Clause 7 - Functions of overview and scrutiny committees
Health and Social Care Bill
12:30 pm

Photo of Mr Desmond Swayne

Mr Desmond Swayne (New Forest West, Conservative)

I beg to move amendment No. 245, in page 6, leave out lines 14 to 18 and insert

`any county, county borough, district or London Borough Council having responsibility for social services within its area'.

Photo of Mr John Maxton

Mr John Maxton (Glasgow Cathcart, Labour)

With this it will be convenient to take amendment No. 226, in clause 7, page 6, line 18, at end insert—

`(e) any district council.'.

Photo of Mr Desmond Swayne

Mr Desmond Swayne (New Forest West, Conservative)

After that passionate debate on the principles underpinning the clauses that we shall discuss for the rest of the day, I feel that it is down to me to lower the temperature of the Committee, and to bring us back to our ``meat and two veg'' agenda of detailed scrutiny of clauses and amendments. Notwithstanding the modest arrangements that we might make at lunch, and perhaps at 7 pm, the clock beckons us until 10 pm. I am sure that my hon. Friends would want us to give detailed and thorough, if not exhaustive, scrutiny to the amendments, so that those who have gone to Fulham today to learn of the rest of the Government's health agenda will wish that they had remained to share our scrutiny this afternoon.

Amendment No. 245 would make the principle of clause 7 clear. The practical consequence of the clause is that

``any county council, . . . any county borough council''

``the council of any district comprised in an area for which there is no county council''

will have oversight and scrutiny functions. The principle underlying that is that the local authorities detailed in the Bill are those that currently have responsibility for providing social services. However, we think that it is better to put into the Bill the principle rather than the practical consequence. Reform of local government may change the arrangements, so it is better to state the underlying principle that caused the Government to choose those structures to have responsibility for oversight.

We know that the function will not necessarily be easy to perform. It is somewhat analogous to the suggestions that have been made over recent years with respect to fluoride, whereby the Government has suggested that local authorities might consult their electorates and, as a consequence, bring about greater use of fluoride in the water. The problem is, of course, that local authority boundaries are not coterminous with water authority boundaries, so there is an immediate problem of how that exercise in seeking electoral consent will give practical effect to the policy.

There is a somewhat similar problem here, in that health authority boundaries, PCTs and trusts are not coterminous with the local authority scrutiny that will be provided. That problem is significant. I draw attention to the paper that the Government have provided within the last few days, entitled ``Patient Representation in the New NHS. Part One: A new voice for patients''. On page 6, the Government acknowledge:

``In many places, scrutiny committees from more than one authority will need to work together to ensure an efficient scrutiny process. Subject to Parliament, regulations will be made setting out how OSCs can pool or share powers or cooperate together to do this.''

I look forward to hearing the Minister spell out precisely how he envisages that that will take place.

``They will also set out how district councils may participate.''

That will be a very interesting discussion, to which we look forward, because I am sure that all members of the Committee will have received the correspondence from Epping Forest district council. It is obviously enthusiastic about taking up its responsibilities with regard to scrutiny—responsibilities that it believes that the Bill, as currently structured, denies it.

The council makes an interesting point. It says in its letter:

``It is not reasonable or realistic to expect the County Council to carry out a thorough scrutiny process when some 26 plus health service organisations are involved. This includes 2 Health Authorities, 16 Primary Care Groups/Trusts and at least 8 acute or specialist provider Trusts and ignores totally those Health Trusts which provide cross border services to a large part of our population.''

The council is speaking there of its own particular circumstances in Epping Forest, but I doubt very much that other district councils find themselves in a wholly different position.

I look forward with interest to the case that the Liberal Democrats will make for their amendment because, although I have some sympathy with it, I have reservations about expecting district councils to discharge the functions—[Interruption.]—The hon. Member for Sutton and Cheam murmurs from a sedentary position but, from my experience of my own district council, I wonder whether it is equipped to carry out that function. It is already struggling, given the resources that it has, to discharge its existing duties. How much additional resource will it be provided with if it is to discharge new oversight and scrutiny functions?

I would not go so far as to say that we are in danger of a surfeit of scrutiny, but there is a possibility that, by fragmenting the arrangements that were previously undertaken by community health councils and expecting the oversight to be taken up by any number of local authorities at different levels, we are creating the danger of fragmentation and we may weaken the authority with which local authorities can scrutinise the NHS by expecting scrutiny to occur at many levels.

We expect the Government to justify their stance but we are, by and large, comfortable with the notion of scrutiny at the level at which social services responsibility is exercised. Those councils are already under a statutory obligation to co-operate, under the Health Act 1999. We are confident that that is probably the right level, although we can foresee problems.

Photo of Mr Paul Burstow

Mr Paul Burstow (Sutton and Cheam, Liberal Democrat)

I shall start by trying to square the circle that the hon. Member for New Forest, West has attempted to draw with respect to amendment No. 226. Our aim in tabling the amendment was to add to subsection (2) the category of district councils. The rest of the clause deals with order-making and regulation-making powers that will dictate how each tier of government is to discharge its function. To enable the Minister to keep his promise to set out the way in which district councils may participate, it seemed sensible to us that the Bill should provide for them to participate in the first place. The Minister could then, in regulations, specify how they were to do so. In view of that, it might be argued that amendment No. 245 is more prescriptive and inflexible. Simply making the necessary addition to the list of bodies that can be involved in the scrutiny process allows for greater flexibility.

