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Care Standards Bill [H.L.]

8.46 p.m.

House again in Committee.

Lord Clement-Jones moved Amendment No. 85:


("Codes of practice
CODES OF PRACTICE

.--(1) The Commission shall prepare and issue codes of practice giving practical guidance on the standards which are to be observed whether in relation to the national minimum standards applicable to establishments or agencies or otherwise.
(2) The Commission shall, when requested to do so by the Secretary of State, prepare a code of practice dealing with the matters specified in the request.
(3) In preparing a code of practice the Commission shall carry out such consultations as it considers appropriate (which shall include the publication for public consultation of proposals relating to the code).
(4) The Commission may not issue a code of practice unless--
(a) a draft of it has been submitted to and approved by the Secretary of State and laid by him before both Houses of Parliament; and
(b) 40 days (excluding any period when Parliament is dissolved or prorogued or when either House is adjourned for more than 4 days) have elapsed without either House resolving not to approve the draft.
(5) If the Secretary of State does not approve the draft code of practice submitted to him he shall give the Commission a written statement of his reasons.
(6) A code of practice issued by the Commission--
(a) shall come into effect on such day as the Secretary of State may by order appoint;
(b) may be revised in whole or in part, and re-issued by the Commission; and
(c) may be revoked by an order made by the Secretary of State at the request of the Commission.
(7) Where the Commission proposes to revise a code of practice--
(a) it shall comply with subsection (3) in relation to the revisions; and

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(b) the other provisions of this section apply to the revised code of practice as they apply to a new code of practice.
(8) Failure to observe any provision of a code of practice does not of itself make a person liable to any proceedings, but any provision of a code which appears to a court or tribunal to be relevant to any question arising in any proceedings under this Act shall be taken into account in determining that question.
(9) The power to make an order under this section is exercisable by statutory instrument.
(10) Nothing in this section affects the Commission's powers apart from this section to give practical guidance on matters connected with its functions.").

The noble Lord said: I start by giving an apology. This amendment is proposed in my name and that of my noble friend Lady Nicholson, who is also the proposer of a Private Member's Bill on the issue of the regulation of private independent healthcare. The amendment imports what we believe to be one of the key elements of that Private Member's Bill, which we believe to be greatly preferable to Clause 21 in its current form.

During the debate on the previous group of amendments, the Minister spent some time discussing quite usefully what was meant by the words "shall be taken into account". We believe that the codes of practice set out in Amendment No. 85 are much clearer in law in terms of what the duties of the commission would be regarding inspection and enforcement. They are much clearer than simply a set of minimum standards which would be required to be taken into account. For that reason, we propose a set of codes of practice. Clearly, we have added in certain other bells and whistles, which we have already discussed, such as the way in which drafts of the codes of practice are submitted to both Houses of Parliament, the way in which they are laid on the Table, and so on, in terms of affirmative approval.

However, that is not the essence of the amendment. Its essence lies in proposed new subsection (8):


    "Failure to observe any provision of a code of practice does not of itself make a person liable to any proceedings, but any provision of a code which appears to a court or tribunal to be relevant to any question arising in any proceedings under this Act shall be taken into account in determining that question".

That is of great importance because it sets a legal standard. I do not believe that it imports a lack of flexibility, which is how in a sense the Minister justified the wording of the current Clause 21. Indeed, it also makes it clear that the codes of practice as a whole will inform the way in which the commission carries out its business.

It is not entirely clear how Clauses 20 and 21 interrelate in terms of the Bill. Amendment No. 85 expresses more clearly the way in which minimum standards will operate. Indeed, under a great many pieces of legislation, codes of practice are the norm. Therefore, this is not an unknown practice; indeed, it is very common, and the legal effect of codes of practice is clearly understood. Therefore, I commend Amendment No. 85 to your Lordships. We believe that it will create a much clearer legal regime than the

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current Clause 21 for the commission and, indeed, for any court or tribunal eventually required to adjudicate on the matter. I beg to move.

Earl Howe: I strongly support the thrust of this amendment. It is important that the commission should not, as it were, simply be the recipient of dicta from on high and implement those instructions. It should have a proactive role in the setting of standards and in relating national minimum standards to what is experienced on the ground and in proposing, up the tree, so to speak, improvements and variations.

The noble Lord has adopted an extremely imaginative and creative approach. Had I drafted the amendment, I might have done one or two things differently. But the essence of it has much merit and I hope that the Minister will take on board the thrust of it.

Lord Hunt of Kings Heath: I am grateful to the noble Lord, Lord Clement-Jones, for explaining the intention behind the amendment. I am not entirely convinced that his approach is better than the approach which we have adopted in the Bill, with a framework of regulations alongside national minimum standards.

The noble Earl, Lord Howe, suggested that there is a need for the commission to have a strong role in setting standards. While it is extremely important that Ministers should make the decisions on the national minimum standards, they will be informed by the views and experience which the commission has gained. One of the great advantages of setting up such a commission at national level is that because of the strong network of regional and local inspectors, it will be able to have a great deal of information and experience to offer the Government when it comes both to looking at national minimum standards and to revising them, as no doubt they will need to be revised, from time to time.

The amendment moved by the noble Lord, Lord Clement-Jones, proposes that there should be codes of practice on the standards which regulated establishments will have to meet. That implies that the national minimum standards require significant interpretation. That will not be the case. They are intended to be free standing. They will also be self-explanatory. The risk is that the code of practice which the noble Lord suggests will add another layer of interpretation and will risk causing confusion as to what is authoritative--the national minimum standards or the code of practice.

If there is a question as to whether the standards will be sufficiently clear, I refer the Committee to the first example that we have published, the document Fit for the Future?. Whatever Members of the Committee may think about some of the points contained in it, the one thing that is clear is that it is not just a broad list of standards. A considerable amount of guidance material has been built into it. That clearly will be a model to follow with other standards as we develop them.

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I have already described the relationship between the regulations and the national minimum standards. The commission's role is not simply checking whether the regulations and standards are being met; it is also expected to assist and advise providers on how to meet those standards. So if anyone has any doubt as to what a particular standard means, he will be able to contact the commission and ask for clarification. We want the commission to be able to hold more formal training events, such as seminars and conferences. I tabled an amendment on Monday to enable the commission to do that.

I assure the Committee that the proposals which we are bringing forward will introduce tough new regulatory requirements. At the same time, the commission will operate sensibly and properly in relation to the development of national minimum standards. Decisions on those standards will be made by Ministers but they will be informed by the experience and work of the commission. The interrelationship between the two will enable us to develop a rigorous approach to regulation, but with flexibility and the ability to ensure that in developing standards, we shall have full consultation with all those concerned.

Lord Clement-Jones: I thank the Minister for that reply. With this amendment and the previous set of amendments, we have managed to tease out very helpfully from the Minister just what is the basis of Clause 21 and how it will interrelate with the rest of the Bill.

There are still some issues regarding the legal basis of Clause 21 which need to be considered. But it will be helpful to fit together the Minister's replies in response to the last two sets of amendments; to look at Hansard very carefully; and then to consider whether the totality of that is satisfactory. In the mean time, I thank the Minister for his reply and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 86 not moved.]

Clauses 22 to 27 agreed to.

Clause 28 [Inspections by persons authorised by registration authority]:

[Amendment No. 87 not moved.]


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