in page 42, line 43, leave out `by a registered nurse'.

No. 308, in page 43, line 1, at beginning insert

`usually or routinely of a type'.

No. 309, in page 43, line 4, leave out from beginning to end of line 6.

No. 225, in page 43, line 6, at end add—

`(3) The Secretary of State shall make regulations providing that all those involved in community care shall be required to undergo a training course explaining the role and responsibilities of those providing nursing care.

(4) Before making such regulations the Secretary of State shall consult relevant medical, social and pensioner organisations.'.

No. 301, in page 43, line 6, at end add—

`(3) In section 22 of the National Assistance Act 1948 (which provides for the assistance of persons in need by local authorities) subsection (2) is omitted and the following subsection is inserted—

``(2) Subject to the following provisions of this section, the payment which a person is liable to make for any such accommodation shall be in accordance with a standard rate fixed for that accommodation by the authority managing the premises in which it is provided and that standard rate shall exclude any costs for personal care services, within the meaning of section 48(5) of the Health and Social Care Act 2001.''.

No. 302, in page 43, line 6, at end add—

`( ) In subsection (2) of section 17 of the Health and Social Services and Social Security Adjudications Act 1983 (which makes provision relating to the financing of certain social services in England and Wales), after ``services'' there is inserted ``excluding any personal care service within the meaning of section 48(5) of the Health and Social Care Act 2001''.'.

No. 303, in page 43, line 6, at end add—

`( ) ``Personal care services'' means any service or services which a person has been assessed as being in need of under section 47 of the National Health Service and Community Care Act 1990 and which is care provided in respect of the following matters—

(a) personal toilet (including washing, bathing, skin care, personal presentation, dressing and undressing and skin care);

(b) eating and drinking (but not the obtaining or preparation of food and drink);

(c) the management of urinary and bowel functions (including the maintenance of continence and the management of incontinence);

(d) the management of problems associated with immobility;

(e) the management of prescribed treatment (including the administration and monitoring of any medication);

(f) behaviour management and ensuring personal safety (including the reduction of stress or risk for persons with cognitive impairment); or

(g) associated teaching, enabling and psychological support from a skilled professional, and assistance with cognitive functions to enable a person to undertake personal care tasks himself or with help.'.

Philip Hammond (Conservative, Runnymede and Weybridge)

The large number of amendments in this group, which were tabled by various Members, suggests that various issues need to be debated. We shall be dealing with two essential questions, which are linked but separate—the principle of extending free care to include personal care as well as nursing care and the fiscal implications of such a move; and the rather narrow practical issue raised by amendment No. 306.

With your indulgence, Mr. Maxton, I would like first to address some of the wider issues raised by other amendments in the group and then to return to the narrower subject of amendment No. 306 and related amendments. With those latter amendments, we essentially accept the principle from which the Government start but seek to probe the practicality of the distinction that the Government have made. I do not labour under the delusion that the broader debate will be harmonious; but I hope that when we come to discuss the practical working arrangements, we shall have a constructive debate about some of the real concerns that have been expressed in Parliament and outside.

The history of the subject is well known. The Government responded to the debate on the funding of long-term care of the elderly by setting up a royal commission. The commission reported the year before last, following which we waited for a considerable time for the Government to announce how they intended to proceed. I hope that the Minister will allow me to say that, prior to the general election, the then Opposition's stance was a rather grandiose commitment to deal with the problem. The suggestions, solutions, attempts to introduce some measure of alleviation and partial solutions to the problem that my right hon. and hon. Friends proposed were dismissed out of hand. I would be the first to admit, as I have acknowledged before, that those proposals were modest and pragmatic. They have often been criticised, but have not yet been bettered, to my knowledge.

On assuming office, the Government brought with them the implicit promise of a comprehensive and early solution to the problem of funding long-term care for the elderly. They deliberately raised public expectations, and have waited as long as possible before starting to let them down gently. This clause of the Bill is the result of Labour's rhetoric, when in opposition before 1997 and then in government, about the need to solve the problem. It may sneak in under the wire before a general election, depending on the mood in the other place, but it is unlikely to satisfy anyone after all the hype that has surrounded the debate.

The initial expectation among those who concern themselves with the long-term care of the elderly was that the means test would be abolished, and that there would be free nursing and personal care. After the royal commission reported and the Government made it clear that their preference was for the conclusions of the minority report, there was an expectation that nursing care would be free. Many people were disappointed about that. Now we have an extremely narrow definition of nursing care, and that sense of disappointment has been enhanced. There is a serious danger that public expectation will be dashed, even on the limited offer that was made after the Government backed the minority report. There will probably be a serious shortfall on the NHS contribution to the average £100 a week difference between residential care and nursing care.

The Minister would inform the debate if he confirmed the figures that the Government are working with. Last night, he said that the Government's proposals would be worth up to £5,000 a year to someone in nursing care. Clearly, that assumes that, for such a person, the whole of the difference between residential and nursing care would be eligible for funding under the Government's current proposals. So that we can better grasp the significance of the Government's proposals, will the Minister confirm the Department's budget estimates of the cost of providing NHS-funded nursing care in residential and other settings under the proposals? The most important thing for older people and their families in planning to meet their future care needs is certainty. As it stands, the Bill fails that test.

I should like to re-confirm a position that was dragged out of me during the last debate, although I had hoped to make it coherently in this debate. We do not believe that taking personal care out of the means test is the optimum way to maximise support for older people from a limited resource budget. Unmet care needs are significant. The Opposition's view—I think that it is also the Government's—is that it must be right to focus available resources on expanding the total care delivered, even if that means acknowledging that at present the inadequacies and inequities of the means-tested system cannot be addressed by that route.

We would all like the abolition of means testing. It delivers perverse incentives, and so sends perverse signals to people when they plan for their older age, especially in relation to the funding of long-term care. Those signals go directly against the grain of the Government's stated intention to enhance personal saving and secure greater responsibility for personal care planning among the population. The Government are increasing the use of means testing under the new name of targeting.

