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Earl Howe: I am grateful to the Minister for that response and I accept that it would not be appropriate to place on the face of the Bill a mention of bodies that do not yet exist. He will understand that this was intended as a probing amendment really to tease out who will take the lead on children's issues. If it is to be CSCI, there is still a question to be raised about whether the edges are in any sense blurred and whether that body will be able to gain access to all the types of premises that it will need to investigate for the purposes of its work in this area.

As regards Ofsted, if it is expected that CHAI should work in close co-operation with it, I am a little surprised that that is not set out on the face of the Bill. Where such co-operation is required, it is important that both sides contribute to the same degree and in the same measure to the work in hand. I should have thought that duties set out on the face of the Bill would not be out of place here. Nevertheless, if it is the considered view of the Government that that is not required, then I bow to their judgment.

Again, I am grateful to the Minister for his explanation. I shall take the issue away and give it further thought. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 66 agreed to.

Clause 67 [Power to require explanation]:

Lord Warner moved Amendment No. 324A:

The noble Lord said: The government amendments are technical in nature and were suggested by parliamentary counsel.

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As I said to earlier, similar, amendments, Amendments Nos. 335A and 361A, under Clauses 67, 73, 89 and 99 regulations may provide for CHAI, the Welsh Assembly or CSCI as appropriate to require prescribed persons to provide an explanation of any documents or information the inspectorates obtain in exercising their relevant powers, or of any matters which are the subject of the exercise of any functions of the inspectorates.

The Bill currently provides that those regulations may require explanations to be provided at times and places set out in the regulations. This is to ensure that it will be possible to require explanations to be provided in person, as opposed to in writing, which we consider will sometimes be appropriate, particularly where the inspectorates come across conflicting data in the course of exercising their functions. These amendments clarify matters in this regard. I beg to move.

Earl Howe: I shall speak briefly to my Amendments Nos. 325 and 359, which are grouped with the government amendments.

Can the Minister expand in a little more detail on the full intent and purport of the clause? Clause 67 creates a criminal offence if a prescribed person fails to provide a explanation to CHAI of any documents or other matters referred to in subsection (1) in circumstances as yet undefined. The Minister, however, outlined one set of circumstances, which I found helpful.

We gather that regulations will be laid in due course which will set out the full extent of the power and what exactly is involved. If the Minister can give an inkling of what we can expect to see in the regulations and what kinds of circumstances these provisions are meant to cover, I am sure the Committee will find it helpful. I have also tabled an equivalent amendment to Clause 89, which relates to Wales.

I suggest, I hope not unreasonably, that because we are being presented with not only an empty box but also a new criminal offence applicable to it, the regulations to be laid should be subject to the affirmative resolution procedure to enable them to be guaranteed debating time in both Houses.

Lord Warner: I shall not go over the arguments again of why we think the regulations are suitable for the negative rather than affirmative resolution procedure. They were set out at an earlier stage of our discussion in relation to regulations of this kind.

We are moving the government amendments because there are circumstances under which CHAI, the Assembly or CSCI may require prescribed persons to provide an explanation of any documents or information the inspectorates obtain in exercising their powers. We are trying to ensure that these explanations may be provided not only in writing but in person. We will of course set out in more detail in the regulations those arrangements, but essentially this is about explanations being dealt with in writing or by a personal appearance.

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That is the purport of what will be covered in the regulations. I am not sure that I can go much further in trying to clarify what will be in the detailed regulations.

Earl Howe: The noble Lord has shed some light on the clause and I thank him for that. We look forward to seeing the regulations when they are published. No doubt these matters will by then have been thought through in even greater detail.

On Question, amendment agreed to.

[Amendment No. 325 not moved.]

Clause 67, as amended, agreed to.

Clause 68 [Reviews and investigations relating to Wales]:

[Amendments Nos. 326 to 331 not moved.]

Clause 68 agreed to.

Clause 69 [Reporting to Secretary of State and regulator]:

Baroness Noakes moved Amendment No. 332:

    Page 27, line 37, leave out "Secretary of State" and insert "CHAI"

The noble Baroness said: In moving Amendment No. 332, I shall also speak to Amendment No. 333.

Amendment No. 332 amends Clause 69(1), which requires the Assembly to report to the Secretary of State if it believes there are significant failings in an English NHS body. I have argued earlier in our proceedings that it is not sensible or desirable for the Assembly to concern itself with English bodies, but, if it is to do so, we believe that its reports should go to CHAI. The issue of significant failings is unlikely to be related only to the provision of care to Welsh patients. It should be left to CHAI to deliver to the Secretary of State a coherent picture, based on the Welsh perspective and CHAI's own findings.

It is possible that significant failings in an English hospital seen through the Cardiff end of the telescope are not nearly so important when contextualised for the whole of the hospital's activity. I am not suggesting that CHAI should ignore what the Assembly thinks, but the Secretary of State should receive advice on a consistent basis from the body which he has set up for that purpose.

Amendment No. 333 makes a similar provision in relation to foundation trusts. Clause 69(3) has the Assembly reporting to the regulator directly. Our amendment would have the Assembly reporting to CHAI, which can then report to the regulator under Clause 52 if, in the round, such a report is considered by CHAI to be desirable. I beg to move.

Baroness Andrews: I shall take my cue from the noble Baroness—I shall not have another debate on devolution and will keep my remarks brief.

We believe that the amendments are not necessary. To state the obvious, the Secretary of State is responsible for the overall provision of healthcare in England, while the Assembly, under Clause 68, is given the function of conducting the reviews of and

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investigations into the provision of healthcare by and for Welsh NHS bodies. As we debated last week, the new independent health inspectorate for Wales is being established to conduct reviews in the same way as CHAI does in England. Our argument is that if the Assembly identifies significant failings, it should report them to the Secretary of State or the regulator, in the case of foundation trusts. These are the people who can make things happen and make changes.

I agree with the noble Baroness that in pursuit of its responsibilities, the health inspectorate might indeed come across failings. It may find those failings in relation to Welsh patients in English hospitals. Let us assume, for example, that CHAI did not inspect a hospital recently or that it never inspected it. If HIW, as part of its programme, makes a decision to inspect that hospital, discussing its programme with CHAI, given its duty of co-operation, any difficulties it comes across will be germane not simply to Welsh patients but will have an impact on English patients as well. Therefore, we believe that this is an opportunity for something to be anticipated. It would be for the Secretary of State to determine what action should be taken to address those failings in accordance with the powers conferred on him by the National Health Service Act 1977, and likewise for the regulator, in relation to his powers under Clause 23.

I emphasise that Clause 141 provides for co-operation where it seems appropriate for the effective discharge of functions. In this context, the provision also extends towards the provision of information, including information on failings relating to English NHS trusts. Clause 126 also provides for CHAI to make and publish an annual report on both English and Welsh NHS bodies. In exercising that function, CHAI will need to have copies of all reports in relation to the functions undertaken by the Assembly, which may include information on failings relating to English NHS trusts.

I hope the noble Baroness will agree that these are reasonable arguments and withdraw her amendment.

Baroness Noakes: I thank the noble Baroness for her reply, but it has really rather strengthened my resolve on the issue. She said that CHAI would need to report both to the Secretary of State and to the Assembly on health matters. It can report to the Assembly on Welsh matters only if it has information about Welsh matters—but here we have a deliberate information flow that bypasses CHAI and goes somewhere else. There is a real asymmetry here.

We do not believe that the Welsh Assembly should have any role with regard to English hospitals—only CHAI should have a role. If the Assembly is going to do it, however, its findings will need to be filtered through CHAI, otherwise there will be an asymmetry.

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