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Baroness Noakes: My Lords, the Minister has already referred to Amendments Nos. 306, 307 and 345 in the group, which are in my name and that of my noble friend Lord Howe. Those amendments have been comprehensively upstaged by the Minister's own. He said in Committee that he would look again at the matter, and we regard the outcome as perfectly satisfactory.

On Question, amendment agreed to.

Clause 50 [Reviews: England and Wales]:

[Amendment No. 300 not moved.]

Lord Warner moved Amendment No. 301:



"( ) The Secretary of State may, after consulting the CHAI, by regulations make provision as to the procedure to be followed in respect of the making of representations to the CHAI before the publication of a report under this section."

On Question, amendment agreed to.

Clause 51 [Reviews and investigations: England]:

Earl Howe moved Amendment No. 302:


    Page 19, line 10, leave out subsection (4).

The noble Earl said: My Lords, in moving the amendment I am returning to an issue that we debated in Committee, which is the power granted to the Secretary of State in Clause 51(4) to require CHAI to conduct reviews or investigations.

The Minister sought to reassure us that such a power was right and proper. The Secretary of State is accountable to Parliament, and he should therefore have the ability to instruct CHAI to investigate issues that are in the public interest. Although that proposition sounds reasonable, I actually think that it is questionable. If we believe that as a general rule CHAI should be free to set its own work programme within the resources allocated to it, and to set its own priorities, it is doubtful, at least to me, whether the Secretary of State should have an automatic right to override those priorities.

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The Minister said that the power set out in the provisions did not impinge on CHAI's independence, because it would be used only sparingly. I would feel happier about that reassurance if there were something in the clause to qualify the circumstances in which the power could be used, but there is nothing—it is open-ended. In theory, the Secretary of State could direct CHAI's entire work programme. That may not be the Government's wish or intention, but a future government could approach the matter differently.

There is also a risk that CHAI may be unnecessarily side-tracked by having to fulfil instructions from the Secretary of State in situations that are highly politically charged. There might be, for example, a story splashed all over the press of a hospital chapel being used as a temporary mortuary, as indeed happened some time ago. There was a huge fuss about that story, and immense outrage expressed in all the tabloid newspapers. Actually, although the situation at the hospital was highly regrettable, it hardly fell into the category of a major health concern. Yet one could easily imagine a Minister in such circumstances feeling browbeaten and deciding that he needed to "do something". If the provisions applied, the result might well be an instruction to CHAI to drop everything that it was doing and investigate what, in CHAI's own eyes, it did not regard as a pressing matter.

That is one sort of danger but, looking at the picture more broadly, I do not see why the Secretary of State needs a power to instruct CHAI in that way. If something important needs investigation and CHAI is unaware of it, it is always open to the Secretary of State to bring the matter to CHAI's notice. If the situation really is an emergency, one cannot envisage CHAI wanting to delay looking at it. There may be other issues arising at that moment which CHAI considers to be even more pressing. Why should it have to submit to the overriding request of the Secretary of State? The case has simply not been made.

The Minister will therefore see that several strands of thought run through the amendment. I am not saying that CHAI should have extra independence just for the sake of it. I hope that the Minister will respond constructively. I beg to move.

Lord Warner: My Lords, as the noble Earl said, the amendment would remove the Secretary of State's specific power to require CHAI to undertake reviews and investigations in certain circumstances. It is important that the Secretary of State, who remains accountable to Parliament for the provision of healthcare, has the ability to be able to require CHAI to undertake a review or investigation where there is a crisis of confidence in public services. That power does not apply to cases that may pop into the headlines, such as a chapel being used as a mortuary. However, it could be applicable to a specific NHS body, such as Bristol Royal Infirmary or Alder Hay, where a specific type of service or problem area such as retention of organs needs to be investigated. Such matters are of

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great public concern and the ramifications for the NHS go wider than the specific place to which they relate.

In those circumstances—nine times out of 10 and 99 times out of 100—we would expect CHAI, which would want to identify and actively respond to such concerns, to fit that into its programmes. However, circumstances could arise where the Government have to intervene and reshape slightly the priorities of CHAI where there was a crisis of confidence of the kind that I have mentioned and it is important that the Minister has that reserve power. I hope that my answer clarifies matters for the noble Earl. The Government certainly have no intention to interfere with the work of CHAI every day. As I pointed out earlier, the number of staff who will be around in the Department of Health to interfere in anybody's workload will be substantially reduced in the review that we are carrying out.