A question arises over priorities. It is not a question of whether we use the money to support elderly people or for some other purpose. It is a question of how we can best use a given and finite sum of money to support elderly people. In other words, it is about how best to deliver care to elderly people. We concur with the Government's analysis that, given resource constraints, the money that is available would not be best used if it funded the personal care needs of those who already had assets and who, under the current system, were being required to use them.

I do not want to be partisan on that point, because I am accepting the principle of what the Government are doing. It would, however, have been easy to say that we were going to stand up and be counted for the people who have to use their assets or sell their houses—a group of people who are not poor. It would have been very easy for us to say that. We have taken the view, however, that that would not be right and that we have to look at the care needs of the whole community of elderly people.

In that respect, I was rather injured to read the Minister's suggestion of last night that it was clear to him that it would be Conservative policy to focus any cuts on those least able to bear them. He was clearly referring to social services spending. I hope that he will acknowledge that by supporting the Government's position on the funding of long-term care, we are clearly acknowledging that it would not be right to target the available money on the best off, but that it must be used to broaden the base of care available for those who are less well off.

Divisions within the Committee will change. At the moment, I find myself arguing with the Government, and, implicitly, against the Liberal Democrats. The Liberal Democrats' position usefully allows the debate to take place, but we have to be responsible. We have to consider the fiscal implications of what we propose, as an Opposition, just as the Government have to consider the fiscal implications of what they propose. No-one costs the Liberal Democrats' proposals. No-one gets out a calculator. Indeed, when I was thinking about that this morning I was reminded of the brief period when I worked in Italy where calculators have an extra couple of digits to take account of the lire factor. We would have to distribute such calculators if anyone intended seriously trying to cost Liberal Democrat spending commitments.

Free personal care for all would drive a coach and horses through the Government's budget and through any likely future Conservative budget. It is for the Liberal Democrats to say where the cuts would fall in order to raise the additional funding that would be needed to deliver the policy that they promote, but they did not appear to be eager about doing that at the last election when they laid out their manifesto commitments.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The hon. Gentleman has been reading the Minister's script from last night very carefully and is sticking to it very well. I wonder, however, whether the hon. Gentleman, given his desire to see things costed, could give the Committee a lead by itemising the cuts that would be needed to achieve £8 billion worth of savings.

John Maxton (Labour, Glasgow Cathcart)

Order. Not during this debate.

Philip Hammond (Conservative, Runnymede and Weybridge)

You disappoint me, Mr. Maxton.

Ian Stewart (Labour, Eccles)

In answer to the hon. Member for Sutton and Cheam, the Opposition Front Bench spokesman said that he accepted the principle on which the Government had predicated their proposal. However, he also said that his party had differences with the Government. However, he also said that his party had differences with the Government. Will he come to those difficulties?

Philip Hammond (Conservative, Runnymede and Weybridge)

I shall do that right now. It says here ``but take issue with the Government,'' so I will now take issue with the Government.

I have acknowledged that the Government have taken a difficult decision, and that, after careful consideration, we have decided that we agree that that was the right decision to take, given the resource constraints. We differ from the Government in our contention that the Bill does not address the longer-term issue. There is a need to ensure that, in future, older people are better prepared and have better arrangements in place to cope with their long-term care needs. In that context, I shall welcome clause 54, which is an attempt by the Government to address, via another route, the ways in which long-term care could be funded without precipitating the trauma of asset disposal at the worst possible time for the individual involved.

Ian Stewart (Labour, Eccles)

Let us have it out in Committee. Is the hon. Gentleman advocating the introduction of insurance to cover that provision?

Philip Hammond (Conservative, Runnymede and Weybridge)

Not necessarily. Insurance products are available for people who wish to protect themselves against long-term care costs, but the evidence suggests that they have not been successful. Take-up has been poor.

Ben Bradshaw (Labour, Exeter)

Exactly.

Philip Hammond (Conservative, Runnymede and Weybridge)

There is no point in the hon. Gentleman sitting there, saying ``exactly'' and nodding his head.

I hope that the Government would acknowledge that there is a need to consider the long term and to consider what message we want to send to people who are in their 30s and 40s about how they should prepare themselves for their long-term care. In 20, 30 or 40 years time, the retiring population will include a much higher percentage of property owners, so it is possible that, under the proposed arrangements, the state's share of the burden of long-term care will fall. More and more people will be subject to the means test by virtue of being property owners—which is a good thing that we all support. Whether or not using property is the best way of arranging for people to make an affordable contribution to their care costs, and whether or not the current means test is the best way forward are legitimate questions that we expect the Government to address, along with the proposals in clause 48.

The Opposition are considering issues such as the appropriate roles of the individual and the state, and are debating those issues with people and bodies outside the House. We aim to create a situation that encourages those who are able to do so to make proper provision for themselves, and to do so in a way that does not present them with unpleasant decisions, such as selling a family property, at an awkward moment in their life, when that might not be the best way to meet the requirement to contribute to their own care. We also aim to define the proper role of the state in ensuring that everybody has access to the care that they need and that people do not face long periods of care and open-ended bills just because they have been prudent during their lifetime and saved, when their neighbours have not.

Ian Stewart (Labour, Eccles)

Can the hon. Gentleman give us an example of how that could be achieved other than through the insurance provision that he has rejected as unsatisfactory?

Philip Hammond (Conservative, Runnymede and Weybridge)

I do not want to outline our innermost discussions at the moment, but I will give the hon. Gentleman some ideas, because they are not rocket science, and they are not secrets. We have not heard anything from the Government about equity release arrangements for property, other than those that they are putting in place under clause 54. Perhaps we shall discuss how those will work when we reach that clause. There is scope to use the saving schemes that the Government and previous Governments have promoted to orientate people to think about the need to contribute to their long-term care needs.

More and more people who reach retirement, even though they do not consider themselves especially wealthy, will find in the context of our means-tested system that they are considered wealthy enough to contribute to their care needs. It is essential that people who will be asked to contribute to their care needs are fully aware of that eventuality and are assisted in every practical way during their working lives to prepare for it, rather than having to deal with it on the hoof in adverse and emotional circumstances, perhaps having had to give up their homes to go into residential care.

