Health and Social Care Bill

Public Bill Committee, 17 January 2008.

Further written evidence to be reported to the House

Stephen O'Brien (Conservative, Eddisbury)

On a point of order, Mr. Conway. I thank the Minister for his two letters that we have received this morning, one on the cost of the new commission and one on complaints handling, which relate to an undertaking given in our proceedings. However, I was a bit disappointed that, while the second letter on complaints identified my question about the backlog of complaints—column 123 of the Official Report—it did not contain the figures. It stated merely that the backlog has now reduced significantly and the Healthcare Commission is now meeting the service level agreement target agreed with the Department of Health to close 95 per cent. of cases within 12 months. I should be grateful to receive the figures in respect of the backlog. Given that we may be debating schedule 5, depending on progress, either today or Tuesday, I should appreciate the Minister providing us with those figures during this morning’s sitting. I ask him, through you, Mr. Conway, whether that might be possible.

Derek Conway (Conservative, Old Bexley and Sidcup)

Fortunately, Chairmen of Public Bill Committees are not responsible for the content of ministerial replies. That is a great relief to us all. I am sure that the Minister may want to refer to the matter during this morning’s proceedings, but it is not a point of order for the Chair. I am sure that he will deal with it in due course.

Clause 17

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 17, in clause 17, page 8, line 41, leave out ‘may’ and insert ‘shall’.

Derek Conway (Conservative, Old Bexley and Sidcup)

With this it will be convenient to discuss the following amendments: No. 18, in clause 17, page 9, line 3, at end insert—

‘(2A) The code of practice must make reference to—

(a) screening for admissions,

(b) bed occupancy, and

(c) the frequency and extent of cleaning in healthcare premises.’.

No. 19, in clause 17, page 9, line 7, at end add—

‘(3A) The Secretary of State shall publish each revision of the code.’.

No. 20, in clause 17, page 9, line 7, at end add—

‘(3A) The Secretary of State shall report to Parliament in respect of those cases where—

(a) regulations made under section 16 are breached, and

(b) the Code of Practice under this section is breached.’.

No. 21, in clause 18, page 9, line 13, at end insert—

‘(c) lay the draft code before Parliament.’.

Stephen O'Brien (Conservative, Eddisbury)

The amendments build on the themes that were discussed in the debate on clause 16 to ensure effective combating of health care associated infections and clarity in reporting that to Parliament. The Health Act 2006 makes provision for the Secretary of State to issue a code of practice relating to the prevention and control of HCAIs. It was updated most recently on 11 January 2007. As the explanatory notes say, the new code will replace that code and extend it to all regulated activities, not only NHS bodies.

Amendment No. 17 queries why the drafting stands at “may” not “shall”, given the Government’s apparent commitment to the code of practice. That is such an easy one that I am hoping the Minister will get us off to a flying start this morning and accept it, without any cavil. Amendment No. 18 would include in the code action particularly on screening, bed occupancy and the frequency and extent of cleaning in health care premises.

During the oral evidence sessions, Anna Walker from the Healthcare Commission noted that the extra powers given to the commission would not have prevented the outbreaks of infection at Maidstone and Tunbridge Wells NHS Trust, a point that will be important to the discussions on future clauses. However, she noted that the key was to

“get proper infection control processes in place.”

She also said:

“if we find a trust which is cavalier about putting the right processes in, then the penalties will be helpful”,

and that the reality is

“usually more fundamental than that—the team does not understand the processes it needs in place to solve that problem.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 24.]

Hence, it is crucial that the code of practice gets matters right and that the Committee supports the amendments.

It is reported on page 16 of the current code that it makes provision for screening for methicillin-resistant Staphylococcus aureus. The policy should make provision for admission screening, which should include screening of all elective admissions by March 2009, and for screening of emergency admissions at presentation as soon as it is practical. However, as we know, the Secretary of State has axed the Prime Minister’s promise of screening for clostridium difficile. The Committee may recall that on 6 January on “The Andrew Marr Show” the Prime Minister said:

“If you go into hospital you will get screened by next year for MRSA or C. difficile”.

That was later reported on the BBC under the headline, “Brown pledges superbug screening: All patients entering NHS hospitals in England will be screened for MRSA and clostridium difficile”. No one from the Government sought to correct that story, but two days later on 8 January 2008, in the document “Clean, Safe Care: Reducing Infections and Saving Lives”, the Secretary of State’s infection control strategy reports on clostridium difficile that

“Screening for colonised patients is inappropriate (most potential cases would not be identified, and it requires a stool sample), and colonisation without symptoms is not considered to increase risk of transmission”.

The Secretary of State is obviously admitting that the Prime Minister was wrong. The code makes no provisions for bed occupancy other than saying that on the movement of patients:

“There should be evidence of joint working between the ICT and the bed managers in planning patient admissions, transfers, discharges and movements between departments and other healthcare facilities. Where necessary, ambulance trusts may need to be involved in such planning.”

That sounds like a handbook for shepherding patients. We have all heard anecdotal stories of patients being kept in ambulances to control hospital admissions and targets. In April 2001 in response to the Select Committee on Public Accounts the Government said:

“Health Authorities should plan bed numbers in order to achieve a bed occupancy rate of no more than 82 per cent, in 2003-04.”

After that, the bed occupancy rate went up. It is still at 84.5 per cent. and in many parts of hospitals it is way above that. In the past year, the Government have reduced the number of acute and general beds in the national health service by the largest proportion since 1982. We have seen a reduction of 6,000 acute and general beds, which has taken us down to a figure of 127,000. However, the NHS plan said that there would be an increase of 2,000 beds to take the figure up to 135,000.

Last year, The Independent said that the Department had conducted a review suggesting that reducing bed occupancy to a maximum of 85 per cent. would save 1,000 cases of MRSA a year. Just last week we heard that the Worcestershire royal hospital is running so close to capacity that it has had to cancel operations, send some patients home, send others to the downgraded Kidderminster hospital and enter into punitive negotiations with the independent sector treatment centre there. The hospital in Worcester runs with an occupancy rate that is consistently above 90 per cent.

The third factor that I have outlined should also be considered: the frequency and extent of cleaning in health care premises. As I have discussed on a number of occasions during the Committee’s proceedings, the Prime Minister’s commitment to deep clean appears to be something of a whitewash. Not only have fewer than 50 hospitals actually had the deep clean, but it is being paid for from primary care trust lodgements—the top-slicing that the Government imposed on local health economies to solve their own central financial crisis. The deep clean is important, but it is the maintenance of a clean environment through ongoing cleaning, particularly the search and destroy approach to HCAIs, which we have committed to, that would really bring down MRSA rates.

The current code of practice imposes processes and managerial structures on cleaning, rather than focusing on the nature of cleaning itself and the outcomes required. Given that it is often the refrain of those who make rather obtuse points on the matter, I wish to state that the cleaning services at Maidstone and Tunbridge Wells NHS Trust were not outsourced; they were absolutely in-house.

Amendment No. 21 will formally give Parliament sight of the draft code, which hon. Members from all parties will want the Government to get right. As the points I have outlined show and as we discussed on Tuesday, that is an area where the Government are failing. Parliamentary debate will introduce a more effective strategy and a clear priority focus for parliamentarians and the legislature on one of the key problems in our constituencies at the present time.

Amendment No. 19 is self-explanatory. If the Secretary of State revises the code, it must be published. Amendment No. 20 is similarly self-explanatory and would give hon. Members an early warning of health care associated infection issues in hospitals across the country and in our constituencies.

As the Committee will be aware—it was widely reported on the news last night and this morning—Leslie Ash yesterday settled for £5 million, although there were some reports that it was just £500,000, with the Chelsea and Westminster hospital over her methicillin-sensitive Staphylococcus aureus suffering. Yesterday, The Times reported that legal arguments had begun in the Court of Session in Edinburgh. Judges are to decide whether the case brought by 71-year-old Elizabeth Miller, a great grandmother who contracted the MRSA superbug in hospital, should proceed to a full hearing. She is suing NHS Greater Glasgow and Clyde for £30,000, which could pave the way for hundreds of other sufferers to claim millions of pounds in damages.

Therefore, the key issue is whether, by virtue of these amendments, we would be able to give the necessary priority, focus and parliamentary scrutiny to the revised code of practice, which is required to be published by the Government. The Government themselves proclaim that they are focused on dealing with the matter. We would demand that of any Government given the desperate situations that arise as a result of hospital associated infections.

In looking at this group of amendments, I hope that the Minister will agree that screening, bed occupancy, and the frequency and extent of the cleaning in health care premises, in particular a search and destroy strategy, are key to effective control of health care associated infections. I hope that he will agree with Anna Walker that the problem is more often to do with teams that do not understand the processes that are needed to combat health care associated infections than a cavalier attitude towards putting in the right processes.

Also, why has the Secretary of State reneged on the Prime Minister’s commitment to screen for C. difficile? Why are bed occupancy rates still so high under this Government and why is no mention made of those rates under the current code of practice? Why should right hon. and hon. Members not be formally alerted when the regulations under paragraph 16(5) of the code are breached? How regularly would the Minister expect such breaches and, we would argue, reports to happen? I have high expectations that the Minister will be persuaded by those arguments and accept our amendments.

Sandra Gidley (Liberal Democrat, Romsey)

I understand the motivation behind these well-intentioned amendments. I want to query a few points on amendment No. 18 because it attempts to detail what should go into the Bill. I have some concerns about the list, not because of what is in it but because of what is not. I do not believe that the list is comprehensive. For example, new paragraph (c) refers to the frequency and extent of cleaning in health care premises, but there is no mention of personal hygiene standards or the responsibility of the individual health care workers or even the antibiotic policy which, if we are talking about C. difficile, is just as important, if not more so, as cleanliness. At the moment, I feel that if those aspects are in the Bill, undue emphasis could be placed on the procedures and processes outlined in new paragraph (c), and we might not be able to tackle the overall picture. With the emerging nature of resistant infections, situations may arise which require a change in practice. We need to retain some flexibility so that we can face existing and future challenges.

Stephen O'Brien (Conservative, Eddisbury)

I accept the hon. Lady’s fair question. In principle, I think that she is very sympathetic to what we are trying to achieve here. It is clear that a Bill that does not contain anything of this nature would look rather weak because it leaves everything for others to decide. It would be far better not to seek to be comprehensive, because things will move on and change. At this stage it is absolutely clear that the three things cited are fundamental and unlikely to change, and therefore, rather than have a comprehensive list, it is important to identify a focus of activity to allow for prioritisation. At the moment, in terms not only of the Bill but of the way in which the Government are dealing with the matter in general, this issue is not sufficiently high on the agenda, and this an attempt to raise it. I accept that the amendment could have been more comprehensive, but the danger of that is that one then ends up trying to include everything, rather than prioritising.

Sandra Gidley (Liberal Democrat, Romsey)

I thank the hon. Gentleman for his explanation. I am still not entirely convinced. His timing was impeccable, as I was just about to sit down and draw my remarks to a close.

Ben Bradshaw (Labour, Exeter)

The hon. Lady is right. As the hon. Gentleman says, it is important that we get these codes right, but as the hon. Lady pointed out, scientific advances and knowledge change continually; we are constantly developing new ways of tackling the challenges, including health care acquired infections. We all hope that some way down the track, if we continue the welcome, significant and sustained fall in health care acquired infections that the Government have achieved in recent years, we will not be worrying so much about this issue, but there may be something else that poses challenges to the health service.

The problem that I have with the amendment tabled by the hon. Gentleman is the same as that expressed by the hon. Lady. The terms of the amendment would place us in a straitjacket, which in the medium and long term could be unhelpful. I expect that it was tabled as a means for having a run-around on some of the Opposition’s old chestnuts about health care acquired infections.

Angela Browning (Conservative, Tiverton and Honiton)

Will the Minister give way?

Ben Bradshaw (Labour, Exeter)

I will give way to the hon. Lady in a second; I just want to put one or two things on the record to correct errors made by the hon. Gentleman. The figure on the deep clean is 80 per cent. of hospitals, and it is already well under way. The £57 million sum for the deep clean is new money for hospitals, out of the £270 million of new money announced in the comprehensive spending review. One example of the unhelpful straitjackets that the amendments would create for the health service concerns bed occupancy rates. As I am sure the hon. Gentleman is aware, the latest research on bed occupancy shows that, although up until 2003-04 there may have been a correlation between high bed occupancy rates and MRSA, since then bed occupancy is “statistically insignificant.” That is a good example of how changes in practices and experience show that putting ourselves in a straitjacket, as the Conservatives are asking us to, could be quite unhelpful. That is true of the guidance and the issues discussed on Tuesday, such as the requirement for the Secretary of State, rather than the independent Healthcare Commission, to report to Parliament about every single little thing that is going on. As the hon. Member for Romsey rightly says, such an approach would mean putting oneself in a rigid system of being required to do things that are no longer important.

Angela Browning (Conservative, Tiverton and Honiton)

I am somewhat shocked to hear the Minister use the expression “old chestnut” in respect of hospital-acquired infections. I am a member of the Public Accounts Committee. On two separate occasions, his permanent secretary appeared before it and if he had used that expression to it, he would certainly have been put in his place. The permanent secretary will return to the Committee within the next year on this very subject. It is far too serious a subject for the Minister to describe as an “old chestnut.” He has the option of bringing the contents of the amendment back on Report, redrafted by his officials. If he feels that this issue will disappear in a few years’ time—I hope that he is right—something approaching a sunset clause would be appropriate. In other words, let us put it in the Bill because it is important, not an “old chestnut”, and if in five or 10 years it is no longer regarded as necessary, the wording of a sunset clause would mean that it would die a natural death as the need for it disappeared. This issue is serious, and I hope that the Minister will talk to his permanent secretary about his experience before the Public Accounts Committee. I doubt that he thought that it was an “old chestnut”.

Ben Bradshaw (Labour, Exeter)

The hon. Lady, inadvertently I am sure, misunderstands my point. I was not saying that the issue of health care acquired infections is an old chestnut—it is an extremely serious issue and that is why it is in the Bill, and why the Government have a £270 million programme to tackle it. It is why I welcome the significant and sustained falls in health care acquired infections that we have achieved in recent years, and I hope that that continues. However, it would be wrong to issue guidelines that are so specific that they are inflexible with regard to the new, independent Care Quality Commission, which we are setting up to help us continue to drive down infection rates.

The “old chestnuts” that I referred to are some of the issues that are regularly raised by the Opposition, based, I believe, on a misunderstanding or an out-of-date understanding of our progress on health care acquired infections. I gave the example of bed occupancy. I am not suggesting for a moment that it is not a serious issue; it is. The Government are tackling it, and we are making welcome progress. There has been a 10 per cent. reduction in MRSA in the last year, a 7 per cent. reduction in C. difficile, and a 32 per cent. reduction in health care acquired infections overall since the base year of 2003-04. I want that progress to continue, but it will not be helped by putting the new independent body into the straitjacket provided by these amendments.

Anne Milton (Conservative, Guildford)

I welcome the Minister’s reference to the science, and I would be grateful if he gave us the source of the information about bed-occupancy rates. One of the problems with the treatment of health care acquired infections is that precious little science is used. It will be interesting to see what happens next year—when there will not be £270 million, and when PCTs and trusts will have to make their own decisions on where they spend their money—and whether it is felt that the deep clean was worth it and should be prioritised.

Ben Bradshaw (Labour, Exeter)

The research that I referred to is a public document published in December—the McCormick report. However, the hon. Lady is absolutely right. I do not want to detain the Committee by going through the entire list of things that have been happening and are happening to help us make this progress, but it is important that we have sustained investment. That is why we welcomed the comprehensive spending review settlement, which is very good as far as our Department is concerned and constitutes a 4 per cent. real increase in spending in the health service for each of the next three years. I am not sure whether the Conservative party is still committed to meeting that spending.

Returning to the substance of the amendments, I do not think that they would be helpful. I understand why they were tabled—to give the Opposition a chance to repeat the inaccuracies that were presented to us on Tuesday—but they would be unhelpful in our efforts to continue the sustained progress.

Stephen O'Brien (Conservative, Eddisbury)

I suspect that the rest of the Committee, if they would wipe the smiles of their smug faces, would be equally disturbed and appalled by the Minister’s performance. We could do without smug party points. We are dealing with the deaths of 270 people at Maidstone and Tunbridge Wells that could have been avoided with better procedures. That was a disgraceful performance by the Minister, and I am shocked.

Judy Mallaber (Labour, Amber Valley)

Is the hon. Gentleman seriously suggesting that it is disgraceful to try to promote part of what is being done to deal with this very serious issue? Every member of the Committee agrees that is a very serious issue; is it really disgraceful to point out where we have made, and are committed to continuing, improvements, and to put that on the record?

Stephen O'Brien (Conservative, Eddisbury)

We all wish to see the best measures to tackle this. What we do not like is the smug approach taken by a Government who know that they have an inbuilt majority, and who therefore think that the entire procedure of scrutinising the Bill is a waste of time and rather wish that they were not here. Far from it. We are absolutely committed and very sincere about the amendments and we shall be voting on them. This is not a game to get some happy little comments on the record. It is a serious question of trying to get the best performance and prioritisation for dealing with this issue in parliamentary terms. This has become serious because of the tone and attitude of the Minister in responding to a matter of this seriousness. We should recognise, on the record, that that should be repelled.

Richard Burden (Labour, Birmingham, Northfield)

May I clarify the hon. Gentleman’s intentions? If I understood his reply to the hon. Member for Romsey, he acknowledged that his amendments may well be defective.

Stephen O'Brien (Conservative, Eddisbury)

Not defective.

Richard Burden (Labour, Birmingham, Northfield)

Ah—so the hon. Gentleman thinks that the list in amendment No. 18 is complete and comprehensive, and that is why he wishes to press it to a Division. If the amendment is defective, he should withdraw it; if it is not, he should press it to a Division. Which is it?

Stephen O'Brien (Conservative, Eddisbury)

I am sure that the hon. Gentleman was listening when I responded to the hon. Lady. I said that the purpose of the amendment was not to be comprehensive, but to highlight and prioritise matters on which Parliament must focus.

Of course, the amendment would give flexibility. We have the Report stage and the Bill will be scrutinised in another place, so the Government could recognise that they can tweak it. If they do not tweak it, and if they choose simply to resist and to make the measures generic and unspecific, that raises questions about the prioritisation of, and focus on, the requirement for accountability to Parliament. There should at least be a tie-in with the Public Accounts Committee, as my hon. Friend the Member for Tiverton and Honiton so ably pointed out, so that there is annual scrutiny, not least in the person of the permanent secretary. We need to tie-in the prioritisation of parliamentary accountability rather than relying, as we will under the Bill, on an Executive who seem not to take the measure with the seriousness that it deserves. They seem to think that the intention behind the amendments is partisan point scoring, which it quite patently is not. I rest my case.

Sandra Gidley (Liberal Democrat, Romsey)

I think that the hon. Gentleman would be best advised to rethink the matter on Report. I am concerned about unintended consequences. For example, if we are too prescriptive about bed occupancy regulations, we could create a conflict. When a person is in an emergency situation, will a hospital official say, “We cannot accept you because we would be in breach of the bed occupancy regulations”? That person could die not because of MRSA, but because they had to be moved to another hospital. Whatever capacity any Government build into the health system, those situations will arise. The hon. Gentleman must think through all the consequences of the amendment. It is well intentioned, but we need to ensure that the situation I described does not arise.

