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Lord Warner: I am sure that Sir Ian Kennedy and his colleagues would not look favourably on any suggestion that they should be recommending cruel and unusual punishments. They may recommend special measures that they feel, given CHAI's expertise and first-hand account of the situation, should be taken to rectify the failings it has identified. In doing

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so, CHAI must give a clear justification for its recommendations. It will then be for the Secretary of State to consider what further steps should be taken.

We do not think that it is right to prescribe the detail of this in legislation. CHAI will consist of people with expertise who will go to a specific body. It will find out what may or may not be wrong and my expectation is that it will tailor its recommendations to putting things right as speedily as possible in that particular set of circumstances. Those are the special measures that we are talking about.

Should CHAI wish to recommend measures which are not specified in regulations there would in my view be an unacceptable delay while the regulations had to be mended. That could be an effect of the amendment. It would be unworkable for both parties to have their hands tied in such a way, especially given the unpredictable nature of some of the things that may be discovered by an inspectorate when reviewing a body. That is best left to the judgment of CHAI; we are sure that in order to have credibility with the NHS, the special measures that it recommends will be fit for purpose given the circumstances that it has inspected.

5.30 p.m.

Baroness Noakes: This is one of the rare occasions on which the government are prepared to trust CHAI's judgment, so I suppose that one should not be ungrateful for having identified one such small area. However, because this is such an important issue for the NHS bodies affected by the provision, it is right that the Bill should—whether directly or indirectly by regulation—specify what are the boundaries within which recommendations may be made for special measures.

That is such a vague term. It has no recognised meaning in the NHS and there are no principles by which to decide what it can and cannot do. For the sake of clarity for the NHS, it is important to ask the Government to set out what sort of things CHAI or CSCI could recommend. If, over time, those things became insufficient, that could be amended by further regulations, but clarity would again be important.

Although the Minister's response was good on the basis that he trusts CHAI, it was unhelpful because it did not provide important clarity to the NHS. We may want to return to the matter on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 301 not moved.]

Clause 52 agreed to.

Clause 53 [Functions relating to Secretary of State and Assembly]:

Baroness Noakes moved Amendment No. 302:


    Page 20, line 32, after "to" insert "make regular reports available to the public about and"

The noble Baroness said: I shall speak also to Amendments Nos. 304 and 339. The amendments provide for CHAI and CSCI to make regular reports to the public. Amendment No. 302 relates to making public reports, alongside keeping the Secretary of

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State and the Assembly informed on healthcare provision by NHS bodies. Amendment No. 339 provides the equivalent for CSCI. Amendment No. 304 provides for public reports alongside keeping the regulator informed about foundation trusts.

When this was debated in another place, the Minister, Mr David Lammy, said that it was:


    "obvious that the new CHAI will want to keep patients and the public informed of developments in the NHS and in independent health care provision".—[Official Report, Commons, Standing Committee E; 5/6/03; col. 577.]

With respect, there is nothing obvious about that. CHAI could well start out with good intentions; I have no good reason to doubt that; but who is to say that informing the public will remain a priority? There is no mention of it in the basic duties of CHAI or of CSCI. Those of us who have operated in and around the public sector for many years have acquired a degree of cynicism about the long-term commitment to public information.

That is why I believe that the Bill will be improved by the amendments. I beg to move.

Baroness Masham of Ilton: How will CHAI inform the public; in what way?

Baroness Howarth of Breckland: I would support the noble Baroness, Lady Noakes, except that I believe that the provision is contained in Section 7 of the previous Act—certainly for CSCI's responsibility. However, the amendment also relates to my previous comment, which is that such public reports will overall be reflected in government policy, so the noble Baroness should take heart from that.

Lord Warner: I have some sympathy with the intent behind the amendments, but I must resist them none the less. Of course we are all keen to improve public information about performance of public services, and the Government are doing so. If I may say so, that is why we favour performance ratings, but there seem to be different views about that.

The Bill already contains provisions designed to ensure that the commissions' expertise and understanding of services are made available to the public. That may help the noble Baroness, Lady Masham. Clauses 51 and 57 for CHAI and Clauses 78 and 80 for CSCI provide that following an inspection, the commissions must publish reports of their findings. Most fundamentally, the "Reports and Information" clauses for CHAI and CSCI—Clauses 63 and 85 respectively—place a duty on them to send out copies of reports to those who request them. The commissions are also required to produce an annual report to Parliament that will also be available to the public.

So there are substantial provisions in the Bill to ensure that those reports are in the public arena. To place a wide-ranging general duty on the commissions to keep the public informed about services, as the amendments are framed, could give rise to important

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practical problems. Given the wide-ranging demands that could be placed on the commissions, such a duty could place a serious burden on them.

However, I am willing to think further about the issue before Report to see whether there is anything practical that we can do to help.

Baroness Noakes: I am grateful to the Minister for his response—in particular, for his agreement to take the matter away to reconsider it. There is a difference between the information provisions that he mentioned, which are scattered throughout the Bill, and those referred to in the amendments. It is that information that we are trying to ensure will be in the public domain and will not be subject to a decision, which might in future not be open and transparent, about whether to keep the public informed. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments No. 302ZA and 302A not moved.]

Clause 53 agreed to.

Clause 54 [Functions relating to regulator]:

The Deputy Chairman of Committees (Lord Murton of Lindisfarne): Before calling Amendment No. 303, I must tell the Committee that if it were agreed to, I should be unable to call Amendment No. 304 because of pre-emption.

Earl Howe moved Amendment No. 303:


    Page 21, line 6, leave out "is to keep the regulator" and insert "and the regulator are to keep each other"

The noble Earl said: Clause 54 deals with the functions of CHAI relating to the regulator. In subsection (1), CHAI is required to keep the regulator informed about the provision of healthcare by and for NHS foundation trusts. The process should work both ways. Obviously, the regulator is to a large degree dependent on CHAI to inform him of any concerns about the quality or availability of services provided by foundation trusts. Equally, CHAI ought to be able to rely on the regulator to inform it of any matters that may help it to perform its functions better.

I am here thinking especially of any notable example of good practice in a foundation trust—bearing in mind that in Clause 47(1) the general function of CHAI, before all others, is that of encouraging improvement in the provision of NHS healthcare. But it is also possible to imagine the regulator being made aware of an area that merits possible investigation by CHAI—not only in the foundation trust concerned but in the NHS more widely. An example might be a deterioration in the delivery of cancer services by a foundation trust within a cancer network or plans by a foundation trust to reconfigure one of its services in a way that may have a knock-on effect on other NHS bodies. In those and other such circumstances, the regulator should have a duty to communicate any concerns to CHAI. That ought to be a specific duty. I beg to move.

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Lord Warner: The regulator and CHAI will be under a duty to co-operate with each other under Clause 54(3). That duty will ensure that the regulator keeps CHAI informed of any other information relevant to the exercise of CHAI's functions. However, the regulator does not have a function of reviewing healthcare provision of NHS foundation trusts. It is not therefore sensible to require him to keep CHAI informed about such provision. The distinction that we make is not to place a duty on the regulator, as the noble Earl proposes, but to use the duty to co-operate in Clause 54(3) to ensure that the regulator makes available to CHAI information relevant to the exercise of its functions.


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