Simon Burns (Conservative, West Chelmsford)

The hon. Member for Eccles (Mr. Stewart) is oblivious to the previous Government's proposals for an alternative to current insurance policies. Before my hon. Friend takes another intervention from the hon. Gentleman, does he think that the hon. Gentleman should read the proposals, as they are a viable alternative?

Philip Hammond (Conservative, Runnymede and Weybridge)

My right hon. Friend the Member for Charnwood (Mr. Dorrell) made those proposals. I have already said that they have often been derided, but in my view have not been bettered. They are a contribution to the debate.

I strongly believe that one size does not fit all. We should seek to create a sense of personal responsibility in individual members of society, in relation to long-term care, so that there is a partnership with Government. The sooner individuals understand that role, the better, rather than their finding out as a nasty shock after retirement that the state will not provide them with the level of support that they had expected. That comes as a rude awakening to many people. I hope that the Government will actively pursue such an approach in parallel with the arrangements.

I have talked around the principle of the Government's proposal, but amendment No. 306 and related amendments tackle a practical issue. I hope that the Opposition can all agree on that issue, as that would realign the division in the Committee. The Government's decision is that nursing care will be provided. Many Members from all parties believe that it would be artificial to assess nursing care and personal care separately. However, if we accept the Government's proposition, we have to define nursing care. The Government propose, as a definition, only services provided by a registered nurse that cannot be provided by others. That is an extremely narrow definition.

The briefing sent to members of the Committee by the Royal College of Nursing states:

``In practice, much of the nursing care received by frail older people in nursing homes is delivered by health care assistants, working under the supervision and delegation of a registered nurse.''

Peter Brand (Liberal Democrat, Isle of Wight)

Does the hon. Gentleman recognise that the same holds true for nursing care given in NHS hospitals?

Philip Hammond (Conservative, Runnymede and Weybridge)

The hon. Gentleman is right.

I have two worries about the Government's proposal at a practical level. First, it will constrain the total supply of NHS-funded care that can be made available. As the Minister knows, nursing manpower is a constraining factor. If he says that only the care that is provided by the registered nurse is eligible, he will be rationing the amount of NHS-funded care that can be on offer in areas where registered nurses who are available for work are more rare than hen's teeth—a matter that I shall explore with him.

Secondly, the proposal will create a sub-optimal division of labour. Nurses, when deciding whether to delegate tasks to a health care assistant, will have regard not only to the competence of the person and the efficiency that that will create in the care setting, but to the implications that any such decision would have on charging. That conflicts with the Government's avowed intention—which we support—to ensure that, within our health care establishment, all professionals work to the maximum of their capabilities. Surely it would be a retrograde step if a perverse and unintended consequence of the Government's proposal was that work that could safely be delegated to health care assistants and, as the hon. Gentleman says, is delegated to heath care assistants in hospitals, in a nursing home setting had to be carried out by a registered nurse.

Amendments Nos. 306, 307, 308 and 309 recognise the Government's decision on nursing care, but would define it in a way that avoids the worst difficulties of demarcation and the most perverse resource misallocations. The test would be whether the care was of a type routinely or usually provided by nurses. Nursing care would be defined according to the type of care, not the person who delivers it. That would optimise the use of the total care work force, reduce costs and overcome the labour cap that is otherwise being applied. That is not so much a cash limit as, in areas in the south-east where nurses are difficult to come by, a human resource cap, which is being applied to the total amount of care that might be provided under such arrangements. It will allow nurses to continue to delegate their responsibilities when it is clinically appropriate to do so, without having to have regard to the financial consequences of such action for the people in their care.

The Government have not been clear about the assessment process in relation to nursing and personal care. Can the Minister confirm that the assessments will be carried out by nurses, not other NHS personnel? What impact do the Government expect the assessments to have on manpower resources? How many nurses will be diverted from patient care activities to undertake those assessments? Will the global amount of available NHS-funded nursing care be limited? In other words, will the assessments be competitive? In practice, social services assessments often are. A limited pot of resources is available and it is a matter of who demonstrates the need for it, as a result of the assessment process. Or will the services be available as of entitlement, without there being a strict cash limit being placed on the amount of resources that can go into NHS-funded nursing care? I look forward to receiving the Minister's response to such a large group of amendments.

Peter Brand (Liberal Democrat, Isle of Wight)

The hour is quite late. I do not want to repeat yesterday's excellent debate other than to express my disappointment that the Government and the Conservative Opposition have not taken on board properly the message from the Sutherland report. They also failed to take on board three reports from the Select Committee on Health, which set out the difficulties involved in charging regimes that got in the way of team working and patient or client access to services. I pay tribute to my hon. Friend the Member for Sutton and Cheam, who set out the case clearly, and to my hon. Friend the Member for North Devon (Mr. Harvey), who made it clear how an extended scheme could be funded. [Interruption.] The Minister is not happy and says that it was not clear.

I must say that I was not clear myself about the motivation behind the Government's position. In his opening speech yesterday, the Minister bravely talked about the difficult choices that had to be made, and said that resources had to be allocated. He almost seemed to regret that the Government could not, at this stage, accept the majority recommendations of the Sutherland report. The winding-up speech from the Under-Secretary, the hon. Member for Birmingham, Edgbaston (Ms Stuart) implied that the Government's adoption of the majority recommendations would, in some way, impede better patient care.

I find that difficult to accept. In the modern health service, care is delivered by teams, which may be headed by nurses, doctors, social workers, psychologists or physiotherapist, depending on the task involved. One may also define the tasks as being predominantly medical, nursing or social work. However, it is less clear how one defines that activity by the team member who carries it out.

The hon. Member for Macclesfield (Mr. Winterton) made a good intervention about physiotherapists and chiropodists—a subject that has not otherwise been mentioned and may not be relevant to the Bill. However, it is a clear example of what I mean. Most physiotherapy for people who have had strokes is delivered by care assistants under the supervision of a physiotherapist. Would that care be defined as a nursing-type intervention, or as personal care for which people will have to pay?

The definition adopted by the Government, although administratively simple, contradicts the ethos of team membership that we have all tried to encourage. Successive Governments have encouraged that ethos, as have the caring, medical and nursing professions; all agree that people should be trained for a relevant task irrespective of their specific qualification. To base the entitlement on qualification is extraordinarily negative and may have dangerous consequences for the way in which care is delivered, especially in the home.