Stephen O'Brien (Conservative, Eddisbury)

I am grateful to the hon. Lady, but the amendment states:

“The code of practice must make reference to”.

So the measure would not be exclusive; rather, the intention is to draw attention to prioritisation. Furthermore, if the science says that bed occupancy rates are indeed leading to MRSA, she cannot surely be suggesting that a hospital should accept a person if that would lead to their getting MRSA. On the contrary, the whole point of the science is that it should be a matter of judgment if someone who should otherwise obviously be accepted into a hospital is almost certain to contract MRSA.

Sandra Gidley (Liberal Democrat, Romsey)

Will the hon. Gentleman give way?

Stephen O'Brien (Conservative, Eddisbury)

I am not going to give way because the principle at stake in the amendments is clear. They would prioritise what the code of practice refers to. They would not provide an exclusive or comprehensive list, and they would not restrict flexibility, but we do not want the Government to feel that they can simply be trusted to do the right things at the right time, because their track record so far is deeply disappointing.

I am disappointed with the tone and substance of the Minister’s reply, so I shall press the amendment to a Division.

Clause 18

Stephen O'Brien (Conservative, Eddisbury)

I note that in clause 18, both the phrase

“consult such persons as the Secretary of State considers appropriate”

in subsection (1)(b), and the phrase

“substantial change in the code”

are obviously very general statements, as is

“maintaining the power vested in the Secretary of State.”

It would be helpful, as we consider this clause, if the Minister could briefly outline what the force of the statement in subsection (1)(b) is on the consultation. What would he expect a substantial change in the code to be, in terms of degree?

Ben Bradshaw (Labour, Exeter)

This leads on rather nicely from the debate that we have just had, because it might have been helpful to say that the codes of practice will be consulted on and debated fully. That will give a chance to hon. Members and anyone who has a view to say what should be in the code. However, this is standard language used in any legislation for consultation. Clearly, the Secretary of State will consult people whom we currently consult. That provides us with the flexibility that we, and the Liberal Democrats, believe is so important in dealing with the ever changing challenges and in taking on board new ways of dealing with those challenges. That is what we intend to do.

Clause 19

Stephen O'Brien (Conservative, Eddisbury)

It would be useful for the Committee if the Minister could let us know how regularly the current regulators issue and re-issue such guidance, and how often he expects the CQC to publish such guidance. There is an obvious burden of bureaucracy at issue for providers here, and some indication would be helpful as we consider the clause.

Ben Bradshaw (Labour, Exeter)

I cannot answer that question now, but I will try to do so by the end of the morning sitting.

Clause 20

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 76, in clause 20, page 10, line 19, at end insert—

‘(c) consult and have regard to the advice of the service user panel.’.

Derek Conway (Conservative, Old Bexley and Sidcup)

With this it will be convenient to take new clause 2—Duty to establish and maintain service user panel—

‘It shall be the duty of the Commission to establish and maintain an advisory panel to be known as “the service user panel”.

(5) The service user panel shall be comprised of such members as appear to the Commission to represent the views and interests of patients, service users and the public.

(6) The service user panel shall have such functions as determined by the Commission.

(7) The functions of the service user panel as determined under subsection (2) must include contributing to and advising the Commission upon:

(a) the annual plans of the Commission for inspections, reviews and special reviews, and inquiries,

(b) guidance on compliance with registration requirements,

(c) indicators to measure the compliance of registered organisations with the registration requirements,

(d) methodologies for performance measurement, and

(e) methodologies for inspection.

(8) The Commission may request the service user panel to help it to ascertain, from time to time, the opinions and level of satisfaction of patients, service users and the public with regard to the activities to which the Commission’s functions relate.

(9) The service user panel may establish and maintain such arrangements for consultation with patients and members of the public as agreed with the Commission as relevant and appropriate to the carrying out of the functions conferred on it by the Commission.’.

Stephen O'Brien (Conservative, Eddisbury)

New clause 2 seeks to establish a service user panel, and amendment No. 76 is consequent on that, making sure that the CQC consults such a panel in formulating guidance under clause 19. Naturally, that builds on the discussions that the Committee has already had on service user involvement under clause 2 and amendments Nos. 2 and 134. The Committee can refer back to the points that were made in column 146 and following, rather than me restating them into the record. I hope that that is a helpful reference. I highlight again that, in response to the consultation preceding this Bill, the Department stated that

“many responses supported the greater input from patients and users of services proposed in the consultation document... The Care Quality Commission will be a user focused organisation”—

and I emphasise—

“recognising that it can only do this effectively by involving them.”

Which? notes in its submission:

“It is a startling omission that the new body charged with overseeing the quality of health and social care will not have a duty to take patients’ views into account in the course of their work.”

Again, I would encourage the Minister to heed the Conservative party’s commitment to Healthwatch, a national consumer voice for patients and service users.

The service user panel can provide a high-level mechanism by which the commission can receive advice from service users. Plans, processes and methodologies that are relevant to the quality of care, the experience of service users and the successful engagement of service users generally can be developed in co-operation with an expert group on such matters. Patients and service users will be reassured that there is a voice for their interests at a high level. Moreover, the panel can seek wider views as required, which will further build confidence in the regulator.

Ofcom has a consumer panel that plays a similar role, and it convenes a regular consumer forum of interested parties such as consumer and disability organisations. The Office of the Health Professions Adjudicator, under clauses 101 and 102, and the Council for Healthcare Regulatory Excellence, under clause 108(4), are both given duties to consult the public, including bodies that seem to them to represent the views of patients; there is no such duty for the commission. The service user panel can at least act as a proxy for such wider consultation.

The Minister made clear in an earlier debate that the Department expects the CQC to establish, under schedule 1, paragraph 6, a panel similar to that proposed in the amendment. That will give the commission the duty to establish at least one advisory panel. No doubt, that commitment will be used to call the CQC and the Minister to account when the CQC begins operating.

The Minister noted that he was still reflecting on the issue, and he undertook to come back to the Committee with clearer thinking on the subject. We hope that he will include Local Involvement Networks in the Bill—I am sure that the Committee remembers that discussion—and consultation with patients and service users.

Does the Minister agree that the voice of patients and service users is key to generating effective guidance on compliance with requirements? Does he agree that the new clause and amendment No. 76 would give him the precise vehicle that he seeks, and that he will therefore be minded to accept them?

Ben Bradshaw (Labour, Exeter)

As I have indicated in previous sittings, I am still reflecting on the question of public and patient involvement. In respect of the Opposition’s affection for the new national body Healthwatch, there is nothing to stop LINks forming a national network if they wish, but we are trying to move away from the top-down approach from Whitehall to a more bottom-up approach. We would certainly welcome that development. It is very much up to LINks, as autonomous bodies, to decide if that is what they would like to do.

As I have indicated, part 1 requires the commission to have regard for the people who use the services in everything that it does. As the hon. Gentleman acknowledges, the Bill already requires the commission to establish an advisory committee under schedule 1, and it also provides for the commission to establish further committees or sub-committees, such as one that comprises solely service users. They might have specific functions or a more general function, allowing the commission to decide how best to seek input from different representative groups.

The problem with the new clause is that it proposes that the commission should determine the functions of the panel, while specifying a number of functions that must be included. Again, there is a debate to be had between flexibility and inflexibility. The new clause seems to be giving the commission the flexibility to decide how it uses the panel, but we believe that the commission can use a group to look at specific matters. It is important that a representative group should have the freedom to express its views in relation to any of the commission’s functions, rather than being restricted to functions specified in the clause, and any other matters that the commission determines. That is reflected in schedule 1.

Clause 43 requires the commission to publish a document on the frequency of reviews, and clause 75 requires it to publish its programme of special reviews and investigations. As with all the commission’s functions, it must have regard to the views of the public when preparing those documents. On the basis of those reassurances, I invite the hon. Gentleman to withdraw the amendment.

Stephen O'Brien (Conservative, Eddisbury)

I am grateful to the Minister for restating that he continues to reflect on these matters. It would therefore be premature to press the amendment at this stage. I think that we can with some confidence look forward to something being produced on Report, given what he said. However, I caution the Minister against being a little too ready to be contemptuous of the concept of Healthwatch. It may well be instructive that he wants to give that rather more thought when he is reflecting on these matters. He will recall that the establishment and coming together of LINks was something that was won in another place on another Bill, on which my noble Friend Earl Howe led. Therefore, the Minister needs to be a bit careful about assuming that he has found the magic recipe for the bottom-up approach, rather than the Whitehall, top-down approach. Healthwatch is intended to be part of an organic, bottom-up approach. Having offered those cautions, but in the positive context in which the Minister is reflecting on these matters, I beg to ask leave to withdraw the amendment.

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 23, in clause 20, page 10, line 25, at end insert—

‘(c) lay the draft guidance before Parliament.’.

The amendment simply calls for the Secretary of State to lay before Parliament the draft guidance on compliance with requirements. Therefore, this is simply a matter of the Minister letting us know whether he thinks that Parliament should not have the right to debate such guidance.

Ben Bradshaw (Labour, Exeter)

As with a similar amendment proposed to clause 18, I appreciate the Opposition’s concern with parliamentary scrutiny of these issues. Again, however, I am not wholly convinced that this proposal would represent the best use of parliamentary time. Standards for better health, against which the Healthcare Commission judges NHS bodies, are not currently laid before Parliament; nor are the national minimum standards that both the Healthcare Commission and the Commission for Social Care Inspection use to determine whether those health and adult social care providers that they register are fit to remain registered.

The clause includes specific provision requiring the new commission to consult on the guidance, or on any substantial revisions to it. The hon. Member for Worthing, West (Peter Bottomley) commented on Second Reading that there is a point at which one has to trust on such matters and the Secretary of State should be relied on to carry out an open and genuine consultation. I argue that we should be equally satisfied that we can rely on the commission to consult such people as are appropriate when developing guidance under the clause. The guidance will then be published. It will be a public document available for anyone with an interest to read. That is a reasonable arrangement. For that reason, I invite the hon. Member for Eddisbury to withdraw the amendment.

Stephen O'Brien (Conservative, Eddisbury)

In the light of those comments, I beg to ask leave to withdraw the amendment.

Clause 21

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 24, in clause 21, page 11, line 17, leave out subsection (3).

I am sure that hon. Members on both sides of the Committee realise that this clause relates to a slightly different concern. Amendment No. 24 would delete subsection (3), which states:

“A failure to observe any provision of a code of practice under section 17 or guidance under section 19 does not of itself make a person liable to any criminal or civil proceedings.”

That removes any legal sanction or teeth behind the provision.

The explanatory notes to the Bill state:

“Although a failure to comply with either the Code of Practice or the Commission’s own guidance does not in itself constitute and offence, they may both be used as evidence in criminal or civil proceedings as examples of what is expected behaviour in the areas they cover.”

Writ large across the amendment are those 270 patients who died from superbugs as a result of the appalling hygiene standards of the Maidstone and Tunbridge Wells NHS Trust, 90 of whom died from C. difficile.

In its report into the deaths at Maidstone and Tunbridge Wells, the Healthcare Commission estimated that

“of the total 345 patients who died in the relevant periods who had been infected with C. difficile, there were approximately 90 deaths where C. difficile was definitely or probably the main cause of death...C. difficile definitely contributed to the deaths of approximately 145 out of 345 people, and probably or definitely to approximately 270 out of 345 people.”

Both the Health and Safety Executive and Kent police investigated whether they could bring charges against senior managers. I think that I am right in saying—I am more than happy to stand corrected if it is not the case—that neither the HSE nor Kent police have yet drawn any conclusions, or brought the matter to a conclusion. That is relevant because the force of this clause may be to limit what the commission can and cannot do.

The Committee will also be aware that the chief executive, Rose Gibb, was told that she would get a pay-off of at least £250,000 when she quit. Although the Secretary of State stepped in to block that payment, the Department has not yet confirmed whether he was successful. The Sunday Express,on 30 December 2007, reported the following:

“Sources at the Department of Health conceded it is ‘likely’ that she will eventually receive at least some of the money when legal arguments are finished.”

Two health care assistants have been sacked from the trust. One staff nurse and another health care assistant have been disciplined, but will remain. In light of that and similar cases, should not the Committee leave the door open for failure to observe the provisions of the code of practice on health care associated infections to be justiciable or triable in court? Does it not say something about the lack of seriousness with which the Government are approaching the issue, and their lack of faith in their own code and in our NHS, that they may be unwilling to do so?

If amended, this clause would enable an individual to sue for negligence on the basis of illness or injuries arising from the failure to observe the code of practice on HCAIs. This issue is crucial to understanding the import of the question whether the clause should stand as it is, thereby removing the teeth of any form of civil or criminal legal sanctions. For example, has the Secretary of State been successful in blocking Rose Gibb’s £250,000 pay-off? I am sure that each and every one of us would regard it as a scandal if she received a penny piece, in the light of what took place. Where are the police investigations up to, and why should such failings not end up in court? If they are not to end up in court, why should we engage the police’s time at all? Surely, the whole point would be to have internal inquiries or a commission inquiry.

If the commission has no teeth, what will be the sanctions? As we all know, it is very rare that one needs to refer to legal sanctions, if they exist, because everyone knows whom they are dealing with—the commission or the police—and where the case may end up. That, in itself, has an extraordinarily powerful effect, without ending up in either civil or criminal proceedings. If those sanctions are not available, I can well imagine that people will be able to run rings round this provision. I hope, therefore, that the Minister realises that our amendment would give to the commission, which the Government are putting into statute, the teeth that it currently lacks, in order to ensure that it is effective. Rejecting the amendment will create problems over time. It would be genuinely instructive to keep in mind the events at Maidstone and Tunbridge Wells and, in particular, Rose Gibb and what might have happened as a result of the failures that she unfortunately allowed to happen.

Ben Bradshaw (Labour, Exeter)

This clause and the amendments do not relate to employment contracts or redundancy arrangements, so I shall not comment on them.

I welcome the hon. Gentleman’s support for the new enforcement powers and I share his desire for them to have teeth. However, the amendment is perhaps based on a misunderstanding of, or a blurring of the distinction between, guidance and regulation. The amendment would give statutory force to the guidance, but it is the regulations that will have statutory force. The guidance will inform the regulations, which we will consult on, as I have indicated on a number of occasions. The problem with giving statutory force to guidance is that it is not scrutinised by this House, which is why subsection (2) of the clause clarifies that, as is common, guidance can be used in court as evidence of what could reasonably be expected to constitute compliance with the legislative requirements. Those are what have the legal force, because they are scrutinised by Parliament. That is in the interests of fairness and justice to the accused.

I have made it clear that I do not think the amendment appropriate. The Bill and regulations made under it will set out all the legal requirements that the services must meet. Clause 31 makes it an offence to contravene or fail to comply with those requirements. It would be inappropriate, therefore, to make it a criminal offence not to comply with the guidance, when it will be an offence not to do so with the regulations, which will be informed by the guidance.

Stephen O'Brien (Conservative, Eddisbury)

We are genuinely struggling with this point, although I am grateful to the Minister for seeking to address it. Often the easiest way for the Opposition to scrutinise a Bill is simply to ask why something has been drafted in a certain way. However, we really are wrestling with this piece of drafting. Interestingly, during consideration of previous clauses, I did not ask why the Government have used in the Bill the words, “health care associated infections”. The word “associated” seems to have become a substitute for “acquired”, which is more commonly used; indeed, the Minister used it earlier. When one sees a word moved like that, one must question what is meant by it. It could not have happened by accident, because those who draft these Bills are highly expert wordsmiths and lawyers. It is right, therefore, that we question this.

I was very interested in the Minister’s answer. He spoke about how removing clause 21(3) would give guidance statutory force, when it should be, in effect, best-practice advice—I think that that is what he suggested—and about the resulting inflexibility. I can understand that in relation to clause 19; however, clause 17 refers to a code of practice. The Minister, therefore, seems to be saying that the code of practice is no more than guidance. This point has been central to our discussions this morning: are we really saying that, because this is such a framework portmanteau Bill—drafted in generic terms and hugely dependent upon the publication, scrutiny and acceptance of the regulations in order to bring into play the true force of law—the code is to be no more than guidance? In that case, why is there a distinction between “code” in clause 17 and “guidance” in clause 19? If there is no difference, should we not just call them one thing?

Alternatively, should we not recognise that the code is likely to need some statutory underpinning, so that breaches of its provisions are justiciable? That would give the commission enforcement powers that would carry the credibility that we all want. We discussed whether the list was sufficiently comprehensive and flexible under previous amendments, the essence of which was to put parliamentary prioritisation in the minds of all of us who are concerned about the matter. Here, the amendment would give legal earnest to the operation of the commission, using its code. There is differentiation between the words “code” and “guidance” in the two clauses, and if the Minister is going to resist the amendment because he believes that a breach of guidance should be subject to statutory legal proceedings, my point about that difference remains valid. I am not satisfied on the point, and I think that it will be appropriate to press the amendment.

Ben Bradshaw (Labour, Exeter)

Was the hon. Gentleman looking for a response, or does he wish to press the amendment come what may? I do not want to detain the Committee.

Stephen O'Brien (Conservative, Eddisbury)

It would be helpful if the Minister responded, because I might be able to judge whether to press the amendment further.

Ben Bradshaw (Labour, Exeter)

First, the words “code” and “guidance” are equivalent in this case. We are using the word “code” in one instance for consistency and continuity with the existing health care associated infection code of practice. The hon. Gentleman asked why we have changed the wording from “health care acquired” to “health care associated”. It is partly to broaden the definition, because there have been cases, for example, of visitors to hospitals acquiring infections, which is nothing to do with their own health care. The infection is not acquired through their health care but associated with health care in general. I hope that that helps the hon. Gentleman.

Stephen O'Brien (Conservative, Eddisbury)

In that case, because we now have it on the record that “code” and “guidance” are indeed the same thing in this case, and that they are not intended to be justiciable either civilly or criminally, I do not need to press the amendment to a Division. The issue is left standing and perhaps needs to be thought through, in the absence of knowing the remit of the regulations that will be the statutory underpinning giving rise to legal proceedings. I beg to ask leave to withdraw the amendment.

Clause 25

Stephen O'Brien (Conservative, Eddisbury)

On amendment No. 88, it would not be in order to do more than note that it was not selected because it was outside the scope of the clause. However, I hope that the Committee accepts that it would be sensible to flag up our thinking the clause. I believe that we will have the opportunity to debate the matter later, but I want to signpost that warning notices would also be triggered by recommendations arising from complaints. At the moment, we have not seen that, and I hope that we can return to that issue later in the Bill. We thought it relevant to this clause, but we were unable to frame a suitable amendment to force debate, so we will leave it to another time. I hope that that is a useful signpost for the Minister.

Clause 26

Stephen O'Brien (Conservative, Eddisbury)

There is some discussion to be had on this clause, because it concerns urgent cancellation, which is done on application to a justice of the peace. We will have a longer discussion on the role of justices of the peace when we debate part 3 of the Bill, and my hon. Friend the Member for Guildford will lead for us on that.

