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Lord Warner: The point that the Delegated Powers and Regulatory Reform Committee was making was in other areas, where there has been a widening of scope, we should move from negative to positive. Regarding this matter, my understand of what the committee was saying was that the arguments that I have outlined were largely valid; that there was not such a significant difference in the scope of the powers that it would justify moving from negative to affirmative resolution. That was the only point that I was trying to make.

Baroness Carnegy of Lour: From memory, I do not think that the committee—of which I am a member—looked at the difference between the powers. Would the Minister indicate whether the difference is significant? That was my point.

Lord Warner: My judgment is that they are not so significantly different that we would want to move from negative to positive. In other parts of the Bill that we shall discuss, we will acknowledge the force of the arguments put forward by the Delegated Powers and Regulatory Reform Committee and make adjustments.

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This matter did not seem to us to be one where the range of powers that the commissions have are so significantly different that we should move from negative to positive in this regard.

Baroness Noakes: I thank the Minister for his reply and the noble Baroness, Lady Barker, for her support. My noble friend Lady Carnegy raised an important question on the extent to which the powers were different. Will the Minister reflect on his answer? I do not believe that this part of the Bill repeats powers that already exist. Perhaps we are in virgin territory. I hope that he will take the issue away and look at it again.

I thank the Minister for defining the criteria. At least we have an explanation of them on the record. I shall carefully consider it—it is helpful to have it laid out. However, there is a difference of opinion. The Minister says that the Secretary of State must set the standards and then ensure that CHAI sets the criteria in line with how the Secretary of State believes the standards should be interpreted. Really, the Secretary of State wants to set the whole lot. That is what lies behind the whole of the Bill. The Secretary of State does not trust even the bodies he is claiming are independent and have an important part in the future of the NHS, such as CHAI and CSCI. A complete lack of trust lies behind the way in which the Bill has been drafted.

We take a contrary view. We believe that these bodies should be independent and capable of being trusted to, for instance, turn standards into a means of measuring. We do not believe that the Secretary of State needs to be involved down to the final level. The proposal is indicative of the way in which the Secretary of State will not let these bodies go. There is a fundamental difference between the Government's view and the view of the Conservative Benches and that of the Liberal Democrat Benches as well.

We spoke about consultation. The Minister introduced his own Amendment No. 314A, which requires consultation with specified persons. Our Amendment No. 313 trusted CHAI and proposed that CHAI should consult on the basis of the individuals and groups it believed to be appropriate. Again, the Secretary of State is taking additional powers to tell CHAI exactly what to do. One might ultimately query how much freedom CHAI will have by the time the little regulations here and the little regulations there add up to tying CHAI and CSCI in knots.

We are not content with this part of the Bill. We will read carefully what the Minister has said, but on Report we will return to the involvement of the Secretary of State and the way in which it is manifested in different parts of the Bill. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 284 not moved.]

Clause 49 agreed to.

Clause 50 [Reviews: England and Wales]:

Earl Howe moved Amendment No. 285:

    Page 18, line 13, leave out "and" and insert "or"

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The noble Earl said: In moving Amendment No. 285, I shall speak also to Amendments Nos. 286 and 287. This is a probing amendment. It probably looks fairly innocuous, but its purpose is to test whether the wording in subsection (1)(a) would cover the provision of healthcare by independently run diagnostic and treatment centres.

At present, the subsection reads:

    "The CHAI has the function of conducting reviews of—

    (a) the overall provision of health care by and for NHS bodies".

My amendment proposes that it should read,

    "by or for NHS bodies".

We know that the new fast-track diagnostic and treatment centres will be run for the NHS, but many of them will not be run by the NHS. In fact, they will be run by a range of companies from Britain, Canada, South Africa and the United States.

Already some 20 such treatment centres within the NHS are either operational or are soon to come on stream. There is no problem about the centres coming under the scrutiny of CHAI as they are providing care both by and for NHS bodies. Clearly, the privately run clinics will be in a different category. I hope that the Minister can tell me that the amendment is unnecessary, but it is not at present clear to me that it is. I beg to move.

Lord Warner: I can give the noble Earl the assurance that all types of diagnostic and treatment centres are covered. I shall spare him the note I have on the logic of "by" and "for", but I am happy to write to him if he wants Parliamentary Counsel's advice on the matter.

Earl Howe: I am happy to accept the Minister's assurance on the matter and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 286 to 287A not moved.]

Clause 50 agreed to.

Earl Howe moved Amendment No. 288:

    After Clause 50, insert the following new clause—

(1) If the regulator so requests, the CHAI must conduct a review of, or investigation into, the provision of any healthcare by or for an NHS foundation trust.
(2) Where the CHAI conducts a review under this section it must submit its report to the regulator who shall decide whether and how the report is published."