As the hon. Member for Wakefield (Mr. Hinchliffe) said last night, preventative work done in the home could make a tremendous contribution to keeping people out of institutions. That is clearly what we all want to happen. However, preventative work is carried out by teams—not necessarily with a registered nurse—and the task may be difficult to define as a nursing or personal care task. When the Select Committee asked the previous Secretary of State to define the difference between a medical bath and a social bath, he could not. Nobody can define it, other than those who carry out those functions.

It is important that that issue is addressed. We shall not try to force the Government into reversing their decision about whether the full recommendation of the Sutherland report, or the minority recommendation, is accepted. That is for Government. However, I am worried that the Government are specifying the boundaries through primary legislation. Should the Scottish experiment work out well, and be seen to be cost-effective and clinically effective, it would be a nonsense for the Government to have to return to primary legislation to extend the role of the NHS team beyond work carried out, for instance, by a registered nurse.

I urge the Government to consider redrafting the Bill to meet current requirements, in order to allow flexibility to extend the non-means-tested provision if they find that they have made a mistake. I think that they are making a mistake, which is why my hon. Friend the Member for Sutton and Cheam and I tabled the amendments. They were difficult to table because of the curious nature of the Bill—it does not impose a duty on the NHS and health authorities to provide a service, it merely forbids a local authority to provide a service. That is a strange way of trying to create a care package. I listened with amusement to the Minister pointing out the deficiencies of our new clause in relation to Wales. That is a consequence of the way in which the Bill has been drafted. I want the Government to suggest an amendment to ensure that, once the Bill is enacted, there is not a fixed position. The Government should not have to return to primary legislation to provide a greater service. Clearly, they should not be able to provide a lesser service, but we should provide them with the flexibility to do more if they wish, if the nation can afford it, and if it is seen to be cost-effective.

The other issue, which is reflected in all the amendments—and especially well expressed in amendment No. 306—is that the Government should revisit the issue of how to define nursing care. I have given examples of how extraordinarily difficult that will be. We should consider the institutional setting in which there are no longer specific nursing homes as opposed to residential homes. A residential home that happened to be owned by a state registered nurse might put in all sorts of claims because the proprietor has performed a caring role as opposed to that of an ordinary care assistant. Clearly, that is nonsense. Who determines the kind of nursing, even when carried out by a registered nurse, that qualifies for NHS funding? Is it only nursing care that is provided by an NHS nurse? Will district nurses be introduced to homes? Alternatively, will NHS nurse managers try to run nursing homes, to determine which bit of the nursing can be claimed for, and which cannot? The fact that there are no boundaries to be drawn makes it look administratively easy, but the Government's proposals will, in practice, create an administrative nightmare, which was well described by my hon. Friend yesterday. The bar coding system for community nurses was tried 10 years ago on the Isle of Wight and it failed absolutely, mainly because the software was so useless. I do not want matters to move in that direction.

Our debate probably cuts in three directions. We are disappointed that the Government have not accepted the strong argument put forward in the Sutherland report. We shall not overturn such a decision this evening, but I urge them to create more flexibility under the Bill so that they can accept the majority recommendation if it comes to be regarded as a sensible move. Will they reconsider how they define nursing care, because the definition is not workable as it stands at the moment?

Hilton Dawson (Labour, Lancaster and Wyre)

Clause 48 marks splendid progress, as a result of which residents in nursing homes have regained their entitlement to NHS services, which will be provided according to their need rather than their ability to pay. That will be of significance to thousands of people over the years. It is a great step forward and is something that should have been done a long time ago for elderly and vulnerable people.

Philip Hammond (Conservative, Runnymede and Weybridge)

Will the hon. Gentleman give way?

Hilton Dawson (Labour, Lancaster and Wyre)

I prefer to carry on and make a little progress, after which I shall give way.

I wish to thank the staff of Methodist Homes, who helped to draft amendments Nos. 287 and 288. They very much reflect my worries about personal care, which go back more than 20 years to when I worked with older people and those with disabilities, particularly when they were being admitted to residential care. My principle was founded in those times. Personal care services should be free at the point of use, as the national health service is. There are certain reasons for that. Help with personal care, washing, dressing, feeding and toileting issues is of obvious fundamental help to people. Such assistance enables people to live comfortably, to keep their dignity—sometimes to regain it—and their independence. Personal care services assist people to live and participate in the world, and should be available as of right. Such services should be provided free because they are an important part of holistic care. They can immeasurably improve the quality of people's lives and can offer choice and reassurance. I support holistic services for whole people.

It really is impossible to differentiate between personal care and health care. By definition, personal care requires physical contact with people, sometimes in the most intimate of situations. It falls within internationally recognised definitions of nursing, but includes functions that are carried out by many people who are not nurses. There is a dilemma between free nursing care and means-tested personal care. Given that nursing care is a service that is provided by a nurse, it is bound to lead to significant anomalies. References have already been made to the health or social services bath. The fact is that someone suffering from dementia in a nursing home would get their care free under the proposals whereas someone with dementia—perhaps with almost exactly the same needs—in residential or domiciliary care would not have that advantage.

I congratulate the Government on having the courage and openness to talk the language of priorities and to address with such clarity such a complex and difficult issue. Amendment No. 288 is intended to build on what is being achieved, and suggests, as resources allow—under a Government committed to strong levels of public expenditure based on a strong, sustainable economy—a way to make significant progress towards the goal of making personal care free. We have had a revelation this afternoon: the Opposition have finally balked at the prospect of their black hole in public expenditure and have decided not to go so far down that route. What I propose has nothing to do with the judicious application of another penny on income tax either, it is only to build on the significant achievements that the Government have already brought about.

Peter Brand (Liberal Democrat, Isle of Wight)

I would hate the Committee to be misled: our proposal this time is to soak the rich and put some extra money on those people who earn more than £100,000.

Hilton Dawson (Labour, Lancaster and Wyre)

I enjoyed hearing that.

The amendment provides the opportunity for Government to list those priority conditions—we can talk dementia, Parkinson's disease or Alzheimer's—for which care would be free, whether it were at home or in intermediate care, residential care or a nursing home, regardless of whether that involved or required a registered nurse. I hope that that list will be developed over time.