I assume that the clause is the legislative framework for the much trailed 24-hour closure of hospitals. The Committee should know that by agreeing to the clause it will be supporting that power. The Department briefed on this on 23 October, before the Bill was published. On 24 October, there was a written ministerial statement, which The Times and The Daily Telegraph both reported. They reported that the Secretary of State was angry that the Healthcare Commission did not step in to try to protect patients or alert the Government to the scale of the problem when it first made its report.

A draft of the Healthcare Commission report into the problems at Maidstone and Tunbridge Wells arrived at the Department on 3 May 2007, but no action was taken by the Department at that point. This is a useful opportunity for the Minister to explain why. The Times further reported:

“The Health Secretary is also expected to reveal in a Commons statement that the new inspectorate will have powers to sack doctors and trust chief executives immediately”.

The Secretary of State already has the power to suspend board members, but the previous Secretary of State did not use that power when she received the Healthcare Commission report in May. Furthermore, there was no mention of the Care Quality Commission having that power in the ministerial statement of 24 October, by which time we had a new Secretary of State. I cannot see a reference to the power in the Bill. No doubt the Minister will point it out to us if I have missed it.

The Committee should also note Anna Walker’s response to the hon. Member for Birmingham, Northfield when she gave evidence to the Committee. She said that the new powers to close wards “are not necessary” and that

“we do not overwhelmingly need them.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 23, Q 32.]

However, she also said that

“we will use them if they are there.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 23, Q 31.]

I am sure that the hon. Gentleman will remember that exchange, and I hope that he will tell the Committee what insight he gained from that line of questioning, which we thought interesting.

In the same sitting, Ian Kennedy said that

“anybody contemplating that you close a major accident and emergency unit...is not in a world that I recognise.”—[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 24, Q 33.]

In his statement to the press on the day of the Committee hearing, he said that

“it would be cavalier to close an element of a major public service without offering patients any alternative.”

Having highlighted those issues, I hope that the Minister will confirm to the Committee whether that is the current arrangement and whether it provides sufficient checks and balances.

With half an eye to the next clause, will the Minister also tell us how the Human Rights Act 1998 would be applied in circumstances in which urgent cancellation might breach aspects of that Act? For example, the cancellation of a nursing care home’s registration might lead to the quick eviction of its residents. One can imagine such a scenario, and it is our job to work out how the rights of patients in such circumstances would interleave with the protection that must be afforded if something has gone sufficiently wrong that a notice withdrawing registration has been received. I appreciate that this point may be a touch legalistic, as I am not sure that if I had a relative in a home that had had its registration removed, I would be very keen for that relative to stay there a minute longer, because I expect that there would be good reason for such a move. However, if the relative were very frail, the speed of eviction might have to be balanced, so the issue of rights would be relevant.

We need to ensure that people’s choices in those circumstances are not limited by the absence of alternatives. There may be practical considerations for people who live in remote areas where there is only one care home for many miles, but equally often people do not have caring relatives or friends who can look out for them when such difficult urgent decisions need to be made.

I hope that the Minister will be able to deal with the question of how the power will help the CQC to deal with superbugs in hospitals, given the remarks made on behalf of the Healthcare Commission in oral evidence. Is the power to be granted on the basis of exigency rather than need? I hope that the Government are not trying to sound tough in the light of recent events. We saw that the Department had briefed The Times to the effect that the CQC will have the power to sack doctors and trust chief executives immediately; but at the moment we struggle to see where that power is set out.

Jeremy Wright (Conservative, Rugby and Kenilworth)

Does my hon. Friend also consider that there may be an issue relating to appeals? If an order for the closure of, for example, the type of residential facility that he has described is made with immediate effect, so that residents are moved out almost immediately, and an appeal is won 28 days later, there may be a difficulty for those who own and run the facility.

Stephen O'Brien (Conservative, Eddisbury)

I am grateful to my hon. Friend—I had not thought about that. It is an important point, because the purpose of the 28-day appeal period is to give people an opportunity for fairness and justice; yet such a situation would not arise unless matters were judged to be so serious that most people would say that it was time to get out. It is a matter not only of fairness and justice for the providers or owners of the care setting, but of the rights of, and fairness and justice for, the patients. They are often so frail and vulnerable that the prospect of a move from surroundings that have become familiar—this may be particularly important for people with dementia, who hold on to the physical aspects of their surroundings more than other things—can be sufficiently dislocating to cause their condition to decline. We would all want such effects to be avoided. My hon. Friend’s point is extremely interesting and important, and I expect that the Minister will respond to it.

Ben Bradshaw (Labour, Exeter)

I imagine that we shall shortly come to a more general discussion of the powers, so I shall not dwell on that subject now but speak instead directly to the clause, which gives the Care Quality Commission power to apply to a justice of the peace for an order urgently to cancel the registration of a service provider or manager. It sets out the tests that must be met, and requires the commission to notify a number of bodies when it applies for such an order. We all recognise that there may be exceptional occasions when such action may be necessary. The condition for taking such a drastic course of action would be that there was serious risk to a person’s life, health or well-being.

It is important to deal with concerns about notifying the relevant bodies quickly when such an application is made, because, as the hon. Member for Rugby and Kenilworth has pointed out, arrangements will need to be made to look after any patients or clients who may be affected. That is why the provisions require the commission to notify, where appropriate, the relevant local authority, primary care trust or strategic health authority monitor. I do not want to engage in a debate about the powers now, because we shall come on to that in a moment, but I remind Members of the evidence given to the Committee by Dame Denise Platt. She recognised, as we all do, that some of the new powers in the Bill may not, as the hon. Member for Eddisbury said, be appropriate for acute or accident and emergency wards. However, CSCI welcomes the new and broader range of powers because at present it is faced with the stark choice of nothing or closure.

These are permissive powers, but that does not mean that the Care Quality Commission will use them. As Anna Walker indicated, it may not need to use them, although they may be useful as a deterrent and she would not want not to have them. Dame Denise appealed to us not to change the powers or weaken them in any way, because they would be useful in the social care context, and that was what was important to her.

Clause 28

Stephen O'Brien (Conservative, Eddisbury)

We had a probing amendment on this clause, which was understandably not selected. It would be helpful if the Minister told the Committee, either now or later, what the form of a tribunal established by section 9 of the Protection of Children Act 1999 is and why it has been chosen, as opposed to other models.

Ben Bradshaw (Labour, Exeter)

I cannot do so now, but I will try to do that by the end of the sitting.

Clause 29

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 199, in clause 29, page 15, line 37, leave out from ‘offence’ to end of line 38.

Derek Conway (Conservative, Old Bexley and Sidcup)

With this it will be convenient to discuss the following amendments:

No. 200, in clause 29, page 15, line 38, at end insert—

‘(2) A person guilty of an offence under subsection (1) is liable—

(a) on summary conviction, to a fine not exceeding £50,000, or to imprisonment for a term not exceeding 12 months, or to both;

(b) on conviction on indictment, to a fine, or to imprisonment for a term not exceeding 12 months, or both.

(3) In relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003 (c.44), the reference in subsection (2)(a) to 12 months is to be read as a reference to 6 months.’.

No. 201, in clause 30, page 16, line 13, leave out from ‘liable’ to end of line 14 and add—

‘(a) on summary conviction, to a fine not exceeding £50,000, or to imprisonment for a term not exceeding 12 months, or both;

(b) on conviction on indictment, to a fine, or to imprisonment for a term not exceeding 12 months, or to both.

(5) In relation to an offence committed before the the commencement of section 154(1) of the Criminal Justice Act 2003 (c.44), the reference in subsection (4)(a) to 12 months is to be read as a reference to 6 months.’.

No. 202, in clause 31, page 16, leave out lines 18 to 22 and insert—

‘(2) Subject to subsections (3) to (5), those regulations may not provide for an offence to be triable on indictment or to be punishable with imprisonment or with a fine exceeding level 4 on the standard scale.

(3) Subject to subsection (4), in the case of regulations under section 16, those regulations may provide for an offence to be triable summarily only or either summarily or on indictment and for an offence to be punishable with a fine or imprisonment or both.

(4) In case referred to in subsection (3), those regulations may not provide for an offence to be punishable with—

(a) imprisonment for a term exceeding 12 months, or

(b) in the case of summary conviction, a fine exceeding £50,000.

(5) In relation to summary conviction for an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003 (c. 44) the reference in subsection (4)(a) to 12 months is to be read as a reference to six months.’.

Stephen O'Brien (Conservative, Eddisbury)

The amendments would empower the CQC to seek stronger sanctions against providers who commit offences. Amendments Nos. 201 and 202 would amend clauses 30 and 31 respectively. They arise from Anna Walker’s comments when giving oral evidence. She said that

“at the end of a process like that, there is often considerable public anger and concern about what has gone on and I wonder whether some of the penalty issues need to be recognised in that context. The maximum fine allowed under the new legislation would be £50,000. There is an issue about public concern which that measure does not meet”.——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 25, Q36.]

The point was also made that not only is a wider spectrum of sanctions needed; it will be important to have sanctions suitable for the body in question, given the range of providers that the CQC will register—from small care homes to giant hospitals. The Minister alluded to that point in his response to the last clause stand part debate. There is a world of a difference between what might need to be done in relation to an accident and emergency hospital facility, compared with a small care home.

The amendments would ensure that there is potential for more serious offences to be tried in the Crown court, rather than receiving a maximum fine of £50,000 from magistrates. I therefore ask the Minister, why is the Crown court not available in the pursuit of sanctions? Does he agree with Anna Walker that stronger sanctions need to be available to the CQC? How will these sanctions compare with the current sanctions?

Ben Bradshaw (Labour, Exeter)

With your indulgence, Mr. Conway, I will respond briefly to a question that was asked earlier by the hon. Gentleman, to save time and to avoid the danger that I may forget to do so. In fact, he asked two specific questions: first, why this particular tribunal? The Care Standards Tribunal currently hears cases under the Care Standards Act 2000, so we are using that for continuity purposes. Secondly, he asked for the specific figures on outstanding complaints with the Healthcare Commission. In July 2006, the number of open cases was 5,180. In July 2007 it had gone down to 2,298, and I understand that the commission is now meeting its service level agreement targets on complaints. I hope that is helpful to the hon. Gentleman.

On sanctions, I was slightly puzzled by that bit of Anna Walker’s evidence. On the one hand, she seemed to imply that the new enforcement powers were not needed; then, in the quotation given by the hon. Gentleman, there was also an implication that the fines were not heavy enough. I am not clear on the matter, but I hope to discuss it informally with her, which might enable me to reach a better understanding.

The £50,000 figure is a ten-fold increase on the status quo, and it is for a single offence, so there is the potential for multiples of £50,000. It is not that the maximum fine that could be levied against a hospital is £50,000—if there is more than one breach of the regulations, that figure could multiply. As was acknowledged earlier, the Healthcare Commission is not the only organisation that has a locus in monitoring patient safety; there is also the Health and Safety Executive and the criminal law. The hon. Gentleman was right to remind us that criminal investigations are still going on in relation to the Maidstone and Tunbridge Wells incident. That does not mean that hospitals or managers will never be liable for much more serious offences. However, we think that we have come up with a tougher but proportionate suite of penalties and sanctions that suit the role of the Healthcare Commission, that are flexible and that the commission is not forced to use. That should also act as a useful deterrent, because of the damage to reputation that would be incurred by one of those fines or penalties. In light of those assurances, I hope that the hon. Gentleman will withdraw his amendment.

Stephen O'Brien (Conservative, Eddisbury)

This is an area in which it is possible to gain a better understanding of the thrust of what Anna Walker at the Healthcare Commission was seeking to achieve, not least in the light of informal discussions that the Minister may have with her. I ask that if those informal discussions result in any proposals, the Minister discuss them with us first, before consideration on Report, so that we can see whether we can find a common view. The sanctions, coupled with the enforcement powers, will be vital to ensuring that we can provide the teeth that we all wish to see bear down on bad practice, and to encouraging best practice. With that proviso, I beg to ask leave to withdraw the amendment.

Clause 30

Stephen O'Brien (Conservative, Eddisbury)

I am unclear from the drafting of the clause whether an individual, rather than a corporate person, could be held liable under it. Can the Minister clarify that point?

Ben Bradshaw (Labour, Exeter)

Both.

Clause 34

Stephen O'Brien (Conservative, Eddisbury)

In what circumstances might the register not be made public? Which parts of the register might be hidden through regulations under subsection (3)? I note that the memorandum on delegated powers gives the example of a list of children’s homes. As I am sure we are all aware, the regulations here are under negative procedure, but it would be helpful if the Minister clarified what those circumstances are and gave examples, particularly those that might not be made public under subsection (3).

Sandra Gidley (Liberal Democrat, Romsey)

I have couple of general concerns about the clause. Subsection (1) states that copies of registers must be kept

“available at its offices for inspection at all reasonable times by any person”,

and there is a charge if anybody wants any information from the register. However, in these days of the internet, should not the registers, in the greater public interest, be more publicly available, so that people can access the information when they want to? Doing that would remove a level of bureaucracy. Will the Minister give some thought to that?

Ben Bradshaw (Labour, Exeter)

I entirely agree. We are leaving it up to the commission to determine how it should make the registers publicly available; it should consider the hon. Lady’s suggestion carefully.

On the question raised by the hon. Member for Eddisbury, we are talking about some particularly sensitive services for children and vulnerable adults that it would not be appropriate publicly to give details about. However, we will set out the circumstances where information should not be provided in the regulations. That will give us a chance to explore the matter in a little more detail.

Clause 35

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 27, in clause 35, page 17, line 35, at end insert—

‘(aa) to the relevant Local Involvement Network and cooperative group of Local Involvement Networks,’.

In my desperate attempt to ensure that we kill the left-hand column of the selection list by the time we have to close, I should mention that amendment No. 27 would include LINks in the list of bodies to be notified of certain matters. Although that is no doubt possible under subsection (1)(d), it would be useful for it to be included in the Bill. I remind the Committee of the debate on LINks, but I will explicitly mention now CSCI, which in its submission at paragraph 43 stated:

“It would be useful if there were an explicit expectation that the new care provision had a relationship with local involvement networks.”

In the event that the Minister rejects this amendment—I sincerely hope that he will not feel that he needs to or should—I hope that he will add it to his great big box of issues to be reflected on, and come back to the Committee at a later stage with clearer thinking on it.

Greg Mulholland (Liberal Democrat, Leeds North West)

We have already expressed our concern at the lack of public involvement enshrined in the Bill. Although local involvement networks may or may not be the best way to achieve that, at the moment they are pretty much the only show in town, so we support the intention behind the Bill. I look forward to the Minister’s comments.

Brian Jenkins (Labour, Tamworth)

The Minister and I are both aware of the fact that circumstances change over time. Although I may have some sympathy with looking at local involvement, I would not want to prescribe which group is to be involved, in case it ceases to exist during the lifetime of the Bill.

Ben Bradshaw (Labour, Exeter)

They have only just been born, so give them a chance! As I said, I have sympathy with the motivation behind the amendment. However, I go back to the point that we have made on a number of occasions throughout our deliberations about how prescriptive we are regarding the actions of the new regulator. Although I have stated that LINks will have a valid interest in the work that is done, I fully expect the Care Quality Commission to work closely with LINks—not for exactly the same reasons that Members have been mentioned, but for some of them.

It is not necessarily a good idea to prescribe in the Bill that a particular organisation should be involved in and pre-warned of all the actions that the commission is taking, particularly early on in proceedings before fault or guilt has been found. As I indicated in response to discussion on another clause, there certain issues that may have to be handled sensitively, in respect of which it would not be appropriate to inform LINks or anyone else of the commission’s activities.

Although I sympathise with the spirit of the amendment, the Bill as it stands strikes the right balance between keeping the public and LINks informed, while allowing the commission to carry out its work fairly and appropriately.

Stephen O'Brien (Conservative, Eddisbury)

In the light of the Minister’s expressing sympathy but not accepting the amendment, I take that as a “yes” to the matter going into the “I will reflect” box. On that basis, I beg to ask leave to withdraw the amendment.

Derek Conway (Conservative, Old Bexley and Sidcup)

I am afraid that we cannot deal with amendment No. 233 because it is 10.25 and I must suspend the sitting.

Greg Mulholland (Liberal Democrat, Leeds North West)

I beg to move amendment No. 233, in clause 35, page 17, line 38, at end insert—

‘(ba) to the relevant professional regulatory body’.

We are making reasonable progress, but I will try to be brief because we are all keen to get as far as possible next week. Amendment No. 27 introduced an important point of principle, but amendment No. 233 raises an important point of practicality. I hope that the Minister will not use the same arguments against the amendment, unless, of course, he decides to accept it, because it is not about being prescriptive—an issue on which he has commented on various occasions.

The amendment is important in a practical way for two reasons. In layman’s terms—an always useful method of explaining the impact of a Bill—one major effect would be a new, clearer regulatory system for health and social care, with some redefined and refocused responsibilities. Clearly, an important part of that is professional regulatory bodies, most of which support the new and refocused role that they will have. If we are to have a new, joined-up framework, which makes sense for the reasons stated earlier, surely we must include the professional regulatory bodies when a commission issues a notice—be that a notice of decisions or proposals, a warning notice or a notice of procedure for suspension. I appreciate the Minister’s comments about not wanting to be prescriptive, but professional regulatory bodies should be among the organisations that must be informed of such notices if this is to be a genuinely joined-up and effective system. We all know from other areas—from the Shipman case—that when we do not have properly joined-up systems and effective sharing of information, that can lead to issues and problems.

The second reason concerns a potential loophole that I would like the Minister’s views on. Is there not a danger that when an individual who has been issued with a suspension notice moves to a different area, they could slip through the net if the professional regulatory body with an important role in that area is not involved?

Sandra Gidley (Liberal Democrat, Romsey)

I am reminded of a number of practical examples, including one in my constituency whereby a nursing home owner sacked a nurse because of abuse. He took the matter seriously, but we can envisage a case in which an inspector might highlight problems of abuse needing some sort of investigation. In the case to which I refer, the nurse was allowed to enrol with various agencies and work in the next county, and there was absolutely no way of tracking what she was doing. She was later, quite rightly, removed from the professional register.

Jimmy Hood (Labour, Lanark and Hamilton East)

Order. I remind the hon. Lady that this is an intervention.

Greg Mulholland (Liberal Democrat, Leeds North West)

My hon. Friend makes a useful point demonstrating a potential practical example, which is what I am trying to get across. I hope that the Minister understands that practical point and the need for a properly joined-up framework. We would be delighted if he accepted the amendment. One could say that it is absolutely belt and braces, but given that there are still concerns about the regulatory framework for health and for social care, as the Minister has acknowledged, surely it would make sense to include the professional regulatory organisations in this part of the Bill. I look forward to the Minister’s comments.

Stephen O'Brien (Conservative, Eddisbury)

I consider the proposal perfectly sensible and I look forward to the Minister’s reply.

Ben Bradshaw (Labour, Exeter)

The reason why we must resist the amendment is not that it is prescriptive; rather, it is a question of degree. As members of the Committee will have noticed, the commission is required to give notice of action to any people whom it considers appropriate. We would expect that in most circumstances, that would include the relevant regulatory body, but we believe that it is better for that to depend on the particular circumstances, rather than there being a blanket requirement. For example, if a registered manager had received a warning notice for a minor breach that had then been properly corrected, the commission might consider it appropriate, or disproportionate, to have to inform the manager’s regulatory body.

