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Baroness Amos: My Lords, my noble friend is quite right. The single European Act and Maastricht involved changes in the operation of the EU greater than any likely to flow from the IGC. We need to repeat that point, so that people understand the processes. He is right that we need to ensure that the realities of such changes are understood.

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Lord Pearson of Rannoch: My Lords, when the Government say that claims by the Opposition and others that the treaty would undermine Britain's independence are absurd, surely it is that statement that is absurd. In the Giscard proposals, we are looking at a new and superior legal personality that means that national parliaments will be able to make laws in virtually every area of our national life only when Brussels cannot be bothered. That is what the exclusive and shared competence is saying, is it not?

The noble Baroness refuses yet again to give the British people a referendum on whatever constitution emerges from the IGC. I think that she said that under our constitution Parliament makes the law. Does she agree that the real position is that the British people have given Parliament—the House of Commons and this place—the power to make their laws and to take their decisions for them, except the power to give that power away?

Baroness Amos: My Lords, the noble Lord may wish to look historically at the situation regarding international and national law. It is an established principle of international law that a state may not plead its national law to escape its international law obligations, including its treaty obligations. The UK has given effect to the principle of the primacy of Community law through the European Communities Act 1972. That is not recent and not new.

Lord Grenfell: My Lords, the Statement that the noble Baroness was kind enough to repeat to us stated that the Government would work hard to achieve a successful outcome of the inter-governmental conference under the Italian presidency this year. That reflects the wording in the presidency conclusions, where the Council,

    "recalled its support for the approach and timetable put forward by the Presidency in line with the conclusions of the European Council meeting in Thessaloniki".

In light of the facts that there are probably less than 10 weeks to go, that the Italian presidency appears to be quite relaxed at the prospect of the treaty being signed some time in the new year—at least before April 2004, which is the absolute deadline—and that the Italian Government do not seem too concerned about the treaty being signed in Rome during their presidency, will the noble Baroness assure us that, in the IGC, Her Majesty's Government will be on the side of the angels and opt for getting it right rather than done early?

Baroness Amos: My Lords, the noble Lord is right that it is anticipated that we will conclude at the end of this year. However, I assure him that we want to get everything right. The IGC should complete its work and agree the constitutional treaty, to allow it to be signed by the member states of the enlarged Union as soon as possible after 1st May 2004 and in time for the June 2004 elections for the European Parliament.

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Health and Social Care (Community Health and Standards) Bill

4.34 p.m.

House again in Committee on Clause 49.

Baroness Noakes moved Amendment No. 283:

    Page 17, line 38, leave out subsection (2).

The noble Baroness said: I shall speak also to the other amendments in the group tabled in my name and that of my noble friend Lord Howe. The amendments concern the setting of criteria for use in reviews or investigations by CHAI and CSCI.

Amendment No. 283 deals with Clause 49 and deletes subsection (2) on a probing basis. The amendment has two distinct purposes. The first is to challenge yet again the involvement of the Secretary of State for Health, this time in the approval of criteria devised by CHAI. Under Clause 45, the Secretary of State will be setting standards against which CHAI will have to evaluate NHS bodies and award a performance rating. My noble friend Lord Howe has already explained to the Committee our profound misgivings about that. But why does the Secretary of State also have to approve the criteria that CHAI will use? Can CHAI not be trusted to do anything without the Secretary of State? That is the substantive challenge of the amendment.

My second purpose is to probe the meaning of criteria and the arrangements for devising and publishing criteria. Will the Minister explain what criteria actually are? Are they any different from targets? In what way will the new arrangements make a difference to an NHS which has been overburdened by targets, as my noble friend has said? I am sceptical about words such as criteria. They are elastic and can have many meanings. My dictionary says that criterion means a,

    "principle or standard by which something can be judged".

However, it is clear that criteria are not standards, because they are dealt with elsewhere in the Bill. So what are they? I hope that the Minister can explain.

Amendments Nos. 313, 314 and 315 are directed at Clause 59. Amendment No. 314 puts a small word—"not"—into Clause 59(4) so that the regulations may not require CHAI to get the approval of the Secretary of State or the Assembly for criteria that it will set under Clause 59. There is no good reason for the Secretary of State to consent to criteria under Clause 59, just as there was no good reason for him to approve them under Clause 49, as I have just said. Indeed, I challenge the Minister to give one good reason why the Secretary of State should have those powers.

Amendment No. 313 is a simple requirement for CHAI to consult on the content of any statement of criteria. It does not specify the consultees—it leaves that to CHAI—but it requires consultation. We think it important that the NHS move from the command-and-control era of the Government to one where consultation is the order of the day. Amendment No. 313 is therefore a symbol of that important change.

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Amendment No. 315 requires the affirmative procedure to be used for any regulations under Clause 59. That clause gives significant power to the Secretary of State to tell CHAI what to do. If we allow that impaired independence to remain in the Bill, it is right and proper for Parliament to approve the regulations that are made.

I have directed my comments at CHAI. Amendments Nos. 342, 355 and 356 attack the same issues for CSCI, which is similarly subject to excessive Secretary of State involvement. I beg to move.

Baroness Barker: I shall briefly speak to the amendments in the group to which our names are attached. In doing so I wish to echo, but not to repeat at great length, the arguments put forward so ably by the noble Baroness.

