Schedule 1
Health and Social Care Bill
2:00 pm

The Care Quality Commission

Photo of Stephen O'Brien

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

I beg to move amendment No. 158, in schedule 1, page 107, leave out lines 22 to 24 and insert—

‘3 (1) The Secretary of State shall appoint not fewer than 5 or more than 9 individuals as members of the Commission (to be known as Care Commissioners).

(1A) In appointing Care Commissioners the Secretary of State shall appoint an individual only if the Secretary of State thinks that the individual—

(a) has experience or knowledge relating to matters in respect of which the Commission has functions, or

(b) has experience or knowledge relating to matters in respect of human rights, or

(c) has experience or knowledge as a user of services relating to matters in respect of which the Commission has functions, or

(d) has experience or knowledge as a carer of a user or users of services relating to matters in respect of which the Commission has functions, or

(e) is suitable for appointment for some other reason.

(1B) In appointing Care Commissioners the Secretary of State shall have regard to the desirability of—

(a) the Commission having collective experience and knowledge relating to all of the Commission’s functions, and

(b) the Commission acting as a collective, unified body.

(1C) The Secretary of State shall appoint a Chair of the Commission.

(1D) Before appointing any person to the position of Chair the Secretary of State shall first seek the approval of the Health Committee of the House of Commons.’.

Photo of Jimmy Hood

Jimmy Hood (Lanark and Hamilton East, Labour)

With this it will be convenient to discuss the following amendments: No. 159, in schedule 1, page 108, line 27, at end insert

‘and who shall act as the head of paid service.

(1A) The Commission must appoint a director of adult social care, who is be an employee of the Commission.

(1B) The Commission must appoint a director of health care, who is to be an employee of the Commission.

(1C) The Commission must appoint a director of mental health, who is to be an employee of the Commission.’.

No. 160, in schedule 1, page 109, line 2, at end insert—

‘(3A) The Commission shall appoint—

(a) an adult social care committee,

(b) a healthcare committee,

(c) a mental health committee,

(d) a human rights committee.

(3B) The advisory committee and any committee or subcommittee appointed under subparagraph (3A) may consist of or include persons who are not members of the Commission.

(3C) The chair of each committee established in accordance with subparagraph (3B) must be members of the Commission.

(3D) The other members of each committee so established may include persons who are not members of the Commission.’.

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Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

I wish to introduce the amendments to try to identify, in the context of the greater specificity contained in schedule 1, whether the new commission is institutionally obliged by its structure to pay attention to all areas of its activity, including social care.

The precedents upon which I have sought to draw are from the Equality Act 2006, something on which many hon. Members have gained expertise and experience as it was so recent. That insists upon a similar structure for the Equality and Human Rights Commission. In her oral evidence, Dame Denise Platt noted that:

“it may be necessary to have some specific structural safeguards to ensure that the social care aspects of our commission’s work are not overlooked.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 7.]

Amendment No. 158 provides for a separate commission to which putative business directors of the CQC would report: that is, a management board and a reference board. That is similar to the current set-up of the Commission for Social Care Inspection. It would provide for an added tier of independence between the day-to-day running of the commission and the oversight of that operation. There is an obvious conflict of interest if the board is responsible both for overseeing good regulation of services and the use of resources in interaction with the political and indeed media spheres in what are often extremely fraught areas. It may be important to have a small number of commissioners to ensure a collective and cohesive commission acting as one.

That would also facilitate the point about intelligent regulation that Dame Denise Platt made at the oral evidence session. In response to one of my questions about the vital information base and the equivalence to the old community health councils’ bed watch, she said:

“One of the things that an intelligent commission and regulator does is make the unusual connections between pieces of information that are routinely collected and published. They can cross-fertilise them and ask the next question.”——[Official Report, Health and Social Care Public Bill Committee,8 January 2008; c. 21.]

I do not think any of us should underestimate the massive value of that. The Mental Health Act Commission, during the oral evidence sessions, made clear the need for

“adequate organisational and personal accountability at board level for the monitoring of and reporting on the needs and rights of detained patients.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 9.]