Sandra Gidley (Liberal Democrat, Romsey)

I take the Minister’s point about a minor breach about which it may not seem necessary to inform the regulatory body. However, there are cases where a series of minor breaches might flag up a problem, and surely the professional regulatory body is the ideal place to collate that information. People do not know where to complain when there is a problem. Shipman was a classic example—there were different areas in which concerns had been raised. There needs to be some way of bringing that information together in one place.

Ben Bradshaw (Labour, Exeter)

I accept that, but I still think it best that the Care Quality Commission be left to use its judgment. If there were a succession of breaches, that would clearly ring alarm bells. If we are talking about a relatively minor breach of a registration requirement that had been quickly addressed, it seems unnecessary to put the Care Quality Commission under an obligation. Indeed, there may be some people—care home managers, for example—for whom there is no professional regulatory body. Putting that requirement in the Bill is probably not the best way to achieve the end that I think we all share: that the professional regulatory bodies, where they exist, be informed when they need to be.

Greg Mulholland (Liberal Democrat, Leeds North West)

I appreciate that the Minister did at least come back with different arguments in resisting the amendment. I have a couple of brief points to make. Following those comments I am going to withdraw the amendment, but this is an important issue, which the Minister acknowledged. We should be mindful of this issue during the Bill’s passage and when the new regulatory framework comes into force, and we may need to revisit it in future, with the input of the Care Quality Commission and the professional regulatory bodies. It is better to be safe than sorry, and that is a clear principle, even if that means that minor incidents should be reported. My hon. Friend the Member for Romsey made a valuable point: where there is a series of minor incidents that might be missed, the amendment would increase the clarity of the framework, which is essential to the Bill. It would also provide a safeguard, which is why we tabled it. However, I appreciate the fact that the Minister has listened, and I beg to ask leave to withdraw the amendment.

Clause 36

Stephen O'Brien (Conservative, Eddisbury)

How often does the Minister expects the returns set out in the clause to be made? That question goes to the heart of the burden of bureaucracy.

Ben Bradshaw (Labour, Exeter)

I am afraid that I cannot give that information at the moment; I apologise. The hon. Gentleman asked the same question this morning, I think, and I will endeavour to get back to him on it within the next few minutes.

Clause 37

Stephen O'Brien (Conservative, Eddisbury)

Another matter on which the Minister can help the Committee, whether now or in a few moments’ time, is that of liquidators. I suspect that he would be the first to agree that it would be helpful if the failure regime currently employed by Monitor was in front of both Houses when we consider the Bill and any regulations that may arise from it, particularly given that such regulations are subject to a negative resolution. I hope that he will be equally happy to make that failure regime available to the Committee.

Ben Bradshaw (Labour, Exeter)

The hon. Gentleman is aware that the failure regime is still a matter for discussion; therefore, I am not in a position to provide him with it. However, I can tell him that the time frame he asked about is annual.

Clause 38

Stephen O'Brien (Conservative, Eddisbury)

What is the length of time envisaged to allow a surrogate to take on the responsibility of registration in the case of the death of a registered person, and will that surrogate be liable in the same terms as the original registrant?

Ben Bradshaw (Labour, Exeter)

I am afraid that I will have to come back to the hon. Gentleman on that one, as well.

Angela Browning (Conservative, Tiverton and Honiton)

I had not expected to speak to this clause, but a case with which I have been dealing this morning has prompted me to ask the Minister to consider a particular set of circumstances.

That case—perhaps I should have tabled an amendment as a result of it—involves a learning-disabled woman aged 65 who has been in some form of care or residential care all her life, and who was in residential care in my constituency when the care home closed because of the owner’s age. No one else would take the care home on, so I negotiated with social services and they agreed to move the woman to Hampshire, so that she could live nearer to her only remaining relatives—they did not take on caring for her, although they obviously took an interest. Unfortunately, her carer died in her sleep quite unexpectedly in November, and as an interim measure she went to live with her brother and sister-in-law, who are older than her. Now that she is living with them, the Devon authority paying for her care says that that is where she should stay.

Obviously, I will fight this case through the county council. Is there any way in which we can, in the unfortunate and unexpected circumstance of the sudden death of a named carer, ensure that such an event does not trigger a change to the underlying entitlement to service that the service user had before? Perhaps that is an unfortunate case and I will get a good resolution, but I ask the Minister to consider the context of it. Clearly, Devon county council now sees the death of the carer as an opportunity to reduce its commitment to a lady whom it is paying for out of area.

Ben Bradshaw (Labour, Exeter)

As a fellow Devon MP, I fear that I am well acquainted with the shortcomings of Devon county council, as is the hon. Lady. I am not in a position now to answer for the exact legality of the situation that she describes, but I will endeavour to do so in some other form. It would be for the Care Quality Commission to decide how long a surrogate would have responsibility for registration, rather than for it to be set in stone in legislation.

Clause 39

Stephen O'Brien (Conservative, Eddisbury)

As I am sure the Committee will have noticed, there was an unselected amendment tabled to the clause. In fact the point relating to that can be more sensibly dealt with in a stand part debate.

The memorandum on delegated legislation makes the helpful note that, because the power in the clause will enable the Secretary of State to modify the chapter by statutory instrument in its application to newly regulated activities of a prescribed description, any regulations will be subject to the affirmative resolution. The memorandum notes that

“this is not dissimilar to a Henry VIII power”.

Speaking of Henry VIII, I assure the Committee that, as he was wont to say to his wives, “I shan’t be keeping you long.”

Angela Browning (Conservative, Tiverton and Honiton)

The old ones are the best ones.

Stephen O'Brien (Conservative, Eddisbury)

I have known the saying for years. I have heard it many times, but I have never had the opportunity to use it. I thank the Committee for its indulgence.

To my mind, the provision is a Henry VIII power, which is when primary legislation is amended by statutory instrument. I hope that the Minister can help me, because the provision makes all of part 2 subject to a Henry VIII measure. We are concerning ourselves with primary legislation, so that means that it can all be amended by statutory instrument. My question might show my ignorance of procedure, but does the provision include the potential for repeal?

I am sure that the Minister is aware that Lord Justice Law suggested in 2002 in the Metric Martyrs case that it was unfair to attribute such powers to his late Majesty who reigned 100 years before the civil war and longer, yet before the establishment of parliamentary legislative supremacy. In today’s world, it would be interesting to know the thoughts of the Lords Constitution Committee on the clause. I do not know whether there has been an opportunity for informal or even formal consultation within the Government.

It would be helpful when considering the clause if the Minister could tell the Committee what newly regulated activities he envisages and what changes they might bring to the legislation, accepting that the clause is designed to catch the unforeseen. As an addendum, can he tell the Committee about the provenance of the list under subsection (3)? Given our discussions and those of the Liberal Democrats about not wanting to include in the past certain lists to give priority of identification, such a proposal suddenly seems to veer towards the Minister’s prescriptiveness. I question that as a matter of both consistency and precedent. Will he explain the provenance of the list as it might help us to understand why he has chosen that list, but not the list that we proposed?

Ben Bradshaw (Labour, Exeter)

Clause 39, as the hon. Gentleman has acknowledged, is intended to provide future flexibility so that the system can adapt to changes in the way in which health and social care are delivered. The delivery is becoming more integrated. It is responding to people’s needs, and it is changing as a result of innovation. It is possible that initially primary care will not come within its remit but, as more elective surgery is being delivered in the primary care setting, that change would require the flexibility that we are discussing.

It is also important to recognise that the power to modify the Bill after it is enacted does not apply to the registration of NHS bodies and other providers registered with the new commission from the outset as listed under clause 39(3). We have already made it clear that NHS hospital services would be regulated. Respondents to our consultation put forward convincing arguments for the inclusion of, for example, NHS primary care providers within the regulatory framework. The reason behind the provision is to provide the flexibility that we discussed the day before yesterday in relation to some cosmetic procedures. I do not want to rein in the future flexibility that might be needed.

Anne Milton (Conservative, Guildford)

I appreciate that health care is changing rapidly and that we need flexibility to reflect the results of the changes. I received information from the Patients Association that the chief medical officer has commissioned a report from Joint Commission International, which will be looking at how we accredit and regulate health care organisations. It has suggested that such matters are changing even as the ink is not dry on the Bill.

Ben Bradshaw (Labour, Exeter)

Which is exactly why we need the flexibility that I have just described.

Stephen O'Brien (Conservative, Eddisbury)

As the Minister was going through it, I was hoping for some reassurance about how we had arrived at the list in subsection (3). It occurs to me that something that we have already touched on in earlier Committee proceedings is not included in the list. For instance, for a housing association that produces many homes with Telecare that are not known as care homes, but are known as normal, independent homes that happen to have a lot of Telecare facilities, it would be quite difficult to make that fit into that prescriptive list. I think that it is a fair question, and I am hoping to get an answer.

Ben Bradshaw (Labour, Exeter)

I am advised that subsection (3) is about excluding those registered at the outset.

Clause 41

Sandra Gidley (Liberal Democrat, Romsey)

I beg to move amendment No. 197, in clause 41, page 20, line 6, leave out ‘NHS’ and insert ‘health and social’.

This is a simple amendment. As the clause stands, the Secretary of State is mentioned only in the context of the NHS. We received a lot of oral and written evidence about concerns that the social care function would be lost. It is quite pertinent here to reflect on the words of Sir Ian Kennedy during our first sitting. He said:

“it is my position that ultimately, bringing together health care and social care regulations is desirable because the citizenry do not know, and care less, under what system they are being looked after—they want it to be seamlessly well-organised.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 6.]

We are all aware of areas where the system perhaps comes apart at the seams, for want of a better phrase. I use as an example the case of continuing care. I suspect that every hon. Member in this Room has played a part in trying to secure continuing care funding for a patient. Often, they have Alzheimer’s and have significant health needs, but ultimately, a decision is made by a person or persons unknown that their need is not a health need, but a social care need, so they do not receive NHS funding.

In most cases, it is difficult to see where the division lies. I have had two very similar cases; one could hardly see a difference in the capabilities and illness levels of my two constituents. One received the funding, but the other did not. It was down to the different assessments on the day. Although the Government have made some attempts to improve that, I still think that there is a problem. In the case where the continuing funding was made available, the care was given in a nursing home, which is not part of the NHS. Although the constituent was NHS funded and she was receiving some NHS care from nurses, a lot of the care was also being received from other workers in the home. It seems rather perverse that the Secretary of State could make decisions on part of that care, but not that other part. We ought to be aiming for the seamless care that was described by Sir Ian Kennedy. Others echoed his sentiments: Denise Platt said that she wanted a strong social care focus to be retained. The amendment serves two purposes: to try to have that seamless aspect, and to make it absolutely clear that the focus on social care is retained in the Bill.

Stephen O'Brien (Conservative, Eddisbury)

It seems a sensible proposal. It is difficult to understand why the Government are confining themselves to quality standards in NHS care and not beyond. Under the current system in which Ministers have day-to-day control of the NHS, one would have thought they would be doing this anyway and that the role would be distinct from that of the regulator. We must question what the underlying reason is for the power here. That is the argument.

Ben Bradshaw (Labour, Exeter)

First, I agree that improving quality in adult social care is every bit as important as improving it in the NHS, but there are other mechanisms and methods already in place to do that. Local authorities have their own local and national reporting and accountability arrangements, and the Minister for Communities and Local Government has powers to issue standards under the Local Government Act 2003. The Government are committed to a single performance framework for local authorities across all their functions, rather than having a duplication, which we think would be the impact of the amendment.

On the issue of independent health care providers, where a PCT uses private sector providers to provide NHS health care, of course the standards set under the clause will apply to those providers. As we have previously discussed, the registration requirements will ensure that all private and independent sector providers provide services at a particular level. The hon. Lady’s amendment asks for the Government to intervene as a performance manager in private transactions between entirely fee-paying clients or patients. In terms of pushing up standards, we do not believe that it is the Government’s role to intervene on matters of purely private health care. We believe that improvements in the commercial sector should be driven by the suppliers themselves as they strive to improve and attract more fee-paying patients. In a way it goes back to the argument we had two days ago about cosmetics—we must decide on the proper boundary of the role of the state.

Sandra Gidley (Liberal Democrat, Romsey)

I find the Minister’s arguments hard to follow. In the same nursing home there could be residents who are purely NHS funded, those who receive funding via the local council and some who are using their own funds for the time being, as they have the money available. Is the Minister saying that we should apply standards to one set and ignore the others? It seems to be a mixed message.

Ben Bradshaw (Labour, Exeter)

My point is that the hon. Lady asks us to push the principle of performance management beyond what is generally considered to be the role of performance management in the private sector vis-Ã -vis the funded sector. However, in the situations that she has described, those institutions will fall under the registration requirement that will set minimum standards. She asks us to performance manage the care delivered under a purely private contractual arrangement between provider and client, and we do not feel that that would be a desirable thing to do.

Sandra Gidley (Liberal Democrat, Romsey)

I am not wholly convinced by the Minister’s arguments. There may be a better way of phrasing the measure so that it encompasses what we wish to achieve. We may wish to revisit the matter, but for now, I beg to ask leave to withdraw the amendment.

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 29, in clause 41, page 20, line 6, at end insert—

‘(1A) statements of standards must be established within the remit of the NHS Core Principles.’.

The amendment seeks, insofar as we are able within the scope of the Bill, to enshrine the NHS core principles in the legislation. The Committee will be aware that we in the Conservative party are fully committed to that, as stated in our published NHS (Autonomy and Accountability) Bill. In support of that, my right hon. Friend the Leader of the Opposition has consistently confirmed our party’s commitment to the NHS, that it should be and will continue to be under any incoming Conservative Government a service free at the point of need, with access based on need and the ability to pay. I hope that the Government would seek to support that core principle.

One has to note that in a consultation undertaken by the now Chief Secretary to the Treasury in December 2006 on the core principles of the NHS—principles that we have committed to enshrining in legislation—the Government admitted the principle that

“Public funds for healthcare will be devoted solely to NHS patients.”

It was a surprising admission at the time, and even if the Minister will not accept the amendment, I hope that he will tell us whether he still wishes to get rid of this particular central pillar of the NHS. Members of the Committee who sit on the Government Back Benches might want to question whether they support the Minister in apparently seeking to open the door to top-ups—[Interruption.]I do bless him for his continual sneezing, but I hasten to say that I have no clerical rights to do so.

In choosing whether to support the amendment, the Minister should be aware that, as we identified, he is choosing between his Secretary of State and the Prime Minister. We should compare the Prime Minister’s new year message to the NHS, which we have already quoted at least once in this Committee, with the report eight days later in the “Society” section of The Guardian that the Secretary of State did not want a constitution to give lots of work to lawyers by “enshrining”, as he put it, the constitution in legislation.

This important amendment provides an opportunity, which I hope will be consensual, to enshrine this core principle. We have offered this and many other opportunities to do what I should have thought would be incontestable among us.

Ben Bradshaw (Labour, Exeter)

The reason why we have trouble with the amendment is that we do not think it sensible or desirable to restrict the scope of the standards to the NHS core principles. Those core principles have existed since 2000, so we do not think that there is a need to legislate to introduce them. We have strengthened the force of the principles by incorporating them into the standard NHS contracts between primary care trusts and secondary care service providers, which were introduced in 2007. Those contracts required all sides to have regard to the NHS principles, and that is a more appropriate way of confirming the commitment of NHS bodies to the principles than enshrining them in legislation, as they are by definition general principles of behaviour that can be applied in practice in a variety of ways.

Because we want to put more power in the hands of front-line staff to get on with the job and let local circumstances help them with the application of those values, we believe that they will apply the core principles sensibly and flexibly. It would not be sensible for us to predict what effect the legal application would have on local practice, which is why we are inclined to resist the amendment.

Stephen O'Brien (Conservative, Eddisbury)

The Minister just said that he does not think that the core principles should be enshrined in legislation. It is helpful to repeat what the Prime Minister said in his widely reported personal new year message to the NHS on 1 January, which can be read by all at www.dh.gov.uk—I even have details of how to find the particular sentence. He said that

“we will also examine how all these changes can be enshrined in the new constitution of the NHS setting out for the first time the rights and responsibilities associated with an entitlement to NHS care.”

If that is not to enshrine the core principles in legislation, one has to ask, what is? I am conscious that I am not going to make progress with the Minister—he has obviously decided what his position is.

I think that everybody is clear about our position on this: that it is appropriate to seek to enshrine the NHS core principles in legislation. Most unusually, we shall find an opportunity this Session for our NHS (Autonomy and Accountability) Bill to be considered by the House. That would be a better, more consistent and principled vehicle to use, rather than pursuing an ad hoc approach in Committee with the Minister. I hope that the Government will support our Bill, because otherwise, we shall be the only ones offering the enshrining of the core principles in legislation, notwithstanding the Prime Minister’s well-reported remarks of 1 January. As we shall have plenty of chances to revisit the issue, I am happy to beg to ask leave to withdraw the amendment.

Clause 42

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 30, in clause 42, page 20, line 27, after first ‘of’ insert ‘the quality of’.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss amendment No. 31, in clause 42, page 20, line 32, after first ‘of’ insert ‘the quality of’.

Stephen O'Brien (Conservative, Eddisbury)

The amendments seek once again to limit the scope of the commission to reviews of quality and value for money, rather than economic viability. The debate will be akin to some degree to that on amendment No. 6 to clause 2, at column 175 of the Official Report. I am sure that members of the Committee will recall that I talked about economic regulation covering all aspects of the operation of the social market. The economic regulator would need to possess substantial powers to intervene in order to determine service reconfiguration and the management of NHS trusts, and to determine how service requirements must be met.

However, a quality inspectorate needs to report openly and frankly on the quality of the services provided. There could be tension between the two activities. We hope not, but I dare say that we can all envisage circumstances where the need to drive efficiency from an economic point of view might conflict with the need to warn about the potential of declining standards of care from a quality perspective.

When we discussed the matter before, I must say in fairness to myself that the Minister misrepresented the position. I am putting forward the desire—a party position—not to extend massively the powers of Monitor, which suggests a net increase in regulation, but to transfer the economic regulation role of the CQC to Monitor. As the Minister knows, we were unable to take oral evidence from Monitor. We had hoped to do so, but that was not possible due to compromises made on the programming.

In the foundation trust sector, which is relevant to the work of Monitor, quality and economic regulation are already divided along those lines and to those bodies. Our position aligns with our desire to see all trusts achieve foundation status. I should be interested to hear the Minister’s explanation of his contention that our establishment of an NHS board poses a potential massive conflict of interest. That would happen only if politicians continue to want to run the NHS, rather than to provide the means by which it can be run with clinical priorities as the first order of concern. I hope that the Minister has had time to reflect on matters and sees the merit in our proposals.

Ben Bradshaw (Labour, Exeter)

The hon. Gentleman said that he wanted to retain the role for the review of value-for-money elements, but that would be excluded under the amendment. It would restrict the scope of Care Quality Commission reviews simply to the quality of provision. I understand his desire to extend the remit of Monitor, but I would not be in favour of restricting the reviews of the commission in that way, and nor would the commission, I believe, given what we heard during our evidence session.