The amendment would support ordinary life principles and remove any perverse incentive for someone to move into more formal or intrusive forms of care—taking them out of care in the community simply to achieve financial advantage. It consolidates the excellent work of the Bill in removing barriers between health and social services. It would reflect all the work that has been done in pensions policy to encourage people to make their own savings and provision in the knowledge that that would be affected only by the hotel and accommodation costs of long-term care, rather than having to take on nursing care, with which the Bill deals, or personal needs, with which the amendment deals. It would assist the Bill's clear intention to produce a high-quality system of holistic nursing and personal care, meeting assessed needs in a variety of community settings in flexible and imaginative ways. The amendment is in keeping with the spirit of what the Government are trying to achieve through the Bill and the clause. I hope that it can be supported, as it offers a clear way forward to deal with some fundamental issues.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I shall not say too much about amendment No. 288 for fear of doing harm to the cause that it espouses. It sets out a useful alternative route that might be pursued. I congratulate the hon. Member for Lancaster and Wyre (Mr. Dawson) on tabling it and Methodist Homes on the work that they have done.

I want to comment briefly on issues affecting people with dementia and the care of such people. The hon. Member for Lancaster and Wyre is absolutely right on the need to consider care of dementia sufferers holistically. One cannot simply parcel up aspects of their care. Time and a listening ear is often an essential part of that care. Many specialists in dementia care provision, for a variety of reasons, do not necessarily choose a registered nurse to lead the team or even be part of the team providing specialist support for a dementia sufferer. It would be strange and unfair for providers of care in community or residential settings who have constructed teams that are not led by or do not involve registered nurses—but which are nevertheless highly qualified, skilled and trained—not to have access to even the limited free nursing care arrangements under the clause. I at least welcome the possibility set out in amendment No. 288.

I want to speak to amendments Nos. 299 to 303, and try to explain the intent behind them. They are at the heart of debate. In a way, we had a clause stand part debate on the Floor of the House last night. I want to deal with some of the details. Amendments Nos. 301 and 302 make changes to those sections of current legislation that allow for charges to be made for personal care services, provided under section 21 of the National Assistance Act 1948 in respect of residential services. Those sections are also listed in section 17 of the Health and Social Services and Social Security Adjudications Act 1983. I do not want to keep repeating that, although it is an important piece of legislation. Personal social care services, which would be excluded from charges, are defined in amendment No. 303. They are clearly in line with the definition set out in the royal commission report.

Other services, especially those listed as community care services in the context of the National Health Service and Community Care Act 1990, would or could, under the existing discretions in operation, attract charges. They would be subject to the guidance produced by the Department and to decisions by local authorities. Non-residential services involving a care package that includes services of a domestic nature, such as cleaning, shopping, pensions and so on—the tasks that I identified in the royal commission report—would still be charged for. That is accepted by the Liberal Democrats and the royal commission, and provides a demarcation in terms of the way in which charging would operate.

Residential and nursing home services involving a local authority providing accommodation for a person in need of care and attention that is not otherwise available—housing and living costs are included—can still be charged for under the National Assistance Act 1948. We are not removing from the individual the responsibility for picking up living costs, lodging costs and accommodation costs. We believe that those can properly be left to the individual. When a person is accommodated in a nursing home, the nursing and health elements of the care, under amendments Nos. 299 and 300, would be met by the NHS and therefore free at the point of use, by virtue of the National Health Service Act 1977.

I do not pretend that the amendments were lovingly crafted by my hon. Friend and me; that would be misleading. However, I want to give credit where it is due. The Social Policy and Information Network has spent much time working on such matters and has involved 17 organisations in trying to reach a statutory basis, without the benefit of the full resources of the Department and parliamentary counsel to help draft amendments. It has provided a workable basis for implementing the recommendations of the royal commission.

Amendment No. 299 would establish in primary legislation that the duties of the Secretary to State to provide nursing care were extended to those individuals in residential nursing home settings. The amendment to section 3 of the National Health Service Act 1977 would establish that nursing services provided in nursing homes or residential settings fell within the duties of the Secretary of State. The aim of that proposal is to ensure that nursing care is the responsibility of the NHS and that the social care package purchased by local authorities does not include any elements of nursing care.

John Hutton (Labour, Barrow and Furness)

I am listening carefully to what the hon. Gentleman is saying. He talked about free personal care. Has his party worked out precisely how it would quantify the amount of personal care that a person might receive in a residential care home or a nursing care home? How will that be identified? Will it be worked out on the basis of a flat-rate payment to such people, or does he expect the amount of hours of personal care that each person receives to be properly recorded and identified?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I am genuinely puzzled by the Minister's question, not least because of the firm foundation on which we are basing our amendments. The royal commission makes it absolutely clear that the whole process of assessing need for personal care is just that; an assessment process. I shall refer later to the importance of having a statutory basis for the assessment process. Undoubtedly, needs-led assessment is essential.

Yesterday, in response to an intervention, the Minister made the point that the Government's nursing care proposals are also needs led and that no cash limit is being set on them. Presumably, the Government are envisaging a form of assessment procedure to enable that to happen. We, too, want an assessment procedure.

John Hutton (Labour, Barrow and Furness)

It is important for it to be clearly understood that the Liberal Democrats are proposing that, for example, one hour of personal care—or six, 10 or 12 hours of personal care—will have quantified. The hon. Gentleman is rejecting funding his party's proposals through a flat-rate payment that would cover nursing and personal care costs.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The Minister is suggesting that there is a flat-rate basis to our proposals. In response to questions that I have tabled, the Government have come up with the basis for costing the policy. They say that they take away the amount that is currently spent on a residential care home from the amount that is spent on a nursing home and that that produces a figure of £100 a week, which is what it will cost to provide free nursing care. Is the Minister saying that that is all that will happen? I do not think that he is.

The Minister has said that the figures are not cash limited and that we have a estimate. The reality is that we must start somewhere, and we start from the propositions set out in the royal commission's report of an assessment of need and its costings. Because we cannot be clear about the Government's assessment of unmet need and what the true level of need is until such assessments are made, we cannot say for certain that the amount of money that they put in or that we would need to put in is what would be needed.