Earl Howe: My Lords, I would feel happier if the wording were less open-ended than it is. The wording is not qualified in any way. I was of course glad to hear the Minister say that if there were a crisis of confidence of some kind, such as Alder Hay, CHAI would normally set about the task of looking into those matters of its own accord. I still question whether the Secretary of State needs a power to instruct CHAI, but I shall not press the matter further. I hope and believe that the clause will be read in conjunction with the Minister's helpful remarks. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Warner moved Amendment No. 303:


    Page 19, line 25, at end insert—


"( ) The Secretary of State may, after consulting the CHAI, by regulations make provision as to the procedure to be followed in respect of the making of representations to the CHAI before the publication of a report under this section."

On Question, amendment agreed to.

[Amendments Nos. 304 to 306 not moved.]

Clause 52 [Failings]:

[Amendment No. 307 not moved.]

Lord Warner moved Amendment No. 308


    Page 20, line 38, at end insert—


"( ) The Secretary of State may, after consulting the CHAI, by regulations make provision as to the procedure to be followed in respect of the making of representations to the CHAI before the publication of a report under this section."

On Question, amendment agreed to.

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

[Amendment No. 309 not moved.]

7.15 p.m.

Clause 54 [Functions relating to regulator]:

Earl Howe moved Amendment No. 310:


    Page 21, line 14, leave out "is to keep the regulator" and insert "and the regulator are to keep each other"

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The noble Earl said: My Lords, I beg to move Amendment No. 310, but merely as a means of expressing my appreciation to the Minister for tabling superior amendments which satisfy the point that I made in Committee by way of the amendment. I beg to move.

The Deputy Speaker (Baroness Fookes): My Lords, if Amendment No. 310 is agreed to, Amendment No. 311 could not be called by reason of pre-emption.

Lord Warner: My Lords, I have nothing more to say on the amendment.

Earl Howe: My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 311 not moved.]

Lord Warner moved Amendment No. 312:


    Leave out Clause 54.

The noble Lord said: My Lords, I beg to move Amendment No. 312.

Lord Skelmersdale: My Lords, we cannot allow the Minister to get away with the amendment. Amendments Nos. 312, 318 and 376 are grouped with Amendment No. 310. The noble Lord said that he wished to speak to the government amendment separately from the one that was tabled by my noble friend, and I suggest that he might like to do so.

Lord Warner: My Lords, I am always happy to satisfy the thirst for knowledge in your Lordships' House, but I thought that noble Lords would want to move along towards the dinner hour a little more briskly. Amendments Nos. 312. 318 and 376 were tabled in response to concerns raised in Committee, as the noble Earl has acknowledged.

Your Lordships sought to ensure that CHAI and the independent regulator of NHS foundation trusts should keep each other informed. The amendment would have placed an undue burden on the bodies. It is unlikely that the independent regulator will be regularly in receipt of information about the quality of healthcare provided by and for individual NHS foundation trusts, as it will not inspect the healthcare provided. That remains the role of CHAI.

We understand that the independent regulator may occasionally receive information that impacts on the provision of healthcare by NHS foundation trusts and that it is appropriate that that information is shared with CHAI. Therefore, subsection (2)(b) of Amendment No. 318 clarifies that such information should be shared.

It remains our expectation that CHAI will be regularly in receipt of relevant information concerning the provision of healthcare. CHAI remains under a duty under subsection (2)(a) to keep the independent regulator informed. That will support the regulator in

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carrying out its duties of granting authorisations to foundation trusts and keeping such authorisations under review.

Subsection (1) of the amendment would ensure that CHAI and the independent regulator must "co-operate with each other" in carrying out their functions. Subsections (1) and (2) would ensure that the provisions in Clause 54 are carried forward. Amendment No. 312 deletes Clause 54 as that clause is replaced by Amendment No. 318.

Amendment No. 376. would delete Clause 121(2), which allows CHAI to provide assistance to the regulator. The duty to co-operate has subsumed the duty in that clause. I beg to move.

On Question, amendment agreed to.

Clause 56 [Co-ordination of reviews]:


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