Of course, the reviews will look at the quality of provision. Subsection (4) sets out that assessments will be conducted by

“reference to such indicators of quality”

set out by the Secretary of State, or delegated to the commission to determine. The reviews will need to look at more than the quality of services. For example, when assessing local services we want greater emphasis to be put on how well they are working together to achieve overall outcomes, and to see whether they reflect the needs of their local populations. We will talk later about commissioning, but the reviews may consider the commissioning record of a primary care trust and how well it is meeting the needs of local people. Those issues seem to go beyond the strict definition of quality in the amendment, which is the main reason why we wish to resist it. We will discuss the role of Monitor at greater length later, but I point out to the hon. Gentleman that Monitor covers only foundation trusts, not all registered providers, and this is not just about NHS care.

Stephen O'Brien (Conservative, Eddisbury)

We will not press the amendment to a vote because I can see that we will not win on this one, and I will withdraw it on that basis. However, I hope that the Minister will take the following point seriously. If one genuinely hopes, as I believe his Department does, that all trusts can move toward foundation trust status—that is our stated aim, and by the very nature of what is intended, that must be the aspiration—it would make more sense if the regime that covers FTs, in the light of how Monitor divides up its responsibilities, is consistent with the provision that we are considering. That said, I beg to ask leave to withdraw the amendment.

Sandra Gidley (Liberal Democrat, Romsey)

I beg to move amendment No. 195, in clause 42, page 20, line 28, at end insert—

‘(aa) conduct reviews of the making of arrangements for the provision of healthcare by the Trust’.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss the following amendments:

No. 261, in clause 42 , page 20, line 28, at end insert—

‘(aa) conduct reviews of arrangements made under paragraph (a) above’.

No. 263, in clause 44 , page 21, line 39, at end insert—

‘(d) the making of arrangements by a Primary Care Trust for the provision of health care.’.

Sandra Gidley (Liberal Democrat, Romsey)

The amendment is a simple one and was tabled after listening to the oral evidence. I was struck by the powerful arguments made by Anna Walker when she was asked what the powers of the new Care Quality Commission should be. She expressed concern that the Bill, as drafted, focuses too much on the regulation of providers, whereas the provision of health care is about what care is purchased or commissioned on behalf of the user, as well as the provider. I do not usually read out large quotes, but it is worth reminding the Committee of what she went on to say:

“that is of course also true for social care. We have concerns about two particular areas. The Bill, as drafted, gives the new regulator the power to carry out wider reviews. That is welcome, because it is under that power that we have looked at learning disabilities, mental health and dignity in care for older people in hospital, so it is a very important power to us. The difficulty is that it is limited to providers only. What we find in health care—I must leave it to others to talk about social care—is that you can say to a provider, ‘Look, that service simply isn’t good enough’, to which their answer can often be, ‘But we are not being paid to provide any more than that.’

In order to get the issue right, on behalf of the user and the patient, you have to look at a mixture of commissioning and provision; what the primary care trusts are doing, as well as what the provider is doing. We would like to see that power for the wider review cover commissioning as well as provision.”—[Official Report, health and social care Public Bill Committee, 8 January 2008; c. 17, Q25.]

That is a laudable principle.

I do not want to pre-empt the Minister’s comments, but I fully accept that practice-based commissioning is fairly new. It does not work terribly well in some parts of the country and I am told that is being replaced by something called world-class commissioning, for which we wait with bated breath. There are problems with some of the probity of commissioning. Sometimes, the commissioners are in effect consulting GPs who commission services from themselves—there are not enough Chinese walls in place.

The amendment tries to pull back the focus, so that it is not simply some cosy little group deciding what services are commissioned from where. I am not saying that all groups are like that, but I dare say that the odd one is. The amendment would provide an extra provision, so that the commission could come in and say, “You are doing it wrong. You are not providing service of the best quality and the problem has arisen because of the commissioning”.

The amendment may not be perfectly drafted, but the general principle is important. I hope that the Minister can reassure me that he is at least rethinking the matter.

Stephen O'Brien (Conservative, Eddisbury)

We have tabled amendments Nos. 261 and 263. The hon. Lady was honest enough to say that perhaps her amendment is not perfect in all respects. Amendment No. 261 provides an alternative opportunity, as it seems to achieve much the same thing. Amendment No. 263 would enable special reviews of commissioning practice, for example.

What is important here is the point that Anna Walker made to the hon. Member for Leeds, North-West during the oral evidence: in order to get the issue right, the mixture of commissioning and provision has to be looked at, as does what the PCTs and the providers are doing. That power for the wider review should cover commissioning as well as provision. The Committee might also want to read “local authorities” with “PCTs” and even go as far as including “individual private purchasers of social care”. If we end up finding that, unusually, the Minister is not able to accept our amendments perhaps he would like to add that to his “Reflect” box for what I hope will be a monumental improvement by the time we reach Report.

I will give an example. The Healthcare Commission’s annual health check for 2008-09 will assess PCTs on the quality of their commissioning. We need to ask seriously whether that will continue under the new CQC. I also alert the Committee to a report on 2 August last year in the Financial Times, which stated that

“a battle had broken out”

between David Nicholson, the NHS chief executive, who sees the PCTs as part of his management empire, and Anna Walker, who said that there must be

“a mechanism for holding people publicly accountable”

for the quality of purchasing. The report went as far as to say that one Department of Health official shared that view while others opposed it. I shall not endeavour to catch the eye of any of the cast of officials that the Minister has with him today. Under Anna Walker’s system, it would remain the job of the strategic health authorities to performance manage the primary care trusts, but there is a need for an independent assessment of their performance.

The NHS Confederation has also backed the idea of independent assessment, saying that it was needed

“for reasons of public accountability”.

The point is a strong one, it commends itself and I hope that the Minister feels persuaded.

Ben Bradshaw (Labour, Exeter)

I am grateful for the opportunity to discuss this issue, not least to put on the record that we are completely committed. The hon. Member for Romsey asked me to rethink, but I do not think I need to—I am in the same place as she is and I agreed with everything that she said. We are completely committed to the independent performance assessment of PCT commissioning and we believe that that should be a role for the Care Quality Commission. That is provided for in the Bill, and I will explain why in a minute. It is entirely right for that to be the case given that 80 per cent. of taxpayers’ money is now spent on the health service through primary care trusts, which are the main commissioners.

There was widespread support for that during our consultation on the proposals in the Bill. That is why clause 42 requires the Care Quality Commission to review PCT commissioning, as well as the health care that they provide. Subsection (1) requires the commission to conduct overall reviews of the health provided in each PCT area, whether provided by the PCT itself or by other people under arrangements made by the PCT. Those reviews will assess how well PCTs are meeting the needs of their local populations. PCT provision will also be reviewed in its own right under subsection (2).

Clause 44 covers commissioning by local authorities and primary care trusts, and how that impacts on the services people receive and the health of the local population. The commission is able to investigate specific incidents, or series of incidents that put the health, safety or welfare of people at risk. That would include looking into the decisions that have led to that situation arising, such as the commissioning.

Given that reassurance, and the positive discussions that I have had with Anna Walker about the issue over many months, I hope that the hon. Lady will be reassured enough to withdraw her amendment.

Sandra Gidley (Liberal Democrat, Romsey)

I am not entirely convinced that Anna Walker was reassured, judging by her comments during the evidence-taking session. I fully accept that clause 44 allows for special reviews and investigations and I can see that that is covered. However, it would be useful to amend the wording to clarify that that is a key part of the role. At this moment it is best to reflect on the Minister’s comments and perhaps go back to the Healthcare Commission to see whether it is as reassured as he claims. I beg to ask leave to withdraw the amendment.

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 135, in clause 42, page 20, line 30, at end insert—

‘(d) in conducting reviews under subsection 1(a) the Commission shall review and assess annually the Trust’s plan for improving health, as prepared under section 24 of the National Health Service Act 2006 (c. 41).’.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss amendment

No. 136, in clause 42, page 20, line 40, at end insert—

‘(d) in conducting reviews under subsection 3(a) the Commission shall review and assess annually the plan for improving health insofar as it impacts upon the authority, in accordance with section 24(3) of the National Health Service Act 2006.’.

Stephen O'Brien (Conservative, Eddisbury)

Let us see whether we can get this amendment away from the “Reflect” box. The amendments would give the CQC the power to inspect PCTs’ plans for improving health, with the intended consequence that they would take such plans seriously. It is not a draconian or over-prescriptive measure, but I suspect that the power to inspect is in itself a potentially powerful tool. PCTs already have powers to publish an annual health improvement and modernisation plan—HIMP. Those were originally under section 28 of the Health Act 1999 and are now under section 24 of the National Health Service Act 2006, which sets the framework for the local commissioning and contracting of services.

I have already outlined what we have argued are the significant failings of the Government on public health. The force of these plans, therefore, will be to seek to combat widening health inequalities and poor public health at a local level. I will not repeat the arguments that we had in relation to other clauses, but that is what lies behind our concern and why this would be a pragmatic, cost-efficient measure to include. I hope that the Government find that it commends itself, because we would require all PCTs to produce such plans and require each PCT’s coterminous local authority to be consulted on their development. Of course, overlapping authorities would therefore have to be on a multi-consultation process.

In those cases where agreement between local authorities and PCTs cannot be reached, disputes would be resolved in the first instance by the relevant strategic health authority, with a right of appeal to the NHS board. If the HIMP involves a major service reconfiguration, the independent reconfiguration panel would be consulted as necessary. I want to ensure that the Minister realises that this is a genuinely thought-through, sensible proposal that is not particularly sizeable but is significant. I genuinely hope that he will find himself persuaded by the arguments.

Ben Bradshaw (Labour, Exeter)

As we have already emphasised, the commission’s reviews will cover the whole range of functions carried out by bodies in relation to health care and adult social care, including public health and community services. Where we differ from the hon. Gentleman is that while we believe that the local plans will look at what PCTs and local authorities plan to do, the role of the commission will be to focus on the outcomes for the people who use those services. He referred, rightly, to the differentiation between the role of performance management by the strategic health authorities, and regulating. I suggest that the amendment, which would require the commission to review the plans, strays a little further on to the performance management role than we think is a good idea. I am afraid to disappoint him, but I will resist the amendment.

Stephen O'Brien (Conservative, Eddisbury)

I am not sure that I can take much more rejection. I am tempted to dwell on the point, which is probably my best lever. If I cannot persuade the Minister, I cannot. He spoke about reviewing and having too much of a hands-on approach, but this power was drafted as “inspect”. I accept that if someone inspects they are likely to have a view as to whether that amounts to a review, but I do not want to split hairs on that. However, the power of inspection was more to have something that would urge people to ensure that they got it done in a timely fashion.

I was initially sceptical when the Government suggested—it is a direct parallel and involved an area like mine, which I suspect is not dissimilar to parts of the Minister’s constituency—that it would be appropriate for parishes to bring in parish plans. I saw that as yet another piece of written bureaucracy that is going to tie people up. Instead, it has served to bring focus and energy into local communities to decide what they want collectively to make their priorities. In many cases—not all—it has served to be a good, rather than a burden. I wanted to inform what is going on here through that process. The fact that one has the right to come in and inspect, whether or not an inspection has been made, encourages that to happen without being over-prescriptive.

As I say, I do not think that I have been able to persuade the Minister, but I hope that, as a final flourish, he might put that also into the “Reflect” box. I beg to ask leave to withdraw the amendment.

Sandra Gidley (Liberal Democrat, Romsey)

I beg to move amendment No. 137, in clause 42, page 21, line 1, leave out subsections (4) to (8) and insert—

‘( ) The Secretary of State shall not create any indicators of quality additional to those in the National Indicator Set.’.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss the following amendments:

No. 93, in clause 42, page 21, line 11, at end insert—

‘(7A) In setting out the indicators under subsection (4) for assessing each English local authority, the Secretary of State shall—

(a) have regard to the National Indicator set, and

(b) in such cases as the indicators impose a regulatory burden on local authorities beyond the National Indicator Set, lay draft regulations before Parliament.’.

No. 32, in clause 42, page 21, line 16, at end insert—

‘(c) all relevant statements submitted to the Secretary of State.’.

Sandra Gidley (Liberal Democrat, Romsey)

This is a probing amendment. I think that the Minister is going to disagree with me, but significant concerns have been expressed by some of the existing regulators, who see increased powers for the Secretary of State, and less flexibility for the new commission.

The amendment attempts to take out some of the indicators that the Secretary of State may approve, or that the commission may submit to the Secretary of State for approval. By sticking to the national indicator set, that would also potentially give the new commission some protection from a future Secretary of State for Health displaying megalomaniac tendencies, and wanting to impose something on the commission.

As I say, this is a probing amendment, and it seeks some clarification on what autonomy the commission has to review something that it deems important, and how much interference it could potentially be subjected to under the clause as currently drafted.

Stephen O'Brien (Conservative, Eddisbury)

I note that the amendment seeks to deal with megalomaniac tendencies, which struck me, coming from the Liberal Democrats, as a little “Dream on”. That was meant to be friendly and light-hearted.

Sandra Gidley (Liberal Democrat, Romsey)

I am wounded.

Stephen O'Brien (Conservative, Eddisbury)

Not half as wounded as I am, given the rejection that I have been receiving from the other party.

Amendments Nos. 93 and 32 are slightly more toned-down versions of the Liberal Democrat amendment. It appears that the Local Government Association has sought to brief both the official Opposition and the Liberal Democrats. We want to ensure that the amendments, which have arisen from the LGA, deal with the regulatory burden on local authorities and whether that would be disproportionate, given the various angles from which they are regulated. As an example of the stringent approach that we have taken to our amendments, we returned some of those that were proposed because we felt that they were constraining the CQC in a blanket way, which could be potentially obtuse. However, on the amendments that we have been urged to consider tabling through the various representations made to us, we have said that the CQC should have a statutory responsibility to have regard to the national indicator set when setting its regulations, and that Parliament should have the power to monitor the regulations if they become over-burdensome.

My record in the House as being completely, utterly and unashamedly opposed to over-burdensome regulation—not least when I had a different portfolio in the shadow team—will commend the fact that the amendment has been not only put forward with some genuine concern and vigour, but is supported by the three pamphlets that I published on the subject. Not many people can wear such a large anorak in getting that excited about regulations. I urge the Minister to consider the amendment as a sensible way to deal with the potential for over-burdensome regulations.

Amendment No. 32 would ensure that the versions of the method statement drafted under subsection (6)(a) are available to the public in order to deliver clarity when and if the Secretary of State, who must approve the statement under subsection (6)(b), alters the method of statement, and that the public can be made aware of those alterations. As the Minister is so far unwilling to remove the somewhat unfettered power that a given Secretary of State may have over the CQC, we think it important to establish some clear accountability regarding the influence wielded by the Secretary of State.

I hope that the Minister can give us some guarantees about the CQC’s not imposing regulatory burdens above and beyond the national indicator set. What discussions has he had with the Secretary of State for Communities and Local Government on that issue, and if he has not discussed it, when will he do so? Will the draft method statements be available to the public, and why does the CQC have to report to the Minister in such a way?

Ben Bradshaw (Labour, Exeter)

I think that the hon. Member for Romsey said that amendment No. 32 proposes that the commission should publish the drafts of its methodology before submitting them to the Secretary of State, while not seeking to change the requirement of the Secretary of State to approve that methodology. I can only assume that she is trying to ensure that a future Secretary of State does not have undue influence over the final version of that methodology. At least the hon. Lady accepts that the Secretary of State has a valid interest in ensuring that the methodology represents a good measure of overall performance, and a consistency of approach across the whole regulatory framework.

I am not aware of any difficulties with the system as it has been operating until now, and as far as I am aware there have been no suggestions by the current commissioner that the existing system has been a barrier to independence. Instead, it has been found quite useful that decisions on the methodology between Secretary of State and commissioners have been agreed through thorough discussion and agreement. I do not think that the amendment is necessary.

Amendment No. 93 would require the Secretary of State to have regard to the national indicator set when devising or approving indicators of quality to be used to assess the performance of local authorities. It would also require draft regulations to be laid before Parliament if further indicators were introduced in addition to those in the national indicator set. The suggestion is that that would place an additional regulatory burden on local authorities, and I assume that the intention is that the draft regulations would contain the indicators that pose an additional burden to allow Parliament the opportunity to consider them.

Amendment No. 137 goes even further and would remove subsections (4) to (8) of clause 42. In their place, it proposes that the Secretary of State should not set any indicators of quality that are outside the national indicator set. The problem is that that would leave the Secretary of State with no power to devise indicators to be used by NHS bodies or local authorities, or to delegate that function to the Care Quality Commission. Nor would the amended clause say what indicators the commission should use in conducting reviews of NHS bodies or local authorities.

The amendment would also remove the requirement for the commission to prepare the method that it proposes to use to assess and evaluate a body’s performance. It would therefore remove the requirement for the commission to publish the indicators and the methodology. That would mean that none of the bodies being reviewed under the clause would have any information on what the commission would be assessing them against. We do not think that that would be a very sensible outcome.

I assure the hon. Members for Romsey and for Eddisbury that we are committed to ensuring that there is a joined-up approach in assessing local authorities. Where the indicators used in reviews under the clause relate to local authorities working alone or in partnership with PCTs, other NHS bodies or other local service providers, they will form part of the single set of national indicators to be used in the new comprehensive area assessments of local authorities. In that spirit, I hope that the hon. Lady feels able to withdraw the amendment.

Sandra Gidley (Liberal Democrat, Romsey)

I thank the Minister for his reply. I am reassured to a certain extent that these proposals replicate existing powers and that no concerns have been raised to date. In the light of that, I beg to ask leave to withdraw the amendment.

Clause 43

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 33, in clause 43, page 21, line 26, at end insert—

‘(1A) In setting out the frequency with which reviews under section 42 are to be conducted the Commission must identify through a Regulatory Impact Assessment the reduction in the regulatory burden.

(1B) The power of the Commission to increase the regulatory burden shall be set out in regulations approved by a resolution of each House of Parliament.’.

The amendment would ensure that the burden of regulation is properly, quantifiably and accountably measured and that where the burden is increased, Parliament has the opportunity to debate whether that is justified. The amendment commends itself.

Ben Bradshaw (Labour, Exeter)

I have a great deal of sympathy with the desire to see a proportionate regulatory system—that came out very clearly in the evidence session. The problem with the amendment is that it would oblige the commission to publish an impact assessment to demonstrate that when it sets the frequency of reviews, they will result in a reduction in regulatory burdens. We agree with that sentiment. That is why clause 2 obliges the commission to have regard at all times to the five principles of good inspection practice: transparency, accountability, consistency, proportionality to risk and targeting where it is most needed. That is also why the commission is required to produce inspection programmes under schedule 4.

We believe that we need to allow the commission the flexibility to vary the frequency of reviews, and for those reviews to not simply be reduced. That would be the impact of the amendment. There has been the example over the last few years of health care associated infections. Most of us would regard as desirable an increase in the regularity of reviews on particular issues. While I sympathise very strongly with the motivations and sentiments behind the amendment, we believe that the commission should be free to respond to rapidly changing circumstances, while at the same time reducing the overall burden of regulation on providers, as we will discuss later in considering the commission’s gate-keeping functions.