We have argued throughout our consideration of the Bill that the functions of CHAI and CSCI are the output of a health and social care system that can achieve what it is supposed to do, in preventive, rehabilitative and acute terms, only if it is widely understood and supported by health and social care agencies in their broadest sense, and not only in the narrow sense. Therefore we also think that others than the Secretary of State should be taking part in the direction of that. I do not see why he or she should have the ultimate approval of these bodies, which will be so important in the provision of strategic information and data. I support the noble Baroness, Lady Noakes, in her amendments.

Lord Warner: I shall try to help the noble Baroness, Lady Barker, by saying at the outset that we regard criteria as means of measuring standards. My comments will be in that context.

The two commissions themselves will be fully responsible for drawing up the inspection methodologies and criteria, as is right and proper for such independent organisations. However, we want to ensure that the criteria against which the NHS and local authorities are being assessed are consistent with the national standards set by the Secretary of State so that they are fair to the bodies that are being inspected and so that there is no confusion.

We have had several discussions about standards, and I have tried to explain on several occasions why we believe that it is for the Secretary of State to set national standards under Clause 49. I shall not repeat those arguments. Effectively, Amendment No. 283 would prevent the outcome that I have suggested we are trying to achieve; that is, to ensure that having done much work on the criteria, the Secretary of State can satisfy himself that the criteria are consistent with measuring the standards that rightly he will have produced. It is probably worth repeating that which has been said on several occasions. On both the issue of the Secretary of State producing national standards and producing draft criteria by CHAI and CSCI, there will be a consultation process in which draft criteria—

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draft standards—are put in the public arena for a process of widespread consultation with a whole variety of particular interests.

There will be no question of that being done in a hole in the corner manner. The proper order for that to be done is for the Secretary of State to make the standards clear, and it will be difficult for CHAI to produce criteria without knowing the national standards. CHAI will produce criteria for measuring them in that context of draft national standards. That is its primary responsibility. All that the Secretary of State will do is ensure that we do not have confusion by having criteria agreed with the best of intentions, but which are nevertheless not compatible with the measurement of the particular national standards that are agreed and settled by the Secretary of State.

If Amendment No. 311 were carried, it would not be possible to require CHAI to publish statements of the criteria it will use. That could lead to a lack of transparency in the way in which CHAI exercises its functions.

Amendment No. 314 seeks to remove the Secretary of State's power to make regulations requiring CHAI to obtain the consent of the Secretary of State to the criteria it has devised. For the reasons that I have described, we cannot expect the NHS effectively to serve two masters—a set of standards determined by the Secretary of State and a set of criteria which are not compatible with them, and which are agreed by CHAI. We do not expect there to be difficulties in agreeing those criteria, but it is important that we do not cause confusion. Given the importance that patients, the public and the NHS will attach to CHAI's verdicts, satisfying ourselves that CHAI's criteria will be consistent with national standards is important for managers, clinicians and the public.

I agree with the sentiment behind Amendment No. 313. I have said that I have no doubt that CHAI will want to use its expertise to make sure that the criteria it uses in its review and inspection of NHS bodies will be fair and reflective of the needs of patients, and the realities of the world within which healthcare providers operate. We are tabling our own Amendments Nos. 314A and 354A in relation to this clause and the equivalent CSCI clause, enabling regulations to provide for CHAI and CSCI to be obliged to consult specified persons. We think that by requiring CHAI to consult prescribed persons in relation to regulations issued by the Secretary of State or the Assembly, Amendments Nos. 314A and 354A are more complete and I hope that noble Lords will support them.

Amendment No. 315 would place a duty on the Secretary of State to consult such persons as he considers appropriate as well as CHAI before making regulations requiring CHAI to devise and publish statements of criteria to be used in the exercise of specified functions. I am sure that my right honourable friend the Secretary of State will be considering whether and to what extent it would be appropriate for him to consult persons other than CHAI before making any regulations under this clause. In my view,

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it is unnecessary to amend this clause in order to require him to consult, and that would be out of line with the wording of most of the other powers to make secondary legislation in Part 2. I hope that noble Lords will not press Amendments Nos. 312 and 313 in place of those that I have tabled.

Amendments Nos. 315 and 356 seek to ensure that no regulations may be made under Clauses 59 and 83 unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House. Clause 191(4) stipulates that:

    "Any power to make . . . regulations under this Act is exercisable by statutory instrument".

Subsection (5) states that the regulations are,

    "subject to annulment in pursuance of a resolution of either House of Parliament".

That has been normal practice in relation to the regulation-making powers in other legislation covering the regulation of health and social care services. So we have continued as in the past. We are not sure that a further amendment along the lines proposed is necessary.

4.45 p.m.

Baroness Carnegy of Lour: Regarding the question of whether the regulation should be by annulment or by affirmative resolution, the Minister said that previously the regulations involved negative resolution. Will there be much greater powers in the proposed regulations than existed before? The Delegated Powers and Regulatory Reform Committee looked rather cursorily at that point, and took the point that the Minister made. However, if the new powers are much greater, there may be an argument for my noble friend's suggestion. What is the difference between the powers of the previous body—I cannot remember its name; was it called the CHI?—and those of CHAI?

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