I pray in aid the parliamentary briefing from the Democratic Health Network, which has drawn attention to the fact that district councils have an important contribution to make. They have a role in environmental health and they have housing responsibility, not just as strategic planners but often as providers. Those issues are part of a health improvement agenda and a health inequalities reduction agenda. It is slightly puzzling—perhaps the Minister will provide clarification on this—that the remit of the oversight and scrutiny committees seems to be focused very much on the provision of services by trusts, whereas it might also have included the wider questions of health inequalities and health improvement. Will it be possible for those matters to be dealt with in the regulations?

We consider that there is a case for participation by districts in what is proposed. Perhaps it would be better for them to be organised jointly with their county authorities, but on some occasions specific reconfiguration issues might have more of an impact on one local authority and population than any other, so that locally based scrutiny of the proposals by the district council in question would be by far the most appropriate exercise of the powers under the clause.

12:45 pm
Photo of Mr John Denham

Mr John Denham (Minister of State, Department of Health; Southampton, Itchen, Labour)

If I have been listening properly, there is broad agreement about what the proper outcome should be. We shall touch on similar issues when we debate clause 9 and related amendments. The Government's view is that the lead responsibility for the scrutiny process should lie with social services authorities, which is the intention underlying the Conservative amendment. However, we recognise that there is a case for involving district councils in the process.

New clause 9 will enable us to make regulations for the joint working between social services authorities that will sometimes be necessary. That might be relevant, for instance, in my neck of the woods, where Southampton is the social services authority for my constituency, and Hampshire covers the constituency of the hon. Member for New Forest, West. The provision would also cover the involvement of district councils. There will obviously be situations involving primary care trusts, reconfigurations and things of that sort, where a district council input to the scrutiny process would be essential. There is no need for amendment No. 245. The existing wording of the Bill reflects a common intention.

Amendment No. 226 puts district councils on the same basis as social services authorities. That is not our intention, and new clause 9, when we come to it, will, I hope, be seen to deal adequately with the point made by the hon. Member for Sutton and Cheam.

Photo of Mr Paul Burstow

Mr Paul Burstow (Sutton and Cheam, Liberal Democrat)

We deliberately put the amendment that we tabled in that part of the Bill, because the clause is about regulations. I interpret the clause to mean that the way in which scrutiny will be performed can vary. Will the Minister tell us in what way the clause precludes differential treatment between different tiers of local government?

Photo of Mr John Denham

Mr John Denham (Minister of State, Department of Health; Southampton, Itchen, Labour)

I believe that new clause 9 deals with the matter more adequately. My understanding is that accepting such an amendment to subsection (2) might imply an equivalence of approach. I hope that new clause 9 will deal with the question.

Photo of Mr Desmond Swayne

Mr Desmond Swayne (New Forest West, Conservative)

I accept entirely the hon. Gentleman's point that the practical effect of our amendment is to achieve precisely what the clause, as currently drafted, achieves. However, I do not understand why he has chosen to achieve that by specifying the types of council rather than what it is about those types of council that makes it appropriate for them to undertake the scrutiny. There is an agenda for reform in local government, and there is a regional government agenda. The types of council that the Government have specified might not always discharge the responsibilities that they currently do.

Photo of Mr John Denham

Mr John Denham (Minister of State, Department of Health; Southampton, Itchen, Labour)

The answer is perfectly reasonable. We chose the best default option for inclusion in the Bill. Choosing to specify the type of authority as opposed to specifying authorities in terms of social services provision avoids any other selection of authorities that would have overlaps and duplications. Should responsibility for social services be transferred elsewhere—we have no intention of doing so—we will at least be left with a pattern of scrutiny that covers the country uniformly. If we had specified social services provision as a criterion, consequential changes would have been needed. We are getting into a hypothetical area of law-making. The effect of the measure is to provide a uniform pattern of scrutiny, and new clause 9 will allow district councils to be included in that pattern where appropriate.

Photo of Dr Doug Naysmith

Dr Doug Naysmith (Bristol North West, Labour/Co-operative)

This is a minor point, which is not really related to the amendment. We are talking about social services provision as being the determining factor in deciding the direction of the Bill. I should like to place on the record, and I am sure that the Minister will agree with me, that district councils, through their environmental health function, have an important part to play in public health. I would not like to think that the direction of the Bill was being determined by questions of social services provision.

Photo of Mr John Denham

Mr John Denham (Minister of State, Department of Health; Southampton, Itchen, Labour)

My hon. Friend is right, and that is why the amendments and new clause 9, which we shall consider later, are important. We must not exclude district councils from the process altogether. However, a decision must be taken about where the lead responsibility should lie, and that is the judgment that we have made.