Stephen O'Brien (Conservative, Eddisbury)

That is a fair point. I beg to ask leave to withdraw the amendment.

Clause 44

Sandra Gidley (Liberal Democrat, Romsey)

I beg to move amendment No. 196, in clause 44, page 21, leave out lines 37 to 39 and insert—

‘(a) all providers of health and adult social care

(b) all commissioners of health and adult social care.’.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss amendment No. 262, in clause 44, page 21, line 37, leave out ‘NHS’ and insert ‘health’.

Sandra Gidley (Liberal Democrat, Romsey)

Amendment No. 196 was tabled by the Liberal Democrats and amendment No. 262 by the Conservatives. They have more or less the same aim. The clause provides for the review and investigation of adult social services across the board, whereas the powers on health care are restricted to the NHS. In its submission to us, the Healthcare Commission pointed out that

“there is no evidence that the risk of service failure that would warrant investigation is higher or lower in NHS or private care”

It also said:

“In our experience, wholly private services may require review just as publicly funded ones may (for example, cosmetic surgery). In many services provided by the independent sector it is not possible to separate out elements of performance which relate to publicly funded patients and those elements which relate to those privately funded (for example, many independent mental health hospitals have both publicly funded and privately funded patients).”

I was also prompted to table the amendment because of a local case. Someone went into the local BUPA hospital and, sadly, died. It was clear from the evidence that there was insufficient medical cover and that certain complaints were not taken seriously at the time. If they had been investigated, that gentleman might be alive today. I struggle to see how that case would be covered, because the health care was privately purchased. Clearly, that case raises questions about the general provision of care in that hospital.

In the past—not so much today, but when I was first elected in 2000—local private sector hospitals undertook a great deal of work on behalf of the NHS. It would seem invidious to inspect a hospital and reach a conclusion on it solely on the basis of its NHS provision. I think that most members of the public undergoing invasive surgery would automatically assume that private sector hospitals are subject to an appropriate inspection regime, and my amendment is an attempt to capture all health and adult social care providers and to ensure that nothing falls through the gap.

Stephen O'Brien (Conservative, Eddisbury)

The hon. Lady’s amendment seeks to bring all providers and commissioners of health and adult social care within the reach of the CQC’s special review process. It is a sensible amendment. She knows that I am not given to over-praising anything that comes from the Liberal Democrats, but I must say that it contains much neater drafting than the Government’s drafting. I commend it.

Amendment No. 262 prompts us to ask why the Bill says “NHS” rather than “health”. The hon. Lady touched on that and gave examples to reinforce that point. This is the clause about which Dame Denise Platt of CSCI said the following in the oral evidence session:

“We are also very concerned that some of our functions are dilute and become permissive in the new commission.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 7, Q7.]

Much has been said about the fact that permissive, rather than statutory, functions will have less chance of being enacted in a tight funding settlement. That is a problem when the functions that are being made permissive are seen by both the regulator and third-party groups as being the most important.

To save time in the stand part debate, let me address a related issue that I can better deal with now. I hope that the Minister will feel able to give some assurance on a question that has arisen. He might wish to say when the new commission could commence such reviews and, more importantly, whether he expects a hiatus in the researching and publishing of such reviews between the winding up of the current regulators and the full functioning of the CQC.

In her oral evidence, Dame Denise Platt said:

“It is not clear to us why the function cannot be transferred from the start, and why it is going to be put into abeyance for a year—perhaps longer.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 7, Q7.]

Clearly, there are serious implications. The Minister should note that within the first year of its operation, CSCI carried out three major reports, while dealing with its own establishment and reviewing the way in which it carried out its nascent regulatory functions.

The question is of interest not only regarding the quality of provision and safety; I am sure that the political angle will not have escaped the Committee. Any hiatus would prevent reports from being carried out before a rather magical date—the summer of 2010, well after what is gearing up to be something of a rocky election for the Labour party. I hope that the Minister can give an assurance that there will be absolutely no delay, no hiatus and total continuity; otherwise, such a postponement might be interpreted as having a political angle, rather than a functional one. I hope that the Minister will also address the other point that has arisen.

Ben Bradshaw (Labour, Exeter)

As we have already heard, clause 44 covers commissioning by local authorities and primary care trusts and how it impacts upon the services that people receive and the health of the local population; it also provides for scrutiny of the way in which strategic health authorities contribute to those operational issues. The amendments would preclude that last discretion.

Clause 90 defines the terms used in clause 44 and elsewhere in the Bill, and makes it clear that NHS care includes all health care provided by primary care trusts or other people providing health care under arrangements made by primary care trusts. At the moment, as we know, independent sector providers are included in reviews and investigations into adult social care when offering services under agreements reached with local authorities, but not otherwise. Independent health care providers can be covered by special reviews and investigations when they are offering services directly on behalf of the NHS.

That takes us back to discussions that have been a common theme through this period—how far the new Care Quality Commission should involve itself in purely private transactions between individuals and businesses. Special reviews and investigations are intended to provide the commission with the power to consider issues that might undermine public confidence in publicly funded or commissioned services, and to encourage improvement in such services. In those circumstances, we think it right that the scope of the commission’s reviews and investigations under clause 44 should extend to people who provide services under arrangements made by a PCT or a local authority. That will apply whether they are statutory or independent.

The commission will of course monitor and inspect anybody providing regulated activities as defined under clause 4, to ensure that they meet the necessary requirements. The process will be the same whether they are statutory or independent sector bodies. The commission will be able to investigate the failings of a specific provider and take enforcement action as appropriate.

I think that we will be talking about the transition a little later, but I hope not at great length or repetitively. The new Care Quality Commission will be able to conduct urgent reviews on issues that it thinks are a matter of safety or quality in the initial 12 months phase. However, given the substantial registration process that will need to be established within that first year, we believe that there should be a transition period during which it does not conduct the special reviews. We should all note the warm welcome that Anna Walker gave to its continued freedom to conduct whatever reviews it wants. However, until the registration process settles down—it is most important to the new regulatory regime—the reviews that it carries out should concentrate on safety and quality. That is obviously a sensible approach.

Sandra Gidley (Liberal Democrat, Romsey)

I am slightly confused as to why the Minister appears to think that there are powers to deal with the situations that I described earlier, whereas the Healthcare Commission thought that there could be gaps in what it could regulate. I am not entirely convinced that the example that I quoted would be fully captured by the proposal. If there is a problem in a private hospital, I suspect that the bar would have to be raised considerably higher before anyone thought to investigate or review it in a special way.

I say that because the Minister stressed that it is not the Government’s business to consider private arrangements, so, more or less of necessity, the new commission would focus its efforts almost entirely on NHS provision. Some would say that that is perfectly understandable. However, there is a wider public interest issue on which we need absolute clarity. I should therefore be grateful if the Minister described what powers will be available and said how the situation that I described could be dealt with if it seemed that there was a trend——that perhaps one or two complaints had been received. With that proviso, I will withdraw the amendment.

Stephen O'Brien (Conservative, Eddisbury)

I have an amendment in this group and I, too, am inclined to support the hon. Lady in withdrawing the amendment because we will come to transition arrangements in due course. However, we should not underestimate the danger of the difference between what is called “urgent”, which may carry all sorts of definitions, and what would normally have been carried out had the commission not been part of the new registration process, given the work load that that entails. There are still many issues to be debated to gain our confidence.

Sandra Gidley (Liberal Democrat, Romsey)

I agree with the hon. Gentleman that the matter requires some reflection and greater clarity regarding what will be covered by the new regime. I am reluctant to do so, but with those significant reservations, I beg to ask leave to withdraw the amendment.

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 34, in clause 44, page 22, line 9, at end insert

‘which shall only be laid before the Secretary of State at such time as it is made public.’.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss amendment No. 45, in clause 77, page 37, line 32, after ‘must’, insert ‘simultaneously’.

Stephen O'Brien (Conservative, Eddisbury)

The amendments to clauses 44 and 77 respectively would ensure that Parliament receives reports of special reviews and investigations and the commission’s own annual report at the same time as the Secretary of State. They would also ensure that the Secretary of State can neither suppress nor edit such reports and, furthermore, that he is not given knowledge in advance of Members. The amendments are in line with the Prime Minister’s desire to re-establish the supremacy of Parliament, so I am confident that they will commend themselves to the Minister.

Ben Bradshaw (Labour, Exeter)

It will not surprise the hon. Gentleman to learn that I cannot accept the amendments. As he well knows, they would make it impossible for the Care Quality Commission to give the Government or, by implication, the NHS provider about which it is to publish a report, including details of specific recommendations or criticisms that will be made, any advance warning that it is going to do so. I am sure that that is not what the hon. Gentleman intends. It is perfectly reasonable that the Government, the NHS and social care organisations should have a few days to digest, and in some cases challenge the factual accuracy of, any findings.

We have warmly welcomed all the reports made by the commission over the last two years; they have been extremely helpful and very good. However, it is not reasonable for the new regulator to be able to give any advance warning to organisations about which it is to report. There is common practice in relations between organisations and their regulators on this point, and it would not be fair on those other organisations to accept these amendments as drafted.

Stephen O'Brien (Conservative, Eddisbury)

I ought to tell the Minister that I had not thought of this until I reflected upon why things had gone so badly wrong in the case of Maidstone and Tunbridge Wells NHS Trust. It turned out that it was a draft, not a final report, that reached the Department in May 2007, but no action was taken until October 2007. I understand the Minister’s position, of course, and accept it in a pragmatic way, in the hope that one day our positions may be reversed. I dare say that if I were speaking from the Treasury Bench, I too would want advance warning were criticism coming. I am not being difficult about this just as a member of the Opposition.

That said, the normal forewarning has been the practice of the Government. In this case, however—a hospital-acquired infection of clostridium difficile resulting in the number of deaths that occurred at Maidstone and Tunbridge Wells NHS Trust—there had been a thorough draft report in May on which we had no action until October. That seems, by every test, not to be simply forewarning but either not being on top of things or seeking to manage the situation in a way that was not open to public scrutiny or accountability. There is a general sense of frustration that accountability has not been forthcoming: only a sense of shock at the sheer scale of the terrible consequences, let alone the individual cases. That was what suggested to me that we needed to address this, hence these amendments.

I have listened to the Minister’s general point. I do not cavil at that, but I do feel that there is a valid point in making sure that there is not the capacity for the Government and others to sit on difficult news or information, particularly in health and social care where the individual or, indeed, general consequences are terrifying. I will withdraw the amendment, but I hope that the Minister has had the opportunity to listen to that plea, and perhaps he will also add that to the list of items on which he wishes to reflect. I think that the point is well made; there is not much purpose to be served by forcing this to a Division, and I beg to ask leave to withdraw the amendment.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss amendment No. 260, in clause 158, page 104, line 17, at end insert—

‘(aa) section 44’.

Stephen O'Brien (Conservative, Eddisbury)

Amendment No. 260 seeks to add clause 44 into the commencement clause, clause 158. The effect of this will be to bring clause 44 into effect on the day the Bill is passed . The consequence is that the CQC will be able to carry out reports or investigations from its instigation. This, therefore, ties in neatly with the discussion we have just had on the amendments tabled by the hon. Member for Romsey and myself. I do not think that commencing this clause from the point of enactment will prevent the current regulators from continuing to carry out reports or investigations until such time as they are wound up, which the Minister may have had in mind as a counter-point.

The Minister has talked about a shadow body—sadly, Opposition Members know too much about the word “shadow” and are doing our best to get rid of it. I do not think that the Committee would be concerned if the shadow body carried out non-duplicative investigations and reports during the transition period. I believe that the concern for the Committee, current regulators, patients and the public is that there is a hiatus in those crucial reports. As I have noted, that hiatus could prevent any such reports from being carried out until the summer of 2010, which carries obvious political resonance.

It would seem from the Government’s response document to the consultation on the future regulation of health and adult social care in England, which explains the policy detail behind the Bill in relation to regulation in the new Care Quality Commission, that possibly they are seeking some form of delay.

The Minister has said in a previous answer that urgent inspections and reviews could be carried out. I worry that “urgent” could vary in the eyes of different people. I hope that the commission would have total autonomy to decide what is urgent, and not be prevailed on by a Government who might regard some things as not urgent.

The Government have said that:

“There will be a phased transition from the current systems to the new. The first priority will be the safety and quality of care in hospitals and other care providers. The Care Quality Commission’s general service reviews, that are not directly concerned with assurance of acceptable levels of safety and quality, will not start until it has fully implemented the new registration system. The Care Quality Commission will agree this start date for general service reviews with the Secretary of State once it is clear that the new system for checking safety and quality assurance is fully in place.”

They stated further that:

“Once the safety and quality assurance systems are fully up and running, the Care Quality Commission will be able to carry out general service reviews, studies and research on issues that arise from carrying out its functions. It will bring forward an annual programme of work for discussion with the Secretary of State; this process will also allow for the need to respond to exceptional circumstances.”

The continued power to make independent studies, reviews and reports without direct Secretary of State approval is welcome. However, it is strongly arguable that the new regulator’s power should commence at the inception of the body. That is from 1 April 2009, when it takes on its other functions.

Such reports are crucial in providing an evidence base for driving up social care and health standards across the piece, and to reporting fully on their state. It is arguable that the chair and board of the new commission would be best placed to decide what reports the new body should make, and when it should make them; taking account of Department of Health views, but not reliant on direct approval. After all, the Government seem to have set great store in allowing the new regulator to make its own decisions on its structure and activities in earlier stages of the Committee. The Minister has said:

“We believe it should be for the commission itself to establish the organisational structures and split of responsibilities that it determines it needs best to carry out those functions and deliver its aims”——[Official Report, Health and Social Care Public Bill Committee, 10 January 2008; c. 135.]

To do otherwise would seem to undermine the independence of the new regulator. It is only by exercising its independence that such a regulator can be of service to the public and support improvement in the sectors.

Indeed, within its first year of operation the Commission for Social Care Inspection carried out three major reports while dealing with its own establishment and reviewing the way it carried out its nascent regulatory functions. It is also of note that in the current legislation CSCI can carry out independent reviews and studies as a statutory function. The Bill appears to water that down. The activities described are the same, but the nature of the power is different. Section 80 of the Health and Social Care (Community Health and Standards Act) 2003 confers that activity as a function rather than a permissive power. Powers are permissive; functions are duties. In a tight financial climate, there may not be enough resources to fund permissive powers. Therefore, that is a diminution of power, by reducing it to a permissive power rather than a duty as a function.

I have already quoted Dame Denise Platt. She said that:

“The principles of public service inspection from the Cabinet Office talk about the need for inspection to generate data and intelligence that enable departments more quickly to calibrate the progress of reform in their sector and to make appropriate adjustment. We think that special studies do exactly that, so we cannot see why that function is watered down.”

She continued—rather vital evidence:

“In our experience, specific reviews are where we bring together a range of intelligence and we ask the next question of the policy or the circumstances. For example, we will publish a report this month on what happens to people who do not meet eligibility criteria in social services. Before Christmas, we published a report on risk and restraint in care homes, and the dilemmas in care that raised for care staff and where the lines should be drawn.”

She carried on:

“It seems to me that the new commission should have the powers and the duties to identify those issues and comment on them as emerging issues, and to identify them themselves rather than in advance seek the agreement of the Secretary of State and go through a whole process that might delay looking at an issue that needs immediate attention.”

I do not think that the Committee will struggle to understand that if there is a delay because of the negotiation process—particularly given that I have made the political point about how this could carry through to the summer of 2010—we would be in the arena of people worrying about political and electoral advantage in advance of the inevitable general election, which has to take place before that date. We can avoid that by following the objective and important advice of Dame Denise Platt.

Her other important point is the need to get on with emerging issues. The more experience we all have in the field of health and social care, as in the rest of life, the more we realise that we do not often get the clarity of certainty until far too late. We get clues. If the expert regulators, above all, get clues, then they need to be getting on with things fast, so that the emerging issues can be identified and sufficient evidence quickly established. That means that, on advice, Governments have the best chance to make the best decisions—if there is anything for Government to do in these matters, rather than simply the enforcement powers granted to a regulator.

Here is an important issue. The suggested amendment is for clarifying the attitude of the Government, so that the new regulator can exercise that power from the start. To coin a phrase, it would be a sunrise clause—rather than a sunset clause—which might also commend itself into parliamentary language. To do otherwise would mean that the new regulator would not be able to carry out any such reports or investigations until the summer of 2010 unless—picking up on the Minister’s words from the previous answer—they were felt to be urgent, having been approved by Government as urgent and necessary during that period. Committee members, I am sure, are fully aware of the value of such reports. In the last six months alone we have had, “A Fair Contract with Older People?”, “A Time to Care?” which looked at domiciliary care and the “Safe as Houses” report into private investment in the social-care market. They provide a strong, independent critique and encouragement of the policies that we are all seeking to bring forward as part of the Bill.

Depending on the Minister’s response, I would like to reserve the right to test the Committee on the amendment. I think that I am right to say that I might want to vote on amendment No. 260, when we reach clause 158. I hope that I have the procedure correct. I would like to make that point clear, which leaves us depending on how the Minister reacts. However, I hope that it is felt across the Committee that this is a point that seriously needs to be borne in mind. We have an opportunity here to make sure that nothing falls through the gaps and that we have done our duty.

Ben Bradshaw (Labour, Exeter)

We made it clear in the White Paper and in our response to the consultation on it—indeed, in the Bill—that the first priority for the new Care Quality Commission will be the safety and quality of care in hospitals and other registered health and social care providers. In the light of that, we believed that there should be a phased transition from the current system to the new. That is why we have introduced the provision for the general reviews—those not directly concerned with assurance of acceptable levels of safety and quality—of the UK’s quality commission to kick in a year after the new registration system, which is going to be very important and a very big job, has been fully implemented. I would like to reassure both the hon. Member for Eddisbury and other members of the Committee that transitional arrangements will be put in place to make sure that the commission will still be able to undertake investigations where the commission believes that there is a risk to the health, safety or welfare of people receiving health or social care.

Let me use some recent high-profile examples. The Cornwall learning disabilities investigation is an example of the type of activity that the CQC could get on with straight away, without the year’s delay. The health care-associated infection investigations that have been done at Stoke Mandeville and at Maidstone and Tunbridge Wells are similar, because they are so obviously connected to the quality of care and safety of people. The more general reviews that we are talking about would be general reviews of a service, either throughout the country or in a particular region.

I can assure the hon. Gentleman and other members of the Committee that we are not the slightest bit interested—I hope that we have made this clear; Anna Walker has acknowledged this—in fettering the independence of the commission to conduct the reviews that it thinks it should be able to conduct. We simply want to avoid the hiatus that the hon. Gentleman said that he was worried about in the initial year, and avoid an unnecessary and unreasonable burden on the newly regulated bodies during the period of transition and registration, which will be quite a big process.

Stephen O'Brien (Conservative, Eddisbury)

The Minister accepts that we are on to quite a serious matter. Perhaps we should consider it the other way round and he could help us. In what circumstances does he think that the Secretary of State or himself, as the Minister in the forthcoming period, might decline to give approval to the CQC to proceed to undertake an urgent review? It does have to obtain approval. In what circumstances does he envisage using his ministerial authority to decline?

