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Lord Hunt of Kings Heath: I wonder whether I may use this debate to raise an issue regarding potential

20 Oct 2003 : Column 1319

additional functions for CHAI. In its report, Independent Regulators, which I have read, the Better Regulation Task Force points out:


    "The Commission for Health Improvement does not have an appeals mechanism".

I question whether that is right given the importance of the reviews currently undertaken by CHI and in future by the Commission for Healthcare Audit and Inspection.

The question which I should like my noble friend to consider between Committee and Report stage is whether it will be possible through Clause 58 to add an additional function to ensure that CHAI is subject to independent review. Noble Lords opposite have disagreed with me about the issue of performance ratings. I do not think there is any doubt but that a CHAI review can have very important consequences for the individual institutions inspected. For example, a combination of a "poor" or a "very poor" review by CHAI with perhaps a no-star rating is almost certain to lead to people losing their jobs within that organisation.

There is an issue of "felt fair" justice. When the results of work by CHAI potentially lead to such adverse consequences on an organisation, there ought to be a mechanism whereby the work of CHAI is subject to an appeal or review mechanism. In raising the issue, I declare that I am a member of the advisory board of CHAI, but I am in no sense speaking on behalf of CHAI in this matter. It is important to ensure that there is a "felt fair" mechanism. Would my noble friend be prepared to look at it between Committee and Report?

Lord Clement-Jones: I hesitate to intervene at a point where I have taken no part so far. The noble Lord, Lord Hunt, raised a most interesting question as regards the Better Regulation Task Force itself. The Minister will know that next week I shall be taking the opportunity to ask a Starred Question about the Better Regulation Task Force report, which is an extremely good report. When Mr Arculus launched the report, the NHS was described as the greatest victim of regulatory excess.

As the noble Lord, Lord Hunt, said, one of the report's recommendations is that all independent regulators should have an appeals' mechanism so that stakeholders can challenge decisions without recourse to judicial review. The regulator should, however, be able to dismiss time-wasting appeals. That seems a good balance. The Minister is as keen on balance as he is on flexibility. I am sure that that will strike a chord.

It may be that we shall need further consideration of the report produced by Mr Arculus and his colleagues between Committee and Report stages. Some fruitful mining may be made of it in terms of further amendments on Report. In the mean time, it would be useful if the Minister could indicate his view as to the suggestion made by the noble Lord, Lord Hunt.

Lord Warner: As the noble Lord will concede, it is extremely difficult to keep one's balance when

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showing flexibility, but I shall endeavour to do so. As I said in previous discussions, we shall examine carefully the Better Regulation Task Force report on a number of aspects relating to the Bill. I shall take note of the points raised by my noble friend Lord Hunt and Members of the Committee and we shall consider them further.

As regards the amendment moved by the noble Baroness, Lady Noakes, we have no plans to add functions at present. But the provision—I think that she quoted the case for this power—is important in relation to the future. Certainly, I do not fancy my chances at always forecasting the future accurately in this area. It seems a sensible provision. In answer to the noble Baroness's other question, we have used the powers in the 1999 Act to give new functions to the Commission for Health Improvement in relation to NHS bodies that were not listed in the 1999 Act. That indicates that, even in a quite short period of time, there may be a need to act in this area, particularly in a field such as healthcare where the situation changes quite quickly.

Turning to Amendments Nos. 310 and 354, perhaps I may remind Members of the Committee that the House of Lords' Select Committee on Delegated Powers and Regulatory Reform considered the Bill in its 24th report. It did not think that it was a cause for concern that these regulations were made under the negative procedure. I want to put that on the record.

Amendment No. 354 seeks to ensure that regulations made under this clause are subject to approval by resolution of each House of Parliament; that is, the affirmative procedure. The Select Committee on Delegated Powers and Regulatory Reform considered the Bill and, in its report, states:


    "None of the powers conferred on the Secretary of State is subject to affirmative procedure. Except where NAW procedures apply, and except in a small number of cases (such as commencement orders) where there is no Parliamentary procedure, the negative resolution procedure applies throughout".

The report continues:


    "The National Health Service's legislative structure has, since its inception, left a great deal to subordinate legislation subject to negative procedure . . . and directions. This basic framework has been maintained on successive reorganizations, including those effected by the various enactments of recent years. We do not consider, therefore, that the number of delegated powers in the bill is a cause for concern".

I just want to put that on the record in relation to these particular amendments.

Baroness Noakes: I thank the Minister for that reply. I thank the noble Lords, Lord Hunt of Kings Heath and Lord Clement-Jones for raising the important issue of the appeals mechanism. We touched on that earlier in Committee deliberations. The report of the Better Regulation Task Force is clearly very important.