John Hutton (Labour, Barrow and Furness)

We have made it clear that we want a proper needs-led assessment to be made for a person's nursing care costs. That will be the responsibility of the NHS. The Liberal Democrats in Scotland want to fund that through a flat-rate payment, which the hon. Gentleman has ruled out.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

As the Minister knows, working groups are to report back to the Scottish Executive by August. They will be advising the Parliament about how to take such matters forward. His colleague, the First Minister, has made it clear that the Executive are intending to implement in full the royal commission's recommendations. That is far as the Scottish Ministers have gone and is a reasonable position for holding this debate in terms of implementing such policy. If I were a member of the Labour party and wanted to implement the policy, I would expect officials to furnish me with more detail. The way in which we have framed the amendments provides an adequate basis for testing where the Government stand on the matter and the Bill. That is what the Committee is supposed to scrutinise, unless we have changed the procedures and Committees are now intended to scrutinise the Opposition.

Amendment No. 300 relates to the definition of nursing care. The amendment would include those services delegated by a registered nurse to be undertaken by a suitably qualified non-registered nurse. It picks up on the concerns expressed by the hon. Members for Lancaster and Wyre and for Runnymede and Weybridge about who is providing the care. That is an important concern that has been brought to the attention of all members of the Committee by the Royal College of Nursing and many others.

The hon. Member for Runnymede and Weybridge quoted from the RCN brief, from which I would also like to quote.

``At present, nursing care is provided free on the NHS to people in hospitals and their own homes, but is means-tested in nursing homes. This means that the only group of people who have to pay for their own nursing care are frail, vulnerable older people.''

The fault line in the Committee lies between those who are prepared to accept a continuation of that means-testing arrangement and those who reject it as unfair and inequitable.

The RCN provides a useful set of case studies to show how the measure might stand in practice. One such case study involved a Mr. Martin, aged 75, who is cared for in a nursing home.

``He has had a heart attack and stroke and has furred arteries. He has symptoms of Parkinson's disease. His prostate has been removed, and he uses a catheter. He needs help in moving around. During a typical half-day shift, Mr. M needs the following kinds of care . . . which is always delivered by a registered nurse:

Administering medication—Mr. M's pulse must be taken regularly because of the nature of his medication . . . Changing catheter . . . Re-ordering drugs.''

Then comes a long list of tasks undertaken in most circumstances, which would not be free in the context of the Bill. Those tasks can be carried out by an NVQ level 3 health care assistant, and include:

``Attending to hygiene needs . . . Checking urine pH levels and administering bladder washouts . . . Changing abdominal dressing . . . Checking vulnerable areas . . . for pressure sores . . . Evaluating bowel function and intervening if necessary to prevent constipation . . . Assisting with all eating and drinking, to maintain healthy diet and fluid intake''—

and so on.

Those tasks would not be provided free under the clause before the Committee, but they go to the heart of an individual's dignity. They are not tasks that individuals would choose to have done for them, if they had the knowledge, will or strength to undertake them for themselves. That is why the RCN and many others are worried about the definition that the Government are seeking to impose, and why we have tabled amendments Nos. 299 and 300.

The hon. Member for Runnymede and Weybridge made an important point about nurse shortages and the impact that they may have on the Government's intentions to have a nurse-led assessment procedure for their policy of free nursing care. From work done by the RCN, we know that there is an anticipated shortage of some 57,000 registered nurses over the next four to five years. Out of the United Kingdom Central Council's total pool of nurses, some one in four nurses will reach retirement age over the next 10 years. We know that the average retirement age is 55, so those problems of shortages will become intense, if not severe, over the next five to six years.

The Government do not have enough nurses and will not be able, in my judgment—and in others' judgment, judging by the literature—to find sufficient nurses from abroad, not least because the demographic problems of our nurse work force exist elsewhere. We are competing with other health services that offer far more attractive packages to persuade our trained nurses to go abroad.

John Hutton (Labour, Barrow and Furness)

Will the hon. Gentleman explain how his proposals would allow the NHS to recruit more nurses?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The problem that I am outlining—and which the Minister does not seem to want to address—is that even if there is extra money, it will be difficult to achieve the recruitment that the Government want over the next few years. It will be hard to fill the extra 2,000 head count number of nursing positions that will be created over the next few years because of the demographic profile of the nursing pool in this country. Even with the best will in the world—so far I think 7,000 extra nurses have been attracted to this country in a single year—unless the level of recruitment from abroad is significantly increased, there will be a shortage. If the NHS is to grab all the extra nurses needed to meet the Government's laudable targets in the NHS plan, where on earth will the extra nurses needed to deliver free nursing in the private and voluntary sectors come from?

Peter Brand (Liberal Democrat, Isle of Wight)

Is it not true that if our proposals—or the amendment tabled by the hon. Member for Lancaster and Wyre; or the amendments tabled by the hon. Member for Runnymede and Weybridge—were accepted, the NHS could recruit more nursing assistants, train them within a nursing team and deliver the very service that all parties want?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

My hon. Friend makes a fair point. The logical destination of the policy that the Government are espousing will probably be that that blurring will have to take place to allow it to work at all. Of course nurses must be an important part of that—our amendments provide a statutory basis for nurse assessments—but a compelling argument has been made by Members on both sides for the need for multidisciplinary approaches to assessment: the bringing together of health and social care assessments, so that we have not different approaches but a seamless assessment as well as a seamless service. Everything that the Government are doing in this area is unpicking that seam and creating two services again by sustaining the divide.

My final point on amendment No. 300 relates to health care and our concern about charges that are already being collected for NHS services. A survey undertaken earlier this year found that one in three care homes for elderly people were paying extra for GP services. The research covered a number of charitable bodies: the Association of Charity Officers, the Occupational Benevolent Fund Alliance and voluntary organisations involved in caring in the elderly sector, such as Voices. The survey found that extra fees ranged from more than £150 per resident to an average retainer fee of around £41 per annum per resident. Those sums are being paid by residents in nursing and residential homes for services already paid for through NHS capitation fees, which is a cause for concern. I hope that we can get clarity, which is the purpose behind paragraph (2)(b) in amendment No. 300.