The amendment would put in the Bill the requirement for appointments to that board to be properly qualified. The legislation as it stands leaves to regulations any conditions to be fulfilled for appointments. Not only should that be in the Bill from the point of view of parliamentary scrutiny, but the qualifications for the board should, at the very least, be established by Parliament, rather than by Ministers if the CQC is to have the genuine independence which is claimed for it and which the Minister asserts. A third of the clauses in the Bill are dependent, of course, on secondary legislation—a point that was emphasised in the point of order at the outset of this afternoon’s proceedings.

The amendment further introduces a vetting procedure through the House of Commons Select Committee. That is a procedure suggested under the governance of Britain Green Paper, which proposed that certain senior public appointments should have parliamentary Select Committee scrutiny. Given that the new commission will be responsible for assessing and inspecting the safety and quality of services that together account for some 30 per cent., around £105 billion, of discretionary public expenditure in 2007-08—there is also significant private expenditure on adult social care and health care—it could be argued that that process would seem highly applicable.

Amendment No. 159 establishes that the commission must appoint directors for adult social care, health care and mental health. Lord Kamlesh Patel, in response to a question from my hon. Friend the Member for Tiverton and Honiton about whether his commission envisaged a separate team of people dealing with Mental Health Act issues, said:

“We would probably want to see a separate team that influences the rest of the organisation...what you do not want is a silo approach.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 21.]

I think all of us who have worked in and been responsible for large organisations—I can certainly put my hand up to that—know that there is a massive drag on organisations and a motivational negative effect if they work in silos, rather than have open cross-fertilisation, so that expertise runs freely across and information, above all else, is seen to be an opportunity and not a power for individuals.

On amendment No. 159, there is a question as to whether the director of mental health would oversee only the responsibilities formerly taken by the MHAC, or whether he or she would oversee the regulation of mental health provision. I hope that the Minister may be able to help on that point.

On Second Reading, the Secretary of State said:

“Social care must have parity in the new commission. That must be reflected on the board of the new commission and in everything that the commission does. I am pleased that she has given me the opportunity to reassert that that is the case, and that it needs to be the case. That point will be emphasised throughout the passage of the Bill.”—[Official Report, 26 November 2007; Vol. 468, c. 37.]

Notwithstanding the fact that I have been supportive by withdrawing the previous amendment, I hope that the Minister will regard the proposal as an absolutely wonderful opportunity to give effect to the express words of his Secretary of State.

Amendment No. 160 would provide for committees to be established that cover adult social care, health care, mental health and human rights. They would consist of a mix of members of the commission proposed under amendment No. 158, employees of the paid service and, if necessary, individuals who are external to the CQC. The committees would both support and interrogate the work of the different areas of the commission and go some way to calling it to account in addressing each area of its responsibility.

I now wish to touch on the Joint Committee on Human Rights and a matter that has been of some concern to other hon. Members. Much has been made of the broad issue of a human rights focus for the commission. In its submission, the CSCI says that it

“believes, in line with general Government policy, that the new regulator should take a strong rights based approach towards the people who use social care and health services...and their carers”,

and that it has a desire for that to be reflected properly in legislation.

In its recent report “The Human Rights of Older People in Healthcare”, the Human Rights Committee recommended

“that the forthcoming merged inspectorate for health, social care and mental health adopts a human rights framework with the intention that the framework informs all of the inspectorate’s work and so makes it more effective in fulfilling its statutory duties.”

It noted that

“many witnesses, including the inspectorates, providers and organisations supporting older people, expressed concern about continuing poor treatment of older people in healthcare”.

It charted the failings under articles 2, 3 and 8 of the European charter of human rights on malnutrition and dehydration; inadequate assessment of a person’s needs; abuse and rough treatment; neglect; carelessness, poor hygiene and bullying, and patronising and infantilising attitudes towards older people. Article 8 covers the lack of privacy in mixed sex wards—another broken commitment by the current Government—and lack of dignity, especially for personal care needs; insufficient attention paid to confidentiality; inappropriate medication and use of physical restraint; too hasty discharge from hospital; fear among older people of making complaints and eviction from care homes. Article 14 makes two further points that concern discriminatory treatment of patients and care home residents on grounds of age, disability and race and communication difficulties, particularly for people with dementia or those who cannot speak English.