However, those matters were not the focus of the amendments that I moved earlier about whether there should be affirmative regulations for adding

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additional CHAI functions. The Minister argued that he wants to keep this power to cope with changes over time. Perhaps we may agree to differ on whether there is enough legislation already to cover almost anything that any reasonable person could imagine occurring under the existing Bill. But if the department says it needs that power, the question arises as to what scrutiny should be applied.

I heard what the Minister said about the Delegated Powers Committee, whose report I have already read. I have the greatest respect for that committee, but it is incumbent upon Members of this Committee to consider whether, in individual cases, they are content to leave matters to the relatively light parliamentary scrutiny that negative procedure involves. This is an area where we should keep the extension of CHAI and the extension of CSCI under the firm control of Parliament: the affirmative procedure is good in this case. I should like to seek the opinion of the Committee.

6.16 p.m.

On Question, Whether the said amendment (No. 310) shall be agreed to?

Their Lordships divided: Contents, 99; Not-Contents, 111.

Division No. 1

CONTENTS

Addington, L.
Alderdice, L.
Anelay of St Johns, B.
Astor of Hever, L. [Teller]
Attlee, E.
Barker, B.
Blackwell, L.
Blatch, B.
Bledisloe, V.
Bradshaw, L.
Bridgeman, V.
Brougham and Vaux, L.
Burnham, L.
Byford, B.
Campbell of Alloway, L.
Chan, L.
Clement-Jones, L.
Colwyn, L.
Cumberlege, B.
Dixon-Smith, L.
Eccles of Moulton, B.
Elton, L.
Emerton, B.
Erroll, E.
Fearn, L.
Ferrers, E.
Fookes, B.
Glenarthur, L.
Gray of Contin, L.
Hanham, B.
Henley, L.
Holme of Cheltenham, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hunt of Wirral, L.
Jenkin of Roding, L.
Jopling, L.
Kilclooney, L.
Lamont of Lerwick, L.
Liverpool, E.
Livsey of Talgarth, L.
Lucas, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Mackie of Benshie, L.
MacLaurin of Knebworth, L.
McNally, L.
Maddock, B.
Mancroft, L.
Mar, C.
Mar and Kellie, E.
Marlesford, L.
Methuen, L.
Miller of Chilthorne Domer, B.
Monro of Langholm, L.
Murton of Lindisfarne, L.
Newby, L.
Noakes, B.
Northbrook, L.
Northesk, E.
O'Cathain, B.
Onslow, E.
Palmer, L.
Park of Monmouth, B.
Pearson of Rannoch, L.
Phillips of Sudbury, L.
Plumb, L.
Rawlings, B.
Razzall, L.
Rees, L.
Roper, L.
Rotherwick, L.
Russell, E.
St. John of Bletso, L.
Saltoun of Abernethy, Ly.
Scott of Needham Market, B.
Seccombe, B. [Teller]
Selkirk of Douglas, L.
Selsdon, L.
Sharp of Guildford, B.
Sharples, B.
Shutt of Greetland, L.
Skelmersdale, L.
Smith of Clifton, L.
Stern, B.
Stewartby, L.
Stoddart of Swindon, L.
Thomas of Gresford, L.
Tordoff, L.
Tugendhat, L.
Waddington, L.
Wade of Chorlton, L.
Wallace of Saltaire, L.
Walmsley, B.
Williams of Crosby, B.

NOT-CONTENTS

Acton, L.
Alli, L.
Amos, B. (Lord President)
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bach, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Bhatia, L.
Blackstone, B.
Borrie, L.
Bragg, L.
Brennan, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Campbell-Savours, L.
Carter, L.
Chandos, V.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Crawley, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Desai, L.
Dixon, L.
Donoughue, L.
Dormand of Easington, L.
Eatwell, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. (Lord Chancellor)
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Gavron, L.
Gibson of Market Rasen, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grocott, L. [Teller]
Haskel, L.
Haskins, L.
Hayman, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howarth of Breckland, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Islwyn, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jones, L.
Jordan, L.
King of West Bromwich, L.
Kirkhill, L.
Layard, L.
Lea of Crondall, L.
Lipsey, L.
Lockwood, B.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Mallalieu, B.
Masham of Ilton, B.
Mason of Barnsley, L.
Massey of Darwen, B.
Mitchell, L.
Morgan, L.
Morris of Aberavon, L.
Patel of Blackburn, L.
Plant of Highfield, L.
Puttnam, L.
Radice, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rendell of Babergh, B.
Richard, L.
Rooker, L.
Sawyer, L.
Scotland of Asthal, B.
Sheldon, L.
Simon, V.
Thornton, B.
Tomlinson, L.
Turnberg, L.
Turner of Camden, B.
Warner, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Whitaker, B.
Whitty, L.
Wilkins, B.
Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

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