The amendments are intended to implement the purpose behind the royal commission. We have taken specifically from the royal commission the definition of intimate care—the touching of the person. If the Government are not prepared to accept that—and so far they have not been, although it is the equitable basis on which the issue should be resolved—I hope that the Committee will be persuaded by the amendments tabled by the hon. Member for Runnymede and Weybridge. The Government have taken the view that if people are wealthy but sick, they will pay for their care. We take the view that if they are wealthy, they should contribute to the care of all, whether they be rich or poor. That is the difference between the Liberal Democrats and the Government: we do not want simply to penalise the sick rich, but think that taxation is the way to redistribute wealth, and that wealth can be used to maintain social justice through the health care system.

John Hutton (Labour, Barrow and Furness)

This has been a full and comprehensive debate, and I pay tribute to all Members who have spoken. There is disagreement on the matter—that is clear—but no one should question anyone's motives, or the compassion and concern that Members on both sides rightly feel about improving the health and well-being of older people in our society. We have a disagreement about the best way to do that. We have made no secret of our view on such matters, including the choices and priorities that any Government have a responsibility to address as they respond to important issues affecting the future of our society.

We all know that we are living in an ageing society. Before too long, all of us in this Committee—some sooner than others—will have to address those issues in our own lives. We have set out a principled, well-argued case for going down a different road from that suggested by the royal commission. The royal commission did a great deal of important work, and we are grateful to all of its members. However, we have a different way forward. I shall say more on that in a moment.

I want to do two things in responding to this wide-ranging debate. First, I want to address the issues of principle raised by Conservative and Liberal Democrat Members. Secondly, I want to deal with the particular issues raised in the amendments discussed this afternoon.

It strikes me, however, that one thing has been missing from this debate. The debate has followed a traditional line—within two minutes, we were all in our bunkers, firing from our fixed position—and there was no discussion of the wider responsibilities of the NHS in funding continuing long-term health care. About 10 per cent. of residents of nursing homes in England currently have all of their care costs—including personal care and accommodation costs—met by the NHS. According to the guidelines, those people need to be under the supervision of a consultant, specialist nurse or other member of the NHS multidisciplinary care team. The NHS therefore has responsibilities to fund personal and nursing care, as well as long-term care costs, which we discharge currently. I accept, in the light of the Coughlan judgment last year, that there is a need for the national health service to look carefully at continuing health care guidelines, and we are doing that. We shall introduce revised guidelines when that work is completed.

However, there has been a falseness about some of the argument today. Nursing care and personal care have been polarised. The attack from Liberal Democrat Members in particular was that the NHS should have a wider responsibility to meet all the care costs associated with those in long-term residential care, whose needs, in the widest sense, are broadly comparable to those in hospital receiving health care. We completely lost sight of that group of people in today's debate. They were lost sight of in yesterday's debate, too. The issue has been presented starkly and slightly inaccurately to suggest that the NHS has no existing responsibilities for meeting personal care costs, and that the solution proposed by the Liberal Democrats would introduce for the first time an NHS responsibility to meet the personal care costs of people in long-term residential care. That is not so, for reasons that I have outlined: 10 per cent. of those in nursing care currently have all of their costs, including personal care costs, met in full by the state.

It was argued yesterday and again today—the Liberal Democrat view—that the Government should try to provide a solution that will treat the person who is in long-term residential care in as broadly similar a way as possible as a person who is in hospital. In fact, the continuing care guidelines address that issue. I accept that there is an argument about those guidelines in the light of the Coughlan judgment. As I said, we are considering the issues carefully.

The other issue that it is important to address—Conservative and Liberal Democrat Members have made great play about the definition of nursing care under the clause—is the accusation that we have somehow not acted on or taken into account the recommendations of the royal commission in relation to nursing care. The suggestion is that we have chosen a different definition of nursing care than that proposed by the royal commission. I think that the hon. Member for Sutton and Cheam said yesterday that we had done so in the meanest and narrowest way possible. I absolutely refute that allegation. I do so not from the rhetorical position of a Minister who is bound to say that anyway, but on the basis of what the royal commission proposed. In that respect, I pointed out many paragraphs of the royal commission's report to the hon. Gentleman during our debate on the Floor of the House yesterday. I challenge him to find in the royal commission's report a definition of nursing care that includes care provided by a health care assistant. He will have plenty of time over the next hour or so in which to do so, and he can come back and tell us where it is.

Paragraph 6.22 of the royal commission's report states:

``At present, if a person receives nursing care—that is care which involves the knowledge or skills of a qualified nurse, either in a nursing home or a home which is registered to provide both nursing and residential care—he or she has to pay for the nursing care as part of the home's fees''.

It is clear to what that refers—care provided by a registered nurse. When other parts go on to deal with the anomalies of the system, it is clear that they are referring to registered nurse care. The only definition that appears in the royal commission's report was that proposed in the minority report, which again referred to the skills of the qualified nurse.

We have tried to take those issues into account, as well as the anomaly and injustice that the royal commission rightly identified, and which others before it recognised too, that it is wrong for people in a residential care setting to have to pay for the services of a registered or qualified nurse when they would not have to pay for those services in any other care setting. Our definition is wider, not narrower, and goes beyond the definition proposed in the minority report by the two commissioners who signed it, in that it provides a more expansive definition of what nursing care involves.

Philip Hammond (Conservative, Runnymede and Weybridge)

I put it to the Minister that the expression

``care using the knowledge and skills of a qualified nurse''

could embrace a health care assistant operating under the supervision of and with power delegated by a registered nurse, a circumstance that is, regrettably, probably more common than we would like, but which recognises the reality of the manpower problem that the nursing profession faces.

John Hutton (Labour, Barrow and Furness)

I can only tell the hon. Gentleman that we have tried to take into account the royal commission's clearly expressed anxieties about the injustice of people in a care setting paying for the services of a qualified nurse. That is the anomaly that was identified. It is that anomaly that the costings and estimates produced by a good friend of mine, Chai Patel, and by others for the royal commission tried to quantify and deal with.