Ben Bradshaw (Labour, Exeter)

I am not aware of any example of that happening previously. It would certainly not be within our powers under the Bill to prevent the CQC from conducting an urgent review, as I have made clear. We are, however, keen to avoid the more generalised reviews—non-urgent reviews—in the first year of its existence. If the CQC came to us and said that it was very worried about x, y and z in a certain place and any patterns that might emerge from that across the service that were putting safety and quality of care at risk, it would not be within the powers of the Secretary of State, let alone be his inclination, to prevent the commission from acting.

We are simply trying to send a message to the new regulator that it will have a big job on its hands for the first 12 months in getting the registration system in place. It will have quite a lot of work doing that, and while it is doing that, we want it to concentrate its reviews on the things that are really serious and matter. A burden will also be placed on the bodies and organisations being regulated. If more general reviews were being conducted at the same time, we would be worried about the capacity of the new regulator and of the regulated bodies to cope, but certainly we would expect anything that was important and urgent as the hon. Gentleman described to fall within the commission’s remit right from the start.

Stephen O'Brien (Conservative, Eddisbury)

Having listened to the Minister, I shall not resist the clause. I have reserved our position, but I think it fair to point out, given what he has just said about the burden and given that three regulators are coming together, that in the previous discussion we envisaged that almost all the people will arrive in a much bigger organisation, so the capacity to deploy the staff and the expert teams should be there to help to overcome some of the great burdens that will arise in going through the first year, particularly with regard to registrations. One has to bear in mind that this was exactly the position that the CSCI managed in establishing itself. During its first year, it was both carrying out regulation and doing these reports. That was not postponed for a year while it established itself and did its various inspections and regulation.

The point still applies. I accept that the Minister has sought to give some assurance that Ministers would not want to appear in any sense to fetter the independence and autonomy of the regulator, but I can envisage circumstances—that is why we are here, scrutinising the Bill—in which the temptation is almost too great to resist if something particularly difficult is arising. One can envisage meetings that are less of a ministerial nature and more of an inevitably political nature—we all carry both hats—and we need to be conscious of that. Unless I put it on the table specifically, the danger is that if something like that happened, we would be seen to be falling down on our job.

As I said, I reserve our position for a Division on amendment No. 260 when we get to clause 158, but I note that the Minister has taken seriously the points that we have been making and I am grateful for that.

Clause 46

Sandra Gidley (Liberal Democrat, Romsey)

I beg to move amendment No. 78, in clause 46, page 23, line 27, at end add—

‘(6) In considering whether the function referred to in subsection (2) is being discharged to an acceptable standard the Commission shall have particular regard to its duty under section 2(3)(d) of this Act.’.

The clause as a whole deals with failings by local authorities and any special measures that the commission recommends that the Secretary of State should take. To save everybody looking it up, clause2(3)(d) refers to

“the need to safeguard and promote the rights and welfare of children and vulnerable adults”

This morning we heard some examples of concerns about how that might present a conflict in some cases. The specific example given was the case of a care home closure under certain powers. Although we may not think of it in this way, to people in those homes, it is their home. I have had personal experience of the closure of a home, not through any reasons of malpractice but simply because the owner did a runner with the money, and suddenly provision had to be made for the elderly residents. It was difficult for the local authority and it seemed to be a case of slotting the residents into any available space so that the authority had done its duty. No regard was given to the particular needs of the residents.

The amendment is designed to tease out how important this aspect of the Bill is. We are constantly reassured by the Minister that it is on the face of the Bill so it will underpin everything, but there are times when expediency means that action has to be taken quickly and at that stage the human rights aspects are often forgotten. In many ways this is a probing amendment to see whether there is a hierarchy of priorities. The hon. Member for Tiverton and Honiton raised a pertinent example earlier, where a lady with learning difficulties had her wishes completely disregarded. The amendment would ensure that, as a consequence of powers in the Bill, those situations do not arise. The hopes and wishes of all people must be taken into account, but particular care must be taken when those people cannot easily stand up for themselves.

Ben Bradshaw (Labour, Exeter)

In response to the specific situation that the hon. Lady described and which we discussed earlier, about a care home having to close all of a sudden, I would point out that clause 2(3)(c) requires the Care Quality Commission to balance its own action against the risk that the action might pose for users. I hope that that goes some way to reassure her, as the commission will have a duty to consider that sort of situation. Clause 2 makes it clear that the commission must pay particular heed to the need to safeguard the rights and welfare of vulnerable people in everything that it does. That clearly applies to the commission’s actions under clause 48. In the light of that, I ask her to withdraw the amendment.

Sandra Gidley (Liberal Democrat, Romsey)

Clause 2(3)(d) refers to “the need to safeguard”, but it is included with a list of other things and the amendment was an attempt to give particular regard to that aspect so that it was at the top of the pecking order when considerations were being made. I do not feel that I will win this one so I beg to ask leave to withdraw the amendment.

Clause 47

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss new clause 15—Failings by English NHS bodies —

‘(1) Following a review under section 42 or 45, or a review or investigation under Section 44, the Commission must inform the Secretary of State if it considers that—

(a) there are significant failings in relation to the provision of health care by or pursuant to arrangements made by an English NHS body,

(b) there are significant failings in the running of an English NHS body, or

(c) there are significant failings in the running of a body, or the practice of an individual, providing healthcare pursuant to arrangements made by an English NHS body.

(2) The commission may also recommend to the Secretary of State that, with a view to remedying those failings, the Secretary of State take special measures—

(a) in a case falling within subsection (1)(a) or (b), in relation to the NHS body concerned

(b) in a case falling within (1)(c), in relation to the body or individual concerned.’.

Sandra Gidley (Liberal Democrat, Romsey)

I want to direct my comments to new clause 15. During the oral evidence sessions, we heard concerns that the commission was able to look at failings by English local authorities. That is in clause 46. There are provisions to look at failings by Welsh NHS bodies. However, it is not clear to me, and it was obviously not clear to the Healthcare Commission, why there is no similar provision to ensure that NHS bodies in England are so covered. I may have missed something somewhere, but the insertion of new clause 15 would make it crystal clear that, whether the problem was with NHS England or Wales, or with local authorities, it would always be dealt with in the same way. I seek the Minister’s reassurance on that point.

Ben Bradshaw (Labour, Exeter)

I can give a short or a long explanation. It goes back to the discussion on Tuesday. There could be a cross-border commissioning issue. The service may be commissioned on one side of the border and delivered on another. Is that enough for the hon. Lady?

Sandra Gidley (Liberal Democrat, Romsey)

I am aware of the cross-border issues, but as England does not seem to be included anywhere, I am not sure where that gets us. If England and Wales are included, we presumably need some sort of clause to join the two up. I appreciate that, but it seems that somewhere along the line there is lesser protection in England as a result of the omission. That is what I want to clarify.

Ben Bradshaw (Labour, Exeter)

I do not accept that there is lesser protection, but if the hon. Lady insists, I will read the reasons that I have been given by my officials. She can stop me at any time.

Under clause 47 the commission will be obliged to inform Ministers in the Welsh Assembly if the commission encounters serious failings in the running of a Welsh NHS body or health care provided by a Welsh NHS body, or by someone else providing services commissioned by a Welsh NHS body. Although the new commission will only cover health and adult social care services in England, it may come across patients receiving health care in England that has been commissioned by the Welsh NHS. It may also need to review the care being provided by a Welsh NHS body under arrangements made by the NHS in England.

In those circumstances, it is clearly important that the commission is under a duty to advise Welsh Ministers of any failings it encounters either in the provision of health care or the running of services. Patients, of course, draw no distinctions about where they receive care and they expect any problems that are identified to be followed up and addressed regardless of which authority is responsible. The commission will be able to recommend any special measures that it considers appropriate to remedy the failure in question to Welsh Ministers.

Welsh Ministers will continue to be under a corresponding duty, under section 71 of the Health and Social Care (Community Health and Standards) Act 2003, to report failings in English NHS care to the Secretary of State. The proposed clause would require the commission to inform the Secretary of State where it considered that there were significant failings in English NHS bodies. It would also allow the commission to recommend certain measures that the Secretary of State should take where it judges that an English NHS body is failing in the provision of health care. While we have given the commission that role in relation to local authorities and their adult social service functions, in the NHS strategic health authorities in England are responsible for the performance management of primary care trusts and hold them to account.

NHS bodies in Wales will not be subject to registration in the same way as in England. The Care Quality Commission will have the role of publishing independent comparative information on the performance of commissioners. SHAs will then be expected to use that information as part of their performance management of PCTs and to address areas of weak performance. Local authorities, on the other hand, do not have an equivalent body overseeing their work and hence we have kept the provisions allowing the commission to recommend special measures with regard to them.

NHS providers will have to be registered with the commission and will have to comply with regulatory requirements. The commission will be able to intervene directly in poorly performing providers by taking appropriate enforcement action. The new commission will have the ultimate power to de-register. The ability to take direct action represents a significant increase in the regulator’s powers, with a provision allowing the Healthcare Commission to recommend special measures.

In the interests of a fair playing field, all providers should be subject to the same provision. The commission has both the power to intervene directly in a situation where an NHS body is failing and the power to advise the Secretary of State about any concerns it has. Given that, we do not believe that it is necessary to keep the rather weaker power that the commission be able to recommend that the Secretary of State take special measures with regard to the NHS. Therefore, the amendment is not necessary.

Stephen Crabb (Conservative, Preseli Pembrokeshire)

I am grateful for the opportunity to discuss clause 47, which deals with the failings of Welsh NHS bodies.

I just about kept up with the Minister’s explanation, but some clarification is needed. It is not obvious how the clause will work in practice. My first observation is on the criteria by which the commission will assess whether there is a significant failing in a Welsh NHS body. The standards in Wales are now different from those in England. I have here the “Healthcare Standards for Wales”. There are 32 standards, detailed criteria that have been developed by Welsh Ministers in the Welsh Assembly. They are the basis on which Welsh Ministers judge the quality of health care provision in Wales. My question to the Minister is, what read-across will there be by the commission from the criteria used in England and the standards and criteria that are already being developed in Wales? If he were to look at the document, which came out two years ago, he would read that at that time the Assembly was developing integrated health and social care standards for Wales.

My other observation is about the strength of the duty that will be on the commission in terms of its reporting of failings in Welsh NHS bodies. Looking back to clause 46, which deals with failings identified in English local authorities, there is a duty both to inform the Secretary of State and to make a recommendation about special measures in terms of remedial action. In clause 47 there is no corresponding duty to make a recommendation. That seems to be optional in subsection (2), which says that the commission “may” make recommendations. My understanding of the clause is that Welsh Ministers are at liberty to ignore any recommendations made by the commission in terms of failures identified during reviews or investigations.

I would therefore welcome a bit more explanation from the Minister about how the clause will work in practice. The explanatory notes accompanying the Bill were not very helpful in that regard—merely five or six lines summarising the clause. I would like some assurance from the Minister that serious thought has gone into how the interface will work between the default Administration in Cardiff and his Department here in England, in terms of making the Bill a success.

Stephen O'Brien (Conservative, Eddisbury)

If ever we needed proof that there is great benefit in having a Member who represents a Welsh constituency on the Bill we have just heard it. That is absolutely vital because he is a better test of understanding than someone who happens to represent an English constituency with a Welsh border, with patients freely flowing between the two constituencies. There has been a very public and major dispute between the Countess of Chester hospital and the Flintshire local health board about funding for patients coming from Wales to be treated by the NHS in England. They settled on £1 million on the prospect of future flows, but that is still way short of the true recovery costs. Those are real problems.

My hon. Friend the Member for Preseli Pembrokeshire made an important point about ensuring that the proposal is thoroughly thought through, not just at the conceptual level but deeply at the practical level, given that there are two different sets of political accountabilities. The Minister should bear in mind the practicalities and the difficulties. I am an English MP who frequently has to ask the Secretary of State for Wales—when he has that one of his two hats on, assuming that he will continue in the post in any case—about matters in Wales. When I seek to question him, he refers me immediately to the First Minister, and the First Minister says, “I have absolutely no need, right or intention to answer you. You are an English MP, and I have no accountability to you. Go hang.”

That is how it works. We have an absence of accountability, hence my hon. Friend’s germane points. I hope that the Minister will have an opportunity to ensure that we can set our minds at rest. Otherwise, we could be off to a rocky start.

Ben Bradshaw (Labour, Exeter)

Clause 64 requires the Care Quality Commission and the Welsh Government to co-operate, and that co-operation, which has been good in respect of the formulation of the Bill, will continue. I shall come to Government amendments in that regard in a moment.

The commission will not judge Welsh standards. It has only an English remit, but of course it will co-ordinate with the Welsh authorities to satisfy itself that provision which may be commissioned cross-border meets the quality and safety requirements that it would expect for English patients. If the hon. Member for Preseli Pembrokeshire would like a detailed exposition in the form of a letter as to how we expect that to work in practice, I will happily provide it for him.

It would be up to the commission to decide whether it wanted to judge the quality of a service being provided against its own or Welsh criteria. We would not want to tie its hands in that regard. Based on that, I hope that the hon. Lady will not press the new clause to a Division.

Sandra Gidley (Liberal Democrat, Romsey)

It was necessary to have that long explanation. It was informative, and it is useful to have it on the record because some of what the Minister said had not been clear prior to that explanation. I appreciate that the Committee is a bit tight for time, but I think that that was a good use of it. As the explanation was detailed, I shall review his words and not press my new clause to a Division.

Clause 48

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 166, in clause 48, page 24, line 18, at end insert—

‘(j) Section 121(5) (visiting and inspection of records),

(k) Section 121 (7) (review decision to withhold post),

(l) Section 121 (8) (review decision to withhold any part of post).’.

The amendment would ensure that the Care Quality Commission retains the same powers as the Mental Health Act Commission in respect of visiting and inspecting records, and reviewing decisions to withhold post. The Minister stated that

“visiting powers are retained in the Bill as far as the existing visiting powers of MHAC are concerned”

as the changes to section 120 do not excise the responsibility for visiting. He also stated that

“we envisage that, in areas of particular concern to MHAC, visits would continue with their current regularity.”——[Official Report, Health and Social Care Public Bill Committee, 10 January 2008; c. 123.]

The qualifying statement

“in areas of particular concern”

is of particular concern to me. Unless the Minister can give us a cast-iron guarantee that visits will be reduced only because of the CQC’s judgment of its responsibilities to those detained under Mental Health Act 1983, and never because of simple financial constraints, there will remain a genuine concern for all members of the Committee. As was transparent in the oral evidence sessions, there is a major need for us to respect the enormous benefit of the work of the Mental Health Act Commission, particularly with those who are detained. That came through loud and clear. We must ensure that there is no change and that its judgment carries through to the CQC instead of being supplanted, diluted, qualified or in any way watered down by anybody else having involvement or a contrary or complementary judgment.

On the point about post, and to avoid a lengthy debate on schedule 3, which we shall consider next, I note that paragraph 12 of schedule 3 adds new section 134A to the Mental Health Act 1983, which itself deals with post in sections 121 and 134. What does the proposed new section add to that Act? With that comment, I hope to curtail what might otherwise be a lengthy discussion on schedule 3. I hope that the Minister will address the matter.

Greg Mulholland (Liberal Democrat, Leeds North West)

The Committee heard a clear explanation of MHAC’s concerns about setting up the new commission and whether its powers will be carried through. We are all aware that there are mental health issues to consider, and we all share the concern that they are addressed and not watered down, to use the hon. Gentleman’s words. We support the amendment and feel that it raises an important point. We look forward to hearing what the Minister says.

Ben Bradshaw (Labour, Exeter)

I understand the intention behind the amendment, but I hope to explain to the hon. Member for Eddisbury why we think that it is unnecessary and that the matters that it addresses are already provided for.

The amendment would transfer certain functions currently carried out by the Mental Health Act Commission to the body that replaces it, the Care Quality Commission. Those functions are the visiting of patients and inspection of their records, and the reviewing of decisions to withhold the mail of patients detained in high-security hospitals. However, schedule 3 already gives those functions to the CQC. As we made clear in other sittings, the commission is bound to follow the Mental Health Act role.

On the frequency of visits, I can give the hon. Gentleman the assurance he seeks. It will be a matter entirely for the new commission, and not negotiable. It is a statutory role and we will not seek to interfere in that decision making.

On letters, paragraph 12 of schedule 3 amends the 1983 Act by inserting new section 134A. Section 134 provides for the incoming and outgoing mail of patients detained in high-security hospitals to be examined and withheld in specified circumstances. New section 134A will require the Care Quality Commission and Welsh Ministers to review any decision to withhold mail in those circumstances in response to an application to do so. It will also give the Secretary of State and Welsh Ministers the power to make regulations in connection with such an application. New section 134A is equivalent to powers that already exist in section 121 of the 1983 Act, which is being repealed.

Stephen O'Brien (Conservative, Eddisbury)

I have been mildly surprised by the Minister’s reassurance. I was moving towards pressing the amendment to a Division, but in the light of what he has said I am happy to withdraw it. I hope that there is some sense of the need to ensure, when the guidelines are issued, that the exchange that we have just had might be incorporated in them as an addendum to ensure that the Committee’s joint intentions are clear to those who follow on from the excellent practice currently performed by the Mental Health Act Commission. I beg to ask leave to withdraw the amendment.

Clause 50

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 35, in clause 50, page 25, line 21, leave out ‘Commission’ and insert ‘Independent Regulator of Foundation Trusts’.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss the following amendments: No. 36, in clause 50, page 25, line 36, leave out ‘Commission’ and insert ‘Independent Regulator of Foundation Trusts’.

No. 37, in clause 50, page 25, line 43, leave out ‘Commission’ and insert ‘Independent Regulator of Foundation Trusts’.

No. 38, in clause 51, page 26, line 2, leave out ‘Commission’ and insert ‘Independent Regulator of Foundation Trusts’.

Stephen O'Brien (Conservative, Eddisbury)

I hope that the Committee feels duly excited by the fact that we have turned a page on the selection list.

The amendments would place the studies into efficiency and economy within the remit of Monitor instead of the commission. Amendment No. 38 is consequent on clause 51 requiring the studies to be published. I do not need to reiterate last week’s debate on clause 2 and amendment No. 6, or the one that we had earlier today on clause 42 and amendments Nos. 30 and 31. I hope that the Minister feels more favourable towards the tremendous work that Monitor will be able to offer, given that these points have come up consistently during the course of our consideration of the Bill. Furthermore, I hope that he recognises the distinction in its expertise in and attitude towards economic regulation, as well as the other aspects of regulation that we have looked at.

Greg Mulholland (Liberal Democrat, Leeds North West)

Without getting into the substantive issue, there is a clear need to clarify the apparent duplication, which is what the hon. Gentleman is teasing out. It is a genuine concern that the Government must try to resolve. I look forward to the Minister’s comments.

Ben Bradshaw (Labour, Exeter)

The amendments would remove the function of undertaking studies into economy and efficiency from the new Care Quality Commission. That returns to our earlier discussions about the extension, or otherwise, of the role of Monitor. I shall deal with that matter in some detail now, because it is a sensible point at which to do so.

