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Earl Howe: My Lords, the Minister's comments in support of the amendment are most welcome. I thank him for taking on board the concerns expressed on the issue in Committee by noble Lords from all sides. We all agree that no dispute panel will work unless each party to a disagreement has confidence in the individuals who constitute the panel.

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Amendment No. 50 provides a means to ensure the sense of ownership that we want to engender among health service bodies and local authorities. However, I wonder whether it is really enough—and here I turn to my Amendments Nos. 51 to 54, which are grouped. The Minister mentioned the forthcoming guidance and said that the Government will make clear that the consultation that a strategic health authority must carry out among the relevant local authorities is designed to ensure that all parties have confidence in the dispute resolution panel. That is an exemplary aim, but I confess that I am somewhat disappointed that the Minister does not envisage building a suitable provision into the regulations to that effect.

To incorporate that into the guidance seems to me second or even third best, because guidance is not binding. As the Minister is aware, I should ideally like to see in the Bill—or, failing that, in regulations—a specific provision to the effect that the setting up of the panels should be the joint responsibility of the strategic health authority and local authorities. In Committee, the Minister did not advance any real objection to that idea beyond saying that it would be more straightforward if we gave the responsibility to the strategic health authorities. That sounds more like expediency than anything else.

I note that when referring to the make-up of the panels the draft regulations mention one representative of the NHS and one representative of local authorities. If I could be sure what the word "representative" meant, I might feel a little more comfortable. A local authority representative does not carry the connotation of someone who has been nominated by the local authority. The right reverend Prelates in your Lordships' House often represent other faiths; but they have not been nominated by those faiths. The two are different concepts. For local authorities merely to be consulted on who is chosen—welcome though that is—does not guarantee that they will be happy with whomever is chosen.

I do not want to press the Minister unreasonably because he seems to have conceded the principle at issue, which I am sure that we all appreciate. However, it would be excellent if he could undertake to reconsider the draft regulations to see what scope there may be to provide further reassurance to local authorities in the sense that I have just described.

Lord Clement-Jones: My Lords, I add the voice of these Benches both to thank the Minister for the distance that he has travelled in Amendment No. 50 and to support Amendment No. 51 and others tabled and spoken to eloquently by the noble Earl, Lord Howe.

The issue is whether the Minister cannot see his way to move that extra yard. I think that we are close to something that would be acceptable. The current government amendment does not quite fit the bill, but it would not take a great deal of alteration to reach agreement on it.

Lord Hunt of Kings Heath: My Lords, I always endeavour to be helpful and I am certainly prepared to

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reconsider the matter between now and Third Reading, although my amendment goes an awful long way to meet the point of concern.

If we consider the draft regulation, the problem with assigning a joint responsibility is that we run the risk of establishing a bureaucratic approach to determining how a strategic health authority shares responsibility with several local authorities. If they cannot sort that out and reach agreement, that would cause problems. It would be best to place the responsibility on one statutory agency—which, none the less, had to consult with relevant local authorities.

In response to the noble Earl, of course I want local authorities to have confidence in the panels. Indeed, given that they are, in a sense, advisory, it would not make sense to advance a proposal that did not command the local authorities' confidence. I also accept that, where we seek one representative of local authorities, we will want local authorities to propose names for the list of members. I readily accept that local authorities should have confidence in the names on the list. It is the same for NHS authorities. But, having said that, I will look at the matter again to see if I can give local authorities any further comfort. I understand that local authorities recognise that there has been a change in emphasis, and they welcome it.

On Question, amendment agreed to.

[Amendments Nos. 51 to 54 not moved.]

9.30 p.m.

Lord Hunt of Kings Heath moved Amendment No. 55:

    Page 6, line 10, leave out "established" and insert "appointed"

On Question, amendment agreed to.

Clause 8 [Regulations]:

Lord Hunt of Kings Heath moved Amendment No. 56:

    Page 6, line 36, at end insert "and different provision for different areas"

The noble Lord said: My Lords, this is a minor amendment intended to tidy up the drafting to put it beyond doubt that the regulations that set the rates of payment may make different rates of payment for different areas. I referred to the matter earlier. I beg to move.

Baroness Noakes: My Lords, I shall speak to Amendments Nos. 57 and 61. They deal with the regulation-making powers in Clauses 8 and 12 and require the regulations to be drawn up in consultation with local government.

The Minister and I will doubtless disagree on the analysis that the Bill punishes local authorities for delayed discharges. That is certainly how it feels from the local authorities' perspective. They have, therefore, a real interest in the content of the regulations because they could affect profoundly the working practices and finances of local authorities.

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The Government issued draft regulations recently, only a few weeks before they had initially planned to implement them. I shall read what the Local Government Association said about those draft regulations:

    "It is already clear that there are significant issues which are still clouded in uncertainty. These include defining the scope of the scheme; the giving, receiving and withdrawing of notices; the circumstances of exemption from financial liability and the process for establishing disputes panels".