The noble Earl said: In moving Amendment No. 288, I shall speak also to Amendments Nos. 291A and 294. These are simple amendments, but collectively they address an important point. As a general principle, I believe that CHAI ought to be free to decide what work is important for it to carry out within its own priorities. For that reason, I am inherently hostile to the provision in Clause 51(4), which gives the Secretary of State power to insist that CHAI conducts a particular review of his choosing. The Secretary of State already has control over CHAI's purse strings.

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He should not also be given the right to decide how CHAI should spend the limited money it has at its disposal.

If the Government insist that the Secretary of State should be allowed to do this, there is one area he should definitely keep his hands off; that is, foundation trusts. Requiring CHAI to carry out investigation into a foundation trust is for the regulator and not for the Secretary of State. The regulator is meant to be independent and there should not be a power for the Secretary of State to go in over the regulator's head.

By the same token, I suggest in my Amendment No. 288 that there ought to be an explicit power for the regulator to request CHAI to conduct a review or an investigation into a foundation trust and for CHAI to be obliged to do that when asked. The duty of the regulator and CHAI to co-operate does not seem to me sufficient to cater for situations where it may not suit CHAI to devote its resources at a particular time to carrying out an investigation not of its choosing, yet the regulator may perceive that the foundation trust is falling seriously short of performing its functions and want the matter looked at without delay.

At the back of my mind is the fear that with CHAI and the regulator working in parallel, we shall, if we are not careful, see an inefficient build-up of regulatory capacity. It is much better to have clarity on who does what. It should be CHAI's role to investigate and carry out reviews and the regulator's role to act on such reviews. There is a danger that the structures in the Bill will generate too much oversight and we should guard against that. I beg to move.

5 p.m.

Lord Warner: I appreciate the intention of Amendment No. 288, but I want to reassure the noble Earl that CHAI already has the function under Clauses 50 and 51. Using such powers, the commission is already empowered to conduct reviews and investigations of the provision of healthcare by and for all NHS bodies. In particular, under Clause 51(4), CHAI must conduct a review of the provision of any healthcare by or for an NHS foundation trust if the Secretary of State so requests. I know that the noble Earl takes objection to this, but subsection (2) of the new clause would place a duty on the regulator rather than on CHAI to decide whether and how any report made by CHAI in relation to foundation trusts was published.

Perhaps I may remind the noble Earl and the Committee that we are establishing CHAI as the health watchdog that the public can trust as the authoritative independent commentator on the quality of NHS healthcare. I find it strange that, having argued passionately to increase CHAI's independence, the amendment seeks to reduce it. We see no reason why the commission should be expected to submit its reports to anyone for either prior clearance or a decision on publication.

Amendments Nos. 291A and 292 would, if carried, remove the Secretary of State's specific power to require CHAI to undertake reviews and investigations

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in relation to the provision of healthcare by and for NHS bodies or to review arrangements by those bodies for the purpose of discharging their duty of quality under Clause 44.

Amendment No. 292 would replace the Secretary of State's power to require with a provision expressly empowering CHAI to carry out reviews in response to requests. Amendment No. 291A would simply remove the Secretary of State's power to require without putting anything in its place. We believe it is important that the Secretary of State, who still remains accountable to Parliament for the provision of healthcare in England, has the ability to require CHAI to inspect a specific NHS body or type of service so that issues of interest to the public or Parliament may receive appropriate scrutiny by the inspectorate.

We do not feel that being able to respond in that way impinges on CHAI's independence because, in most cases, CHAI itself will proactively initiate such work into problems that it identifies emerging from its other review work. CHAI may also choose to initiate a review or investigation as a result of information that it receives from patients, healthcare staff or the general public. That, quite rightly, will be for CHAI to determine.

We also do not feel that Amendment No. 292 would add anything useful to CHAI's general powers in the Bill. Nothing in the Bill prevents CHAI carrying out reviews in response to requests from others.

Amendment No. 294 would prevent the Secretary of State requesting that CHAI conduct a review of, or investigation into, the provision of any healthcare by or for an NHS foundation trust or reviews of the arrangements made by those trusts for the purpose of discharging their duties under Clause 44. That clause concerns the duty of quality placed on each NHS body to put and keep in place arrangements for the purpose of monitoring and improving the quality of healthcare that it provides. The duty of quality will therefore apply to foundation trusts, and it is proper for the Secretary of State—again, because of his parliamentary accountability—to be able to request CHAI to undertake such a review or investigation.

We do not believe that anything in the present Bill suggests that CHAI will in any way be dragooned by the Secretary of State into doing things that are inappropriate. However, we consider it important that, in discharging his parliamentary accountability, the Secretary of State can give directions where it is necessary to do so in relation to a particular NHS body.

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