Furthermore, the Human Rights Committee, in its report, praised the MHAC’s approach to human rights. In a ringing endorsement, it said that

“in our view, lessons can be learned from the more systematic approach pioneered by the Mental Health Act Commission...We are aware of the recent publication on implementing human rights by the MHAC in partnership with the Department of Health and what was then the Department for Constitutional Affairs. MHAC state their purpose was ‘incorporate a human rights framework fully in the work of the MHAC, so that it becomes a recognised part of regular activity across the organisation’...The MHAC publication contains accessible and practical information on the steps that it took to complete the project and it identifies what people working within the  commission learned from it. We are encouraged by the fact that the MHAC is to be merged with the Healthcare Commission and CSCI and urge that the highest common denominator should prevail.”

In its submission, the Mental Health Act Commission called for

“an overarching principle of equality and human rights, focussing at all times on the civil, legal and human rights of patients”.

The amendment, building on the two with which it is grouped, would make matters clear in the context of human rights. The commission’s figures make it clear that black African and black Caribbean patients are more than three times as likely as the average to be admitted to and detained in hospital. The commission says that the black other group, especially men—largely second and third-generation black British patients—are over 10 times, and as high as 18 times in the 2005 results, more likely than the average to be admitted. It says that there is no epidemiological evidence to suggest that black people are 10 times as likely to have mental illness. MHAC also notes that it has found a surprising and shocking number of very serious breaches of the right to respect for human dignity and privacy, which on occasion may have amounted to serious ill-treatment of women patients.

While on our first outing on human rights, an issue that will be covered extensively by others, I want to highlight an area that I hope will give the Minister the necessary food for thought in respect of the amendments. The human rights issue is naturally all encompassing, but political and public interest has recently been most exercised by the human rights loophole under which private care homes are not bound by the legislation and can therefore evict residents without breaching article 8. Their public sector counterparts cannot do so.

We are sorry that the Government are dragging their feet over this. During the 15 June 2007 debate on the private Member’s Bill introduced by the hon. Member for Hendon (Mr. Dismore) to clarify the Act, the hon. and learned Member for Redcar (Vera Baird), the former Under-Secretary of State for Constitutional Affairs, herself a human rights lawyer, talked the Bill out rather than bringing it before the detailed scrutiny and consideration of Committee. It is something that we would have welcomed. On that occasion it was something that we did not resist; indeed, we would encourage it. We were therefore disappointed to see that that was the official view of Government on that occasion.

In a Westminster Hall debate, the Under-Secretary of State for Health, the hon. Member for Bury, South (Mr. Lewis), said:

“The current state of affairs is an anomaly, and neither Government nor Parliament intended that publicly funded residents living in private sector establishments would not be covered by the Human Rights Act 1998. That is an unintended consequence, and we need to put it right. The Government have decided that the appropriate time to do that is when we consult on the new rights and responsibilities Bill, in the context of a new constitutional settlement, on which the Ministry of Justice will lead.”—[Official Report, Westminster Hall, 11 December 2007; Vol. 469, c. 50WH.]

I rather hoped that there may be an opportunity for Government to do some joined-up thinking and even some joined-up working here, and contemplate that this is an area where, at the very least, as it was not possible under the private Member’s Bill procedure, we could have the discussion on the issue in Committee and under its rules. Even if the Minister were to say that he is not minded to proceed with amendments that deliver the human rights angle—I cannot be sure, and I hope that he might find himself persuaded by arguments produced by others—it would none the less be extraordinarily helpful for the Committee to place on record some of the arguments which would otherwise have been considered, had the hon. and learned Member for Redcar enabled the hon. Member for Hendon’s private Member’s Bill to proceed to Committee. I am pleased to note that that view is shared across the House as the amendments that relate to some of the human rights have been supported by others.

2:15 pm
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Sandra Gidley (Shadow Minister, Health; Romsey, Liberal Democrat)

On first glancing at these amendments, I thought that it was useful to have greater clarity about the composition of the board. I would have hoped that that was an automatic consideration. I was interested when the hon. Member for Eddisbury referred to the Equality Act 2006 as I think I might be the only person here who had the pleasure of serving on that particular Bill Committee. During the progress of that Committee, numerous attempts were made to prescribe the detail of the board even more. Those were largely resisted because the underlying assumption behind the Equalities Act was that a rights-based approach should be at the heart of everything and that it did not help to continue some of the silos that existed with the separate equalities bodies.