It is unfair for the Liberal Democrats to suggest that the Government's solution is the least that we could have done. I reject that absolutely. We have tried to consider the issue in the light of the royal commission's recommendations, and we have acted on what we understand to be its anxieties and those of others about the problem.

I reject the argument that the hon. Gentleman has advanced. He said last night that he thought that the Bill was a mean response from the Government. It is not. We genuinely want to remove the anomaly in the charging arrangements, and we are doing so. It was clear from what he said last night that he does not have a word to say about the Bill being a good step forward, because he does not believe that it is. He nods his head; he does not believe that the Bill is a sensible way to proceed. I believe that he is fundamentally wrong. If he is so opposed to the Bill, I assume that he will vote against the clause, which will make free nursing care available to residents in England for the first time. I look forward to seeing how he will vote on the matter.

In clause 48, we have not pushed to one side the royal commission's recommendations but have taken them into account. We have also provided a clear definition of what we are providing and the certainty that the hon. Member for Runnymede and Weybridge, and perhaps the Liberal Democrats, have requested in relation to the definitions.

It is important to provide absolutely clear definitions and a clear boundary in relation to who pays for what under the arrangements. The alternative is not one that any of us would want to embrace—confusion, uncertainty and a lack of clarity about who has responsibility for funding which element of a person's long-term care.

With the greatest respect, none of the amendments, including that tabled by my hon. Friend the Member for Lancaster and Wyre, would provide what Opposition Members have requested, which is greater clarity, certainty and precision in the definitions. For that reason, among others, I shall be asking my hon. Friends not to support them.

Philip Hammond (Conservative, Runnymede and Weybridge)

Does the Minister accept that, because of differences in the labour market for nurses in different parts of the country, he is in danger of creating a postcode lottery in which the amount of care that is eligible under his proposals will vary from place to place and be determined by whether it is possible to recruit and employ registered nurses to undertake tasks that may otherwise have to be done by health care assistants?

John Hutton (Labour, Barrow and Furness)

No, I do not accept that. The hon. Gentleman is the architect in his party of the postcode lottery of care.

Philip Hammond (Conservative, Runnymede and Weybridge)

The Minister is reinforcing it.

John Hutton (Labour, Barrow and Furness)

No, I am not. We are now dismantling such matters from the NHS. We were asked questions on the Floor of the House today that were not connected directly with the issue of nursing care, but about access and availability to new drug treatments. Without rehearsing such arguments, I must say to Conservative Members that they had nearly 20 years in which to sort out the random accessibility and availability of important drugs and treatment in the NHS, and they did not do anything about it. We have tried to resolve such issues with the National Institute for Clinical Excellence and others.

Peter Brand (Liberal Democrat, Isle of Wight)

Perhaps I can bring the Minister back to the matter before us this afternoon. He is narrowly defining nursing tasks, which would fit in better with the minority report than with the report of the royal commission on long-term care. Should the time come when nursing assistants become members of the RCN, which is being talked about, they would enter a register that gives them a professional qualification. Would they then meet the criteria that the Minister is so keen to stick to? I am concerned about the nursing task, not the exact level of qualification of the person carrying it out.

John Hutton (Labour, Barrow and Furness)

All Governments must bear in mind such issues and consider the position if matters change. Our definition is not task-based.

Peter Brand (Liberal Democrat, Isle of Wight)

That is the problem with it.

John Hutton (Labour, Barrow and Furness)

With respect to the hon. Gentleman, it is a better solution than that which he and his hon. Friends are proposing, which is a list of tasks, some of which would be funded by the taxpayer and some of which would not.

Peter Brand (Liberal Democrat, Isle of Wight)

Will the hon. Gentleman give way?

John Hutton (Labour, Barrow and Furness)

No, I shall not give way. The hon. Gentleman has had long enough to develop his arguments. I hope that he will allow me to develop my response to what he has been saying, after which I shall give way to him.

I hope that the hon. Gentleman will understand my argument, although I am not sure that he will. However, I shall try once more. His proposals would not remove the boundary issues and the disputes about who pays for what, which he and his hon. Friends are trying to resolve. I am not criticising him, because he was fair in making it clear that, under his proposals, people would be means-tested for their long-term residential care. Certain elements would be removed from the means test, which is what his party believes in.

From what the hon. Gentleman said, however, about how personal care needs would be assessed, it is clear that he envisages a process that would identify certain tasks. He prayed in aid what the royal commission said about such matters, in that it regards a list of tasks as being the definition of personal care. That will raise difficult issues about what is or is not on the list. I am not saying that the issue cannot be resolved. Of course, it can, but it will not be free of difficulty.

Many people will consider the hon. Gentleman's list of tasks and say that it is not complete and should include other factors. He will face the same allegation that he has made against me—that his proposals are miserly and that his party has used a narrow definition. His proposals would raise many complex issues. I do not believe that they have been resolved fully by the royal commission, and nor is that the view of the Scottish Executive who want to re-examine the definition of free personal care. I shall be interested to see how such an argument unfolds among members of the Liberal Democrat party in England and whether they take a different view from their colleagues in Scotland.

Will the hon. Gentleman's party propose a flat-rate contribution towards the cost of long-term care that will cover nursing and personal care or does it want what he described yesterday as a barcode process, whereby individual tasks and the time to be spent on them must be identified, after which we will end up with a fixed price to be met by the NHS?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I want to take the Minister back to his comments about avoiding having a list of tasks. Clause 48 refers to a registered nurse and involving

``(a) the provision of care, or

(b) the planning, supervision or delegation or the provision of care,

other than any services which, having regard to their nature and the circumstances in which they are provided, do not need to be provided by a registered nurse.''

Presumably, to make that system work a list of tasks will have to be published to show what a nurse does not have to provide. Will the Minister accept that such a list will have to be published to enable that to happen?

John Maxton (Labour, Glasgow Cathcart)

Order. The Minister can have an hour to contemplate that. I am suspending the sitting for one hour for dinner. I shall resume the Chair at 8 pm, unless there is a Division in the House, in which case the Committee will resume at 8.15 pm.

Sitting suspended—

[continued in column 435]

The rest of the debate is in Hansard.