As I have argued before, the amendments would considerably widen the scope of Monitor, which is currently only a regulator of NHS foundation trusts. As I am sure that the Committee knows, Monitor has no role in regulating adult social care, commissioners or other NHS health care providers. The Care Quality Commission on the other hand will be a regulator of both health and adult social care, and so the regulation of the NHS is only a part of its work.

There is a need for a commission that can take a completely independent view of whether health and adult social care providers, including NHS foundation trusts, meet essential safety and quality requirements and impose tough sanctions when they fail to do so. As we set out in our consultation on the future regulation of health and adult social care in England, that is a very different role from that performed by Monitor, which has a specific role in ensuring that NHS foundation trusts are well managed and financially strong, with statutory powers to intervene should they be in breach of their terms of authorisation. Having greater autonomy than other NHS bodies, NHS foundation trusts require Monitor’s specific regulation to ensure good value for money for the taxpayer from public assets.

By contrast, it will be important that the Care Quality Commission can take a consistent view of the safety and quality of care across all types of provider, including NHS foundations trusts. The wider scope proposed for Monitor by the amendment would serve to distract Monitor from its current, vital, specific focus, which is on foundation trusts. It would therefore be quite difficult for it to have a function of undertaking studies in relation to other NHS bodies and English local authorities. I would go so far as to say that Monitor may not necessarily be considered a fully disinterested party if it were to carry out reviews of economy, efficiency or effectiveness in other organisations while having a specific role in authorising, monitoring, regulating and driving forward foundation trusts.

Given those considerations, the function of undertaking the kind of studies described in clause 50, and the publication of the results and recommendations arising from them, should sit squarely with the Care Quality Commission rather than Monitor. In that light, although I do not expect him to do so, I ask the hon. Member for Eddisbury to withdraw the amendment.

Stephen O'Brien (Conservative, Eddisbury)

I am please to be able to give him some pleasure. I will withdraw the amendment on the basis that we have had an outing on the matter before and we know where we stand. As we go consistently through the Bill it is important to recognise how this interleaves, so those considering our deliberations either on Report or in another place will be able to pick up the threads. I have a modicum of confidence that some light may come onto the issue as the Bill progresses and the merits of Monitor’s involvement may surface. On that basis, I beg to ask leave to withdraw the amendment.

Clause 56

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 39, in clause 56, page 27, line 35, at end insert—

‘(aa) the provision of independent healthcare,’.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss the following amendments: No. 40, in clause 67, page 32, line 31, leave out

‘paid for out of public funds’.

No. 41, in clause 67, page 32, line 33, leave out

‘paid for out of public funds’.

Stephen O'Brien (Conservative, Eddisbury)

The amendment seeks to enable the CQC to inspect independent health care, a point touched on earlier by others on other amendments. Amendments Nos. 40 and 41 amend clause 67(4), which limits regulations under that clause to health and social care schemes paid for out of public funds only. The amendments seek to broaden it to all health and social care schemes and the clause makes provision for the commission to make arrangements with Ministers of the Crown to inspect health and social care facilities within their remit. The obvious example is health care provided through the defence budget. That is a useful example to have in mind. On amendment No. 39, we need to ask why the Bill limits the inspection to NHS bodies. On amendments Nos. 40 and 41, I understand that that is in regard to other Ministers of the Crown, It might be helpful if the Minister could outline which ones. I assume that they are the Defence and Foreign Ministers. Why is it limited to health care paid for out of public funds? Presumably, that has something to do with departmental budgets or allocations. That is the sum of the purpose of the amendments.

Sandra Gidley (Liberal Democrat, Romsey)

We have cantered around this subject in other parts of the Bill. I wish the hon. Gentleman better luck in having his amendments accepted than we have had so far. I cannot stress how strongly I am beginning to feel that we have to ensure that other forms of health care are included in some way. I fully support the amendments.

Ben Bradshaw (Labour, Exeter)

I am going to have to disappoint the hon. Lady again. We believe that clause 56 sets out clearly the purposes for which the Care Quality Commission may carry out inspections. On that basis I do not think that the amendment is necessary. It is interesting to have the spokesman for the Opposition advocating from a sedentary position even more regulation of private transactions between individuals. That is an interesting position. The intention behind the amendment is met by clause 56(1)(a), which allows the commission to carry out inspection of

“the carrying on of a regulated activity,”

by any care provider registered with the Care Quality Commission.

Clause 67 enables the Care Quality Commission to make arrangements with another Minister of the Crown. Under an agreement with the relevant Minister, that clause allows for the commission to perform any of its functions in relation to a specific prescribed health or social care scheme paid for by public funds or to provide relevant services or facilities that that Minister may require in relation to such a scheme. Amendments Nos. 40 and 41 would extend that power to schemes that are not paid for from public funds.

Clause 67 is intended to allow the commission to share its skills, expertise and know-how for the good of another public sector service—the hon. Member for Eddisbury has mentioned a couple—falling under the remit of another Department. For example, the commission might make arrangements with the Secretary of Sate for Defence to review the quality of health care provision for the armed forces. We have been in active discussion with the Ministry of Defence and the Healthcare Commission about that. The commission will also have powers, set out in paragraphs 8 and 9 of schedule 4, to act jointly with or advise and assist other public authorities. The crucial difference is that the powers in clause 67 allow the commission to carry out activity on behalf of another Department.

Carrying out an activity or lending resource to another body is a more significant step than simply providing advice or carrying out an existing function jointly and, as such, has the potential to distract resources, priority and management focus from the commission’s core functions. That should be done only where there is a clear public benefit.

Stephen O'Brien (Conservative, Eddisbury)

I understand where the Minister is going and I am possibly satisfied in respect of the other Departments. He mentioned clause 56(1)(a), which deals with

“the carrying on of a regulated activity”

and encompassed some of my concerns. Will he just clarify whether that relates only to regulated activities provided by public bodies or could it cover privately produced regulated activity, in which case my point is met?

Ben Bradshaw (Labour, Exeter)

As we have said time and again, any provider that is regulated will be required to meet the requirements set out in that regulation—so that would include independent providers. My difference with the Liberal Democrats is that they seem to want us to intervene on purely private transactions between individuals. Any registered provider would be required to meet the standards laid down in regulation.

Stephen O'Brien (Conservative, Eddisbury)

I will reflect on our exchange and ensure that if my point has not been met, we find another way of bringing it up again, but at this point I beg to ask leave to withdraw the amendment.

Clause 57

Sandra Gidley (Liberal Democrat, Romsey)

I beg to move amendment No. 239, in clause 57, page 28, line 23, leave out ‘may’ and insert ‘must’.

This is a simple probing amendment. As the Bill stands,

“The Commission may publish a report prepared under subsection (2).”

I am curious about the circumstances under which a report would not be published. To my way of thinking, the more information in the public domain the better and the greater the transparency of any organisation, the greater the public trust in it. All reports should be published. However, subsection (3) seems to give some flexibility. I am not sure why that is needed. I seek an example from the Minister of where it would not be necessary to publish a report. It would be helpful to know why the word “may” was chosen.

Ben Bradshaw (Labour, Exeter)

This is a point on which I may at last be able to offer the hon. Lady some satisfaction. Although, under existing legislation, the CSCI and the Healthcare Commission are not explicitly obliged to publish inspections reports, in practice they do. However, they are careful at times about some details: we talked earlier about children and vulnerable adults. I agree that it is essential that the public should have access to the commission’s inspection findings: a concern also raised by Dame Denise Platt in her evidence to the Committee. We are therefore looking at whether there is an argument for strengthening the language in that regard.

Sandra Gidley (Liberal Democrat, Romsey)

I am reassured by the Minister and have no desire to have an amendment achieved in my name. If the Government want to bring something forward that achieves that aim on a future occasion, I will be more than delighted. I beg to ask leave to withdraw the amendment.

Clause 60

Stephen O'Brien (Conservative, Eddisbury)

The clause deals with the power of the commission to require documents and information. I want to ask the Minister, in the light of events across Government that are both topical and recent, what guarantees he can give that data collected under the powers in the clause will be kept securely and is the Secretary of State ultimately liable?

Ben Bradshaw (Labour, Exeter)

No, the hon. Gentleman will know that health managers are statutorily responsible for complying with data protection laws. I am sure that he follows these issues closely and will know that the data protection rules governing health data, because of their sensitive nature, are much stronger and more securely held and, indeed, have sometimes been criticised for being too difficult to access. That will remain the case under the clause.

Clause 62

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to take Government new clause 13—Avoidance of unreasonable burdens in exercise of regulatory powers.

Ben Bradshaw (Labour, Exeter)

The new clause and the amendments that we debated earlier were requested by Welsh Ministers in relation to care provided in Wales registered under the Care Standards Act 2000, which will not fall under the scope of the new Care Quality Commission because it will only operate in England. Welsh Ministers wanted to take the opportunity to introduce enforcement powers for Wales that mirror many of those that the Bill proposed for the Care Quality Commission in England and said that they wanted a little more time to consider the full implications of that. That is why I regret having to bring in the new clause now. Having done so, they have asked me to put forward this new clause.

Stephen O'Brien (Conservative, Eddisbury)

I can see that the Minister has had precious little in the way of options if the discussions with Welsh Ministers are on that time track. This is the first of the Government amendments that we have reached during the course of the Committee’s considerations and is one of some 60 amendments. Clearly, anything to mitigate the burden of regulation would, in principle, have my support. It would be helpful, however, at this first outing, when there are implications for Welsh Ministers and the progress of discussions with Welsh Ministers, if he could tell us whether those discussions have concluded or are ongoing, so that we can have full knowledge of what to expect concerning that in Government amendments and new clauses. I am sure that he would accept that we have not had the dovetailing we might have hoped for.

Ben Bradshaw (Labour, Exeter)

They have.

Clause 68

Stephen O'Brien (Conservative, Eddisbury)

The clause will enable Northern Ireland Ministers to make use of the CQC and inspection on agreed terms, and it would be helpful for us to understand the income that the Minister envisages the CQC deriving from such arrangements. If he does not have the answer in his briefing, I am sure that the Committee will be happy to see it later.

Ben Bradshaw (Labour, Exeter)

I shall have to write to the hon. Gentleman about that.

Clause 69

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 42, in clause 69, page 33, line 27, leave out subsection (6).

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss amendment No. 43, in clause 69, page 33, line 28, at end add—

‘(7) In such cases as the inquiry is held in private under subsections (2) or (3), the Secretary of State shall make a statement to Parliament.

(8) In such cases as the Secretary of State deems publication inappropriate under subsection (5), he shall make a statement to Parliament.’.

Stephen O'Brien (Conservative, Eddisbury)

The amendments would remove from the Secretary of State the decision on the appropriateness of publication, and ensure that Parliament was informed in cases where inquiries are held in private or publication is withheld. It would aid the Committee if the Minister gave examples of when the Secretary of State would direct that an inquiry be held in private, or when publication might be inappropriate. I note that being prejudicial to an ongoing criminal investigation is an example, but in that case, the power should be to delay rather than to prevent publication. Perhaps the Minister will clarify that, in that case, “delay” might have been a more judicious word than “prevent”, which seeks not to have an out-date, as it were.

There are no checks or balances if the Secretary of State chooses to use the power to suppress inquiries that might carry political unpleasantness. Although I make no aspersions on that count, the issue must be raised, because as a matter of scrutiny in Committee, we should take every opportunity to ensure that we do not leave loopholes of which neither I nor the Minister would be proud.

Greg Mulholland (Liberal Democrat, Leeds North West)

Last time, I was caught out by the brevity of the hon. Gentleman’s contribution, so I am on my toes this time. He seemed to get through at an excellent pace, and it was a very brief contribution.

Subsection (6) includes the phrase,

“in such manner as the Secretary of State considers appropriate,”

which sends shivers down the spines of many of us who believe in proper scrutiny. It could mean anything, and it is inappropriate to include such a woolly phrase in the Bill. The purpose of the amendments, which the Liberal Democrats fully support, is to include in the Bill appropriate occasions of parliamentary scrutiny, when the Secretary of State shall make a statement. I look forward to what the Minister has to say. The phrase that I have quoted is inappropriate, which is why we support amendment No. 42. The clear and succinct inclusion in the Bill of the occasions when a statement should be made to Parliament would be appropriate.

Ben Bradshaw (Labour, Exeter)

The subsection mirrors the provision in existing legislation for the Healthcare Commission and CSCI. The hon. Member for Eddisbury has already alluded to examples of why it might be necessary for an inquiry to be held in private, such as to ensure that a police investigation or criminal proceedings are not hindered or jeopardised.

On the hon. Gentleman’s question about checks and balances, a decision by the CQC to use publicity if it is concerned that something is being undesirably suppressed will be a fairly powerful check and balance. Hitherto, that has not happened and I do not see why it should, but if it did, the CQC will be in a position to cause extreme embarrassment to anyone who is in government at the time.

Stephen O'Brien (Conservative, Eddisbury)

The Minister envisages that the CQC’s power to make public its concerns—effectively, it has the power to embarrass—will be a very good sanction, and I agree that it is a powerful one. He did not address the issue of whether “delay” is a better word than “prevent”, but that point is on the record and we can think about it in future. It certainly does not merit pressing the amendment to a Division, so I beg to ask leave to withdraw the amendment.

Clause 74

Stephen O'Brien (Conservative, Eddisbury)

Yet again we are dealing with confidential personal information. In response to the previous point made on that issue, the Minister sought to pray in aid the fact that the controls over highly sensitive personal health information were even more stringent than in other areas. I simply seek reassurances and guarantees that when information is in the hands of the Government, Government agencies or related bodies, they recognise and take responsibility for its security, given recent events.

Clause 75

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 44, in clause 75, page 37, line 6, at end add—

‘(5) Subsection (2) does not confer on the Secretary of State the power to prevent the Commission conducting reviews.’.

Under clause 75, the commission

“must...prepare and publish a document setting out”

the reviews it proposes to undertake. Subsection (2) provides that

“the Commission must consult...the Secretary of State”

on the document. The amendment would prevent the Secretary of State from using the consultation as an opportunity to block certain reviews.

The clause highlights the privileged position of the Secretary of State in relation to the commission. It must be patent by now that we have sought to remove the Secretary of State’s powers in order to make the CQC a genuinely and transparently independent body. I have just one question for the Minister: what is the purpose of consultations under subsection (2), and could the clause be used by the Secretary of State to block reviews, however necessary people feel them to be?

Ben Bradshaw (Labour, Exeter)

I simply reiterate what I said earlier. The CQC will be completely unfettered in its decisions to undertake reviews in the circumstances that I described.

The amendment would not have any practical effect, because the Secretary of State has no power to prevent the commission from conducting reviews. The amendment seems to refer to the requirement for the CQC to publish in advance its work programme for the more general reviews that it intends to undertake during a specific period. That is a sensible requirement, not least because that way, the organisations concerned will have some idea about the CQC’s work programme. It can formalise its business planning processes—an exercise that already takes place under the existing system to help managers administer burdens of regulation on front-line service providers. The requirement to consult will also ensure dialogue between the commission and the Secretary of State. However and as I have made absolutely clear, important, urgent reviews—or those that the CQC considers urgent in fulfilling its duty on quality and safety—would be completely unfettered and could be undertaken without consultation with anyone.

Stephen O'Brien (Conservative, Eddisbury)

I am happy to rely on what the Minister has said and I beg to ask leave to withdraw the amendment.

Clause 79

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 46, in clause 79, page 38, line 33, leave out ‘specified factors’ and insert ‘factors specified by regulations’.

As we gallop towards schedule 5, we just have to rein in a touch on amendment No. 46. Subsection (1) of the clause enables the commission from time to time to make provisions for fees to be paid in various circumstances. Our amendment would give Parliament sight of the factors on which the amount of a fee would be determined. There is a wider principle about fees and whether Parliament should vote not only on the fee-making powers, but the level of the fees charged. One recent example of the potential impact of such a power comes from the palliative care sector.

The Government have set the Healthcare Commission, along with all other regulators in England, a requirement to recover the full costs of regulation from fees by the 2008-09 financial year. In the past, fees for hospices have been at discounted rates. In 2006-07, the Healthcare Commission froze fees for regulating hospices and type 3 hyperbaric chambers that are used inter alia to combat the side effects of some cancer treatments, and by voluntary multiple sclerosis treatment centres for MS sufferers. From April 2007, it reduced fees by 22 per cent. for hyperbaric chambers and slowed down significantly the planned phasing out of existing subsidies for hospices, with most fees frozen for the second year running.

The Healthcare Commission is working from a principle that the fees should reflect the actual costs of regulation, not what establishments can afford to pay. Fees are therefore highest for those establishments that are unable to provide assurance of standards and need frequent check-ups, and lowest for those that need the least intervention. The commission notes that it consulted on that approach and received strong support, including from voluntary organisations. However, in its briefing on the subject, it says that it believes

“that if a special case were to be made for voluntary organisations’ fees, it would be for democratic Government—not the regulator—to decide that public funds or other establishments’ fees should be used to subsidise them”.

It continues to say, however, that it acknowledges

“that voluntary organisations and small businesses feel the impact of a fixed overhead such as regulatory fees more acutely than large businesses”.

I am sure that we all say “Hear, hear” to that. It goes on:

“Our fees schemes take this into account”.

Under the planned increases for 2007-08, the Healthcare Commission is proposing charge increases for hospices with four or more beds, involving a frozen fee set at £2,376. A hospice with, for example, three in-patient beds, would see the burden of costs rise from the current total of £907—the registration fee plus the flat rate for inspection costs—to £2,213. That is far more than double, encompassing the doubling of the registration fees for small hospices, plus the new increased flat-rate inspection fee and the removal of the exemption from the charge per bed for hospices with fewer than four beds. Therefore, the impact on smaller hospices is disproportionate and seems to run counter to the commission’s stated goal of finding a balance between full cost recovery and affordability for voluntary organisations.

Furthermore, in response to a written parliamentary question asked by my hon. Friend the Member for Macclesfield (Sir Nicholas Winterton) in February last year, the Chief Secretary to the Treasury, who was then a Health Minister, said:

“We have made no assessments in connection with the regulatory fees hospices pay the Healthcare Commission.”—[Official Report, 28 February 2007; Vol. 457, c. 1425W.]

In my view, that suggests a disturbing lack of ministerial accountability and parliamentary control in the fee-charging arrangements. It is not that it is coarse for us to fix the charge of the precise fees, but the concept of trying to minimise the burden on the smaller organisations, particularly the voluntary organisations that are doing such valuable work, and also of trying to establish a fairer arrangement, rather than a financially driven arrangement, seems to be an area where we as parliamentarians can set the appropriate parameters.

Therefore, I hope that the Minister will address the following questions. First, can he confirm that he does not expect the fees to deviate wildly from those currently levied by the regulatory bodies? Secondly, can he confirm the unfortunate increase in the regulatory burden on smaller hospices? Thirdly, what assessment has he made of the Healthcare Commission’s contention that it is for democratic Government to make the case for public funds or other establishments’ fees being used to subsidise voluntary organisations’ fees? Finally, where would he see the power of Parliament in relation to that contention?

I hope that that is a clear outline of the concern that arises as a result of clause 79. The amendment that we have tabled is to enable the Minister to give some insight and also to ensure that those who have to deal with this Bill have the platform of fairness as well as that of practicality going forward.

The rest of the debate is in Hansard.