Obviously we are now in a situation that is not quite the same. A large number of legitimate concerns have been raised about whether social care may be diminished in some way. I have a lot of sympathy with that argument because social care has always been a second cousin and it was pointed out in the evidence on Tuesday that the bulk of the inspection will be in the social care sector. Something will have gone badly wrong if the social care sector does not have a fair share of the action.

Although I hope that such considerations are automatic, it is useful to think about new sub-paragraph (1B), which mentions

“collective experience and knowledge relating to all of the Commission’s functions”.

Again, I hope that, when a board is appointed, care is taken to ensure that all functions are represented in some way. To draw a parallel with the Equality Act, we had interminable discussions about whether there would be enough women on the board, whether there would be enough people from ethnic minorities, and whether people with disabilities would be adequately represented. Most people reluctantly decided to go with the flow to a certain extent and to trust that it would happen in practice. So far, there have not been any problems, but I can well understand why there were concerns.

In an earlier new sub-paragraph, there is an attempt to beef-up public participation and involvement. Because concerns were raised on Second Reading, I  would welcome the Minister’s comments on that subject. I also query what new sub-paragraph (1A)(e) means. It seems to be a catch-all measure. I can understand why it was put in, but I wonder whether there are any circumstances in which the hon. Member for Eddisbury envisages that it would be used. On new sub-paragraph (1D), as a member of the Select Committee on Health, I understand that there have been a number of recommendations about Select Committees taking on extra powers, but more time will be needed if that is to happen because it is hard to keep on top of the relevant legislation.

I shall briefly discuss amendment No. 160. I fully support the Joint Committee on Human Rights, but am yet to be convinced about the merits of separate adult social care committees, health care committees and mental health committees. Again, it is particularly important that there is greater awareness of mental health throughout the commission because one of the problems in society as a whole is that the issue of mental health is often parked-off to another Department. Even in the health service, there is often a separate mental health trust and that does not help the wider understanding of mental health issues in society. Rather than having a separate committee that seems to have responsibility for mental health issues, I would prefer the Bill to establish a way of underpinning everything else. Because so many people are affected by mental health issues and there is so little understanding, it is important to make that subject almost a core value of the commission.

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Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

I am rewinding slightly to the hon. Lady’s question about why new sub-paragraph (1A)(e) is in the amendment. It is indeed intended to be a catch-all, but we should recognise that the commission intends not to set itself up against the Government or the Secretary of State, but to ensure that it runs with the grain of what is trying to be achieved cross-government and independently by those experts in the sector who are at a supervisory rather than operative level. That is why the catch-all is there: to ensure that the Secretary of State’s influence can genuinely be applied in that area.

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Sandra Gidley (Shadow Minister, Health; Romsey, Liberal Democrat)

I thank the hon. Gentleman for that clarification. I would question the need for all the committees, but I recognise the spirit in which the amendments were tabled, which was to try to deal with those legitimate concerns.

The hon. Gentleman referred to various groups that were discriminated against and mentioned Afro-Caribbean men. Under the Equality Act, there is a race equality duty within the health service, so again that should be a core function at the heart of the commission anyway. If we have got the processes right and everything is working, I wonder whether this is absolutely necessary and whether we need an internal body to scrutinise that, or whether it is best left to the equality body. As someone who has taken a great interest in equality issues, I am trying to avoid unnecessary duplication.

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Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

The best I can do by way of intervention is simply to say that, in the running and supervision of the processes and governance of a large  organisation, anything that helps at a very economic cost—and, hopefully, a commission of this nature would not be high-cost—is where one gives priority and focus.

The easiest example is that of a large company manufacturing in many countries all over the world. If the board that is overseeing all the operations has as agenda item No. 1 every single time health and safety, particularly safety breaches, it is likely that the whole organisation culturally will come to know that the board focuses on and values that and it is not just an add-on in order to tick a box and satisfy the culpability-avoidance of others. That is what the proposal is intended to achieve. It is to get focus at an economic cost.

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Sandra Gidley (Shadow Minister, Health; Romsey, Liberal Democrat)

I take the hon. Gentleman’s point but I question whether we need a specific person with a specific role to do that, and whether that should be a core function of that particular board. I look forward to the Minister’s comments on the amendment.

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Kelvin Hopkins (Luton North, Labour)

I will speak briefly to make two points. The hon. Member for Eddisbury raised, at least implicitly, the question of human rights and my amendment to a later clause, which I will not discuss now. It clearly is necessary to have a capacity to monitor human rights within the structures that are set up. One does not want to be specific. I am not being specific, but clearly that is needed.

