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Lord Clement-Jones: My Lords, as this is the first amendment to which I wish to speak, I too take this opportunity to thank the Minister for his courtesy in writing to me in advance of the debate setting out the Government's rationale to the amendments that were moved in the other place. However, I should like to place on record the fact that I join the noble Earl, Lord Howe, in regretting the lateness of the hour at which we are debating these amendments--all 289 of them--tonight.
This Bill has had an extraordinary passage. We started in December. We had Third Reading in April and now, in July, we are faced with the Commons amendments at quarter past nine in the evening. That puts us all in a difficult position in terms of our wanting to consider the amendments in the same way as they were made; that is, over a long period of months. After all, the Minister will recall that there were 18 or 19 Committee sessions and Report stage was also pretty lengthy.
On the other hand, it is always difficult to find a balance between wishing to be helpful as the Bill moves through the House; to respond to criticisms made by opposition parties, but not to overload Members of
In Part II, which deals with establishments and agencies, can the Minister say whether or not my analysis is correct? That is to say, between the Bill leaving this House and coming back, we have introduced a separate system of registration as to ownership--that is, carrying on the business of a care home or other establishment--and that of a manager in a personal capacity. So, effectively, we have in fact got a dual registration system. I do not complain about that. It puts an added burden on those establishments. But there is a big difference in the way the registration will now be administered. That is of considerable significance and has been largely underplayed by Ministers both in the other place and by the Minister tonight in his exposition, clear though that was.
I welcome Amendment No. 37--I would say that, wouldn't I? It was originally suggested to me by the BMA and I felt it was the right avenue to take. But I am curious as to why the suggestion we made that it should relate to clinical care and not just to nursing care was not followed and the more narrow route was taken by the Government.
I also generally welcome from these Benches Amendments Nos. 38 and 52, one of which emanated from the official Opposition and one of which emanated from one of my honourable friends in the other place. Consultation is clearly vital, both with the private sector and with local authorities. That relates to Clause 21.
I am curious--perhaps this should have struck us earlier, certainly on listening to the commentaries now being made on the Bill by law firms and others--about Clause 22. In a sense it is the counterpart to Clause 21, which sets out the national minimum standards. It is not quite equivalent. Although it relates to national minimum standards, it seems that regulations will not be made. They are simply standards and it is not obvious what is the legal status of those national minimum standards under Clause 22. Perhaps I can be rather unfair to the Minister and ask whether he is able to comment on that.
Finally, I welcome Amendment No. 25. I leave it to the noble Lord, Lord Laming, to comment on whether or not his original intentions have been fulfilled. However, the way the Government have put it in terms of publishing in all but exceptional circumstances seems to be the right way forward. I am pleased that they chose that course.
Baroness Barker: My Lords, I refer to just two of the amendments in the group. I understand from the Minister's helpful briefing that Amendment No. 26 sets out the role of a manager. It requires a manager of an establishment to be named. I understand that; it is rather like the licensee of a licensed premises being named. However, I want to make sure that the Bill is consistent with the tenets of charity law. If an agency was run by a voluntary organisation or a charity, ultimately the trustees would be responsible for it in law. Does the Bill make it clear that although the actions of individuals--which are proven to be the actions of individual managers--may be subject to criminal prosecution, the responsibility for policies which affect the operation of an agency, which may be or have been approved by a board of trustees, are the responsibility of that board in law? I seek an assurance from the Minister that the amendment clarifies rather than confuses that issue.
I turn to Amendment No. 41. I understand from the Minister's helpful briefing that it is entirely reasonable that actions should be commenced within six months of notification of the commission of the offence. However, I am concerned at the limitation of three years since an offence was committed. In the presence of the noble Lord, Lord Laming, I hesitate to make my next point. However, many inquiries which are now taking place are examining events that took place decades ago but have only just come to light. I do not believe that it was ever the intention behind the Bill that wrongs from the past could not be put right. I hope that the Minister can prove me wrong.
I say to the noble Lord, Lord Clement-Jones, that I accept that it is not ideal to debate so many amendments at this hour of the night. I do not think that he would want me to repeat what I said to the noble Earl, Lord Howe. However, I believe that we have had a most constructive series of discussions and debates. I am convinced that the Bill is improved as a result and, what is more to the point, that the new regulatory regime that will be introduced and the new arrangements for the regulation of social workers and other social care workers will be much enhanced. I am sure that is how we would want our work to be judged.
The noble Lord, Lord Clement-Jones, asked me about the distinction between the person who carries on an establishment and the person who manages it. I do not accept that there has been movement on that during the passage of the Bill. The distinction has always existed as between the owner and the manager. I understand that that approach was adopted in the Registered Homes Act, which the Bill succeeds.
Amendment No. 199 seeks to establish that, for the purposes of the Bill, a community home provided by a voluntary organisation is taken to be carried on by the person who equips and maintains it and, if the Minister so designates, the body of managers provided for in the home's instrument of management.
I should add that some community homes are equipped by local authorities; others by voluntary organisations. A voluntary organisation may be an incorporated body and, as I have said, the Bill makes provision in Clause 28 for offences by bodies corporate. I am not sure whether that is entirely clear to the noble Baroness and I shall be happy to write to her with fuller details.
The noble Lord, Lord Clement-Jones, raised the issue of national minimum standards and how they relate to the regulations. We have, of course, debated this question at length. The important point is this: the national minimum standards stand or fall by the regulations. In terms of what the commission will do with those national minimum standards, it will have to take into account the degree of compliance or otherwise with the standards when making decisions about how a particular establishment is complying with the regulations. They are not free-standing; they stand within the context of the regulations in the preceding clause.
The noble Baroness, Lady Barker, referred to the three-year period. We consider that to be a reasonable period. There are various precedents in other legislation in that regard. When we were debating the order for the GMC, a three-year term was also considered appropriate. I am sorry. I think it was perhaps in the Health Service Commissioners Bill where a three-year period came into play. But there are plenty of precedents and we think that it is a reasonable length of time to embrace.
Lord Clement-Jones: My Lords, the Minister probably will not have noticed but under the Vaccine Damage Payments Act the time period has been extended to 21 years. It very much depends on the legislation involved.
Lord Hunt of Kings Heath: My Lords, I do not think there is a scientific law which states exactly how long the period should be. The Government have taken the view that three years is a reasonable period. Perhaps after that time it may be very difficult to establish the facts. It is simply a reasonable length of time.
So far as concerns the point raised by the noble Lord, Lord Laming, in relation to the publication of reports following inquiries, we believe that it would be only in very exceptional circumstances that the reports would not be published.
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