In other words, practically everything about the scheme remains unclear.

This amendment only asks that local authorities are consulted. I have no doubt that they are consulted at present—whether or not they are listened to remains to be seen. But the important point is that there is no guarantee that local authorities will be consulted on any future regulations issued under the Bill, but they will have a vital interest in it.

In Committee, the Minister said that his department,

    "hardly moves an inch without consulting local authorities on social care issues",

and urged local authorities to have no worries on that score. But, significantly, he did not commit to consulting local authorities on any future regulations under the Bill. Will he reconsider that position?

Lord Hunt of Kings Heath: My Lords, I hope that I can reassure noble Lords that we will continue to consult local government on all those matters. We have good procedures for involving local authorities in the work that we do. The Local Government Association is part of our stakeholder group for the Bill. Regular meetings take place between my department and local government. The two draft regulations that we are discussing have been the subject of public consultation. There are frequent meetings with the Local Government Association.

We have made our intentions in respect of the regulations for both parts of the Bill clear to everyone, including local government. As the Bill is implemented and we gain experience, we may wish to revise the regulations. I have no doubt that, at that time, we will again be happy to consult local government.

On Question, amendment agreed to.

[Amendment No. 57 not moved.]

Clause 9 [Interpretation]:

Lord Hunt of Kings Heath moved Amendment No. 58:

    Page 7, line 2, at end insert—

""carer", in relation to a qualifying hospital patient, means a person who—
(a) provides or intends to provide a substantial amount of care on a regular basis for the patient; and
(b) is entitled to ask for an assessment under section 1 of the Carers and Disabled Children Act 2000 (c. 16);"

On Question, amendment agreed to.

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[Amendment No. 59 not moved.]

Lord Hunt of Kings Heath moved Amendment No. 60:

    Page 7, line 10, at end insert—

""the relevant day" has the meaning given in section (Duties of responsible NHS body following notice under section 2)(6)"

On Question, amendment agreed to.

Clause 12 [Free provision of services in England]:

[Amendment No. 61 not moved.]

Clause 13 [Free provision of services in Wales]:

Lord Thomas of Gresford moved Amendment No. 62:

    Leave out Clause 13 and insert the following new Clause—

The Assembly may by regulations made by statutory instrument require that any community care services provided by local authorities in Wales, in discharging any statutory function, may be provided free of charge to the person to whom they are provided."

The noble Lord said: My Lords, with the leave of the House, I move the amendment on behalf of my noble friends Lady Barker and Lord Clement-Jones. I apologise for intruding upon your Lordships' deliberations so late in proceedings, but if the Bill seeks to amend the constitutional arrangements in Wales, it would be a matter of considerable concern to us.

Clause 13 would limit the regulations that may be made by statutory instrument by the Assembly to precisely the same provision as may be made by the Secretary of State under Clause 12 with regard to local authorities in England. The amendment tabled by my noble friends has the support of the coalition partnership government in the Welsh Assembly. As I understand it, the amendment has the support of the Minister for Health and Social Services in the Welsh Assembly. I hope that the noble Lord, Lord Hunt of Kings Heath, will assure me that there has been some consultation with the Welsh Assembly on the issue.

The policy pursued by the Liberal Democrats in Wales is to have free care for the elderly across the board, wherever it may seem to be applicable. In the manifesto on which we are to fight the forthcoming Assembly elections, we seek an extension of current financial thresholds to £60,000, and we would like to eliminate thresholds in the case of care for the elderly. We feel that we should have the power to do that. Where the money will come from is the interesting question, and it may not be immediately available. However, the power to make such provision and to advance services for the elderly and others—community services, generally—in Wales should remain with the Welsh Assembly. For example, the Assembly, with Liberal Democrat support, has created a scheme, unique to Wales, of free six-week post-hospitalisation care, and it is important that similar provision should be made in other areas.

There is one further matter. I understand that there is shortly to be a vote in the Welsh Assembly on the provision of free personal care. That policy has executive approval and has been worked out in some

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detail. As I have said on many occasions, the way in which the National Assembly for Wales approaches the making of regulations is far superior to the way in which regulations are promulgated in this Parliament. Considerable consultation and thought has been put into it.

It would appear from Clause 12 as currently drafted, which binds the National Assembly for Wales through the wording of Clause 13, that the Assembly would be unable to do what it wanted and that its powers therefore will be effectively fettered. It is important that when a clause relating to Wales is included in what perhaps I may describe as an "English" Bill the constitutional implications are thought through. This is an issue which Welsh Peers and Members of Parliament frequently discuss among themselves. It forms part of the submissions being made by all parties to the commission that the noble Lord, Lord Richard, is considering. I look forward, with interest, to the views that the Minister will express on this topic. I beg to move.

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