I wanted to raise another issue, which was touched on by the hon. Member for Romsey: racism within the care services. That has been raised strongly with me by people who work in the industry. Racism shows itself in a variety of ways and circumstances, both with staff and those in receipt of care. It is important to have representation at every level, particularly of groups of minority ethnic people because these are such sensitive areas. It does happen where management bodies are all-white, all-middle-class and all-professional and do not have sufficient sensitivity to the concerns and to what goes on at the grass roots, at the basic service level.

I know that there are serious concerns about racism towards staff and towards patients and, of course, a lack of sensitivity between the different minority groups. I represent a constituency with tens of thousands of people from a range of ethnic minority backgrounds.

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Sandra Gidley (Shadow Minister, Health; Romsey, Liberal Democrat)

I was a little concerned about the comments about racism. I am glad to clarify a little because my experience is that there are instances that are often regarded as racist but are unintentional. It is a lack of understanding, rather than something that needs to be dealt with by a heavy hand. It is more about getting the processes and the understanding right in the first place, rather than coming in afterwards.

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Kelvin Hopkins (Luton North, Labour)

I thank the hon. Lady for her intervention. I agree that it is a matter of sensitivity and that people sometimes misunderstand each other, yet there are definite instances of racism as well, which I have been informed about.

2:30 pm
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Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

The hon. Gentleman is raising a vital point. I am glad he is taking the opportunity to do that now, as I am absolutely sure that the whole Committee will know of people in care settings who are perhaps of a generation or personality that has not really caught up with how the modern world, quite properly, now treats all its citizens. They might say that they do not wish to be cared for by someone not of apparent Caucasian origin. It is absolutely vital that we recognise that existing laws and management processes are intended to ensure that that is addressed in a sensitive and properly managed way. The vital question that the hon. Gentleman raises is whether our Committee should be considering whether there is any additional legislative requirement to help reinforce what now needs to happen to try to address such extremely difficult and sensitive problems.

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Kelvin Hopkins (Luton North, Labour)

The hon. Gentleman makes valid points; I am not suggesting anything specific for this stage of the Bill. There are other aspects; for example, those from religiously conservative origins from outside Britain may be sensitive about being cared for by people not of their community or gender. Such matters are of serious concern in my own constituency, and over time one hopes one becomes more relaxed about them. The way to deal with that sensitivity is to make sure that there are representations from minorities at every level—including the highest level—so that we do not just gloss over the difficulties and that people are sensitive to them. It is not about having just one representative from a particular group who may perhaps be more liberal and relaxed. Lord Patel, for example, is urbane, sophisticated and westernised, but some people are not quite like that. One wants a form of representation at every level, although not necessarily with reserved seats. It is about Ministers being sensitive to these matters and making sure that there is a balance on all bodies at every level.

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Anne Milton (Shadow Minister, Health; Guildford, Conservative)

It is not only about representation. Does the hon. Gentleman agree that it is also about training and cultural awareness? That is absolutely crucial, and always a concern. When there is change, there is even more concern about budgets getting tight—I know that has been mentioned already—and one thing that goes is training, particularly cultural training, which is seen as a soft target.

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Jimmy Hood (Lanark and Hamilton East, Labour)

Order. Before the hon. Gentleman replies, we seem to be straying a bit from the amendment.

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Kelvin Hopkins (Luton North, Labour)

I take your strictures, Mr. Hood. I have made my point; the hon. Lady is absolutely right. The way to ensure that we get that training is to have representations from minorities on all bodies to make that point.

Photo of Ben Bradshaw

Ben Bradshaw (Minister of State (Health Services; Minister for the South West), Department of Health; Exeter, Labour)

To return to the amendments—[Laughter.]

The amendments seek to specify a great deal more prescriptive detail than we feel happy with in the Bill. They refer to appointments, board responsibilities and the advisory committee make-up for the new Care  Quality Commission. As I have said already, we are establishing a commission to be an independent voice on health and adult social care matters. We believe it should be for the commission itself to establish the organisational structures and split of responsibilities that it determines it needs best to carry out those functions and deliver its aims. That should extend to the executive team it chooses to have, the committees it feels are appropriate and whether those committees are chaired by a member of the commission or by someone else. I remind the Committee that the new commission will be under statutory duties to fulfil the functions of the existing regulators, and will be answerable through Ministers to Parliament, so there is that guarantee.