Photo of Mr Desmond Swayne

Mr Desmond Swayne (New Forest West, Conservative)

The Minister has adequately explained the matter, and said what I would have said in my intervention. In consequence, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Mr Desmond Swayne

Mr Desmond Swayne (New Forest West, Conservative)

I beg to move amendment No. 242, in page 6, line 19, leave out `Regulations may' and insert—

`The Secretary of State shall, within 60 days of this section coming into effect'.

Photo of Mr John Maxton

Mr John Maxton (Glasgow Cathcart, Labour)

With this, it will be convenient to take the following amendments: No. 74, in page 6, line 19, leave out `may' and insert `shall'.

No. 26, in page 7, line 3, at end add—

`(7) Before making any regulations under subsection (3) above, the Secretary of State shall consult such bodies as represent the interests of those likely to be affected by the regulations.'.

Photo of Mr Desmond Swayne

Mr Desmond Swayne (New Forest West, Conservative)

Given the hour, I am sure that the amendments will not detain us for too long. One thing has become abundantly clear from our debates this morning: there is a huge amount of uncertainty as to what, precisely, the arrangements are, and how they will work and interact. The amendments are concerned with what, precisely, is under scrutiny, what will be the subject of the reports of the scrutiny committee, what the NHS must consult the committees about, what information the NHS must or must not provide to them, and who has to appear before them. The regulations must, not ``may'', tell us all that.

There is already sufficient uncertainty. If the regulations will not give us that information, what use will they be? We crave certainty as to precisely what the regulations will spell out.

Photo of Mr Paul Burstow

Mr Paul Burstow (Sutton and Cheam, Liberal Democrat)

The amendment does nothing of what the hon. Gentleman mentioned, but limits the time in which the regulations can be published. The points that the hon. Gentleman talked about are tackled by amendments Nos. 74 and 26, which were tabled by my hon. Friend the Member for Isle of Wight and me.

I understand the concerns of the hon. Member for New Forest, West. We tabled the amendments for the same reason. We believe that the Secretary of State should have to take action, and that he should have to consult. Much of the Bill is being portrayed as having a spirit in which consultation is important, and a provision such as that in amendment No. 44 would enable the Government to give further assurances to those interested in the subject that, in relation to clause 7(3), they will meet the interests of patients and other groups.

Photo of Mr Desmond Swayne

Mr Desmond Swayne (New Forest West, Conservative)

I do not want to get into a private row with the hon. Member for Sutton and Cheam, but I am sure that he will acknowledge that the effect of publishing regulations within 60 days will achieve the certainty for which we have asked. I accept that his amendments would achieve the same effect.

Photo of Mr Paul Burstow

Mr Paul Burstow (Sutton and Cheam, Liberal Democrat)

We have common cause in wanting certainty, if in nothing else. I hope that the Minister will respond positively to the proposal that there should be consultation ahead of the publication of the regulations.

Photo of Mr John Denham

Mr John Denham (Minister of State, Department of Health; Southampton, Itchen, Labour)

I may be wrong, but I shall assume that the amendments are probing amendments, designed to elicit assurances that there will be regulations and consultation on them with parties such as the Local Government Association and the NHS Confederation. Regulations will need to be in place before the overview and scrutiny committees can assume their functions. The regulations will be subject to scrutiny through the negative resolution procedure.

The process will be important. The scope of the powers of the scrutiny committee to consider, for example, major hospital reconfigurations, major service changes and so on will be set out in the regulations. Members of the Committee will be aware that some of the rights that CHCs enjoy derive not from primary legislation or regulation, but from a combination of guidance and judicial precedent. When moving to the new system, we clearly need to outline the appropriate powers for the scrutiny committee, so it will be necessary to raise issues on which we especially want to ensure that the committee plays an effective role.

The hon. Member for Sutton and Cheam mentioned health inequalities. We would want to consult on whether there would be an advantage in specifying the health improvement programme and its implementation as a key area for the scrutiny committee to examine. That is a way in which, through the regulations, it would be possible to institutionalise a focus for some of the issues with which he is concerned.

The matter is not for today. Regulations will be made, and we will consult.

Photo of Mr Paul Burstow

Mr Paul Burstow (Sutton and Cheam, Liberal Democrat)

Will the Minister tell us whether the current Association of Community Health Councils for England and Wales will still exist when the regulations are published? We must be able to check that the precedents set through the courts are firmly established and bedded down in the new regulations.

Photo of Mr John Denham

Mr John Denham (Minister of State, Department of Health; Southampton, Itchen, Labour)

In view of my earlier assurances about the need for a proper transition from the existing system to the new system, that is likely.

Photo of Mr Desmond Swayne

Mr Desmond Swayne (New Forest West, Conservative)

I thank the Minister for his response. We believe that the publication of the regulations is urgently required, because the process of deciding how the arrangements will work is already under way. The Minister will be aware that the discussion between the Local Government Association and the NHS Confederation was about precisely how the arrangement worked, and several questions were raised that need certainty. However, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

It being One o'clock, THE CHAIRMAN adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Four o'clock.