Secondly, we are establishing a single regulator to reflect the greater integration of services taking place across previous boundaries between health and adult social care. An integrated regulatory system, where all providers are assessed against the same standards by the same body, will provide the consistency and assurance that we believe the public expect. Specifying that the commission must have executive officers and committees that lead on different client groups could undermine the commission’s ability to adopt that integrated approach; it could serve only to invite calls from other groups that would also like their specific interests to be represented at a high level in the organisation.

That point extends to how the commission determines that it should address its responsibilities under the Human Rights Act 1998. I will say a little more about that in a second, but as a public body, the commission—I emphasise this—will be subject to the Act and will have to carry out its functions in ways that are compatible with it. There is nothing to prevent the commission from appointing expert advisers to give specific advice, where it considers that necessary. We believe that it is better to give the body the freedom and powers to determine that, rather than trying to impose something centrally.

To clarify things in a little more detail—I know that we will discuss human rights later, but this was referred to by my hon. Friend the Member for Luton, North and the hon. Member for Eddisbury—the Bill makes it clear that decisions on registration can be taken by reference to the registration requirements and the requirements of any other piece of legislation that the commission thinks relevant for registration purposes. That means that if the commission is satisfied that a registered provider is not meeting its obligations under the Human Rights Act, it will be able to take appropriate enforcement action. As the hon. Member for Eddisbury acknowledged, the Government are committed to ensuring that independent sector care homes are covered by the Human Rights Act. We hope to address that in the forthcoming British Bill of rights and responsibilities, which will allow us to deal with it in the wider context of the public authority definition. In the meantime, this Bill will ensure that the Care Quality Commission can enforce regulatory requirements, in line with the relevant provisions of the Human Rights Act, in its current form and as it may change in the future. The reason we feel that it is better to wait for the forthcoming British Bill of rights is that the meaning of public authority goes much wider than care homes and it is important that we find a lasting and effective solution. As has already  been acknowledged, the Ministry of Justice will address the issue in its consultation on the British Bill of rights and responsibilities, and draw on a wide range of expertise during that process.

I hope that it is clear that we see the independence and effectiveness of the chair and board as crucially important in establishing an effective commission. We will ensure that the commission is a model of independence in that respect, as we did when establishing the Healthcare Commission and the CSCI. Amendment No. 158 specifically proposes that the appointment of the chair be subject to pre-appointment scrutiny by the Health Committee. I am pleased that the Opposition are supporting our proposals for strengthening the role of the House of Commons in public appointments, which the Government set out in the Green PaperThe Governance of Britain.” That includes proposals to involve Select Committees in certain public appointments; however, it suggests that appointments already subject to independent scrutiny and regulation are probably not suitable for additional pre-appointment scrutiny by Parliament.

Appointments to the Care Quality Commission will be made by the Appointments Commission and regulated by the independent Commissioner for Public Appointments. I do not, therefore, believe that it is necessary for the Select Committee to have an additional scrutiny role. However the Government are currently preparing a list of appointments that would be suitable for pre-appointment scrutiny. The list will be agreed with the Liaison Committee and, where appropriate, with the Commissioner for Public Appointments, and we should await the outcome of that process. I therefore ask the hon. Members to withdraw the amendments.

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Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

I just want to be absolutely clear that the Minister’s final statement about the use of the public appointments commission is intended to be the definitive position, in light of the comments of the Secretary of State on Second Reading.

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Ben Bradshaw (Minister of State (Health Services; Minister for the South West), Department of Health; Exeter, Labour)

Yes.

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Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

I have listened carefully to what the Minister has just said and to the other hon. Members who spoke, on both sides of the Committee. It is important to recognise how the concept applied in the amendments is intended to highlight the need for independence. The words used by the Minister in response to that may be helpful in our forthcoming discussions on independence. I hope that we will be able to reflect on the ability to reinforce that through the way in which it is intended that the Bill will operate.

In terms of the concepts in the amendment, however it seems to me that as we develop our scrutiny of the Bill, if the balance the Minister identified between the underlying tension between prescription and the freedom to act independently becomes clear—including the conceptualisation of the establishment of bodies and recognising also the danger of insufficient prescription—there will not be continuing organisational confidence that things would not fall through the gaps. This ties into the previous discussion. Looking at the question holistically, if we feel that the whole scrutiny of the Bill does not satisfy the concerns that underpin a serious set  of amendments in this group, either we would be able to come back to it on Report, or possibly we would want it to be considered in another place.

Some of the reassurances have been helpful, and give us a clue as to where the debating points are as we proceed. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Greg Mulholland

Greg Mulholland (Shadow Minister, Health; Leeds North West, Liberal Democrat)

I beg to move amendment No. 131, in schedule 1, page 107, line 23, after ‘State’, insert—

‘(aa) a Deputy Chair so appointed with particular responsibility for human rights’.

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Jimmy Hood (Lanark and Hamilton East, Labour)

With this it will be convenient to discuss the following amendments:

No. 132, in schedule 1, page 108, line 27, at end insert—

‘( ) The Commission must insert a human rights director who is to be an employee of the Commission.’.

No. 133, in schedule 1, page 109, line 2, at end insert—

‘( ) The Commission must appoint a human rights committee.’.

No. 130, in clause 2, page 2, line 14, at end insert—

‘( ) the need to observe the human rights of those accessing adult social care and health services.’.

No. 79, in clause 2, page 2, line 20, at end insert—

‘(g) the need to ensure that decisions regarding the degree of risk to service users and the prioritisation of regulatory action protect and promote respect for human rights in accordance with the European Convention on Human Rights.’.

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Greg Mulholland (Shadow Minister, Health; Leeds North West, Liberal Democrat)

Thank you Mr. Hood; it is a pleasure to serve under your chairmanship.

As someone who was something of a sceptic, I take this opportunity to say that I felt the evidence sessions were extremely worth while in allowing the Committee to probe this very important issue. My only complaint would be that—unlike this Committee Room where we have space to stretch out—there was not enough room, so there should be a larger room for future events. I thank the hon. Gentleman for Wirral, West for his helpfulness and graciousness this morning in moving to allow me to sit with my colleague. It was much appreciated.

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Stephen Hesford (PPS (Vera Baird QC, Solicitor General), Law Officers' Department; Wirral West, Labour)

Will the hon. Gentleman give way?

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Jimmy Hood (Lanark and Hamilton East, Labour)

Order. I think we should get to the amendment.

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Stephen Hesford (PPS (Vera Baird QC, Solicitor General), Law Officers' Department; Wirral West, Labour)

Just in passing—

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Greg Mulholland (Shadow Minister, Health; Leeds North West, Liberal Democrat)

I would be happy to give way but unfortunately I have been overruled.

The amendments relate to an ongoing theme, which has already been mentioned, and amendment No. 160,  tabled by the hon. Member for Eddisbury and his colleagues, actually has precisely the same recommendation as our amendment No. 133. We will hear more about human rights when we get to clause 5 and new clause 3 and in amendments Nos. 81 and 82, tabled by us and the hon. Gentleman for Luton, North. The point of the amendments is that a lot of us—and a lot of organisations—feel that the need to put human rights at the heart of the new commission is not sufficiently in the Bill currently.

The Joint Committee on Human Rights in its recent report made the following recommendation:

“We recommend that the forthcoming merged inspectorate for health, social care and mental health adopts a human rights framework with the intention that the framework informs all of the inspectorate’s work and so makes it more effective in fulfilling its statutory duties.”

It is fairly clear that there needs to be human rights compliance, and of course the Bill is compliant in strict terms with the Human Rights Act, as it has to be. Nevertheless, I feel that at this stage—certainly on the face of the Bill—regard for human rights and human rights legislation has not been given central importance.

On the amendments that apply to clause 1, amendments Nos. 131 to 133 are clearly organisational, amendment No. 131 introduces a deputy chair with responsibility for human rights, amendment No. 132 would appoint a human rights director and amendments Nos. 133 and 160, a human rights committee. Amendments Nos. 130 and 79 apply to clause 2 but are relevant at this stage, hence the grouping. They deal with the functions of the commission, and would ensure that actions and decisions taken by the new commission have full regard for human rights and human rights legislation.

Following the comments made by the hon. Member for Eddisbury, I want to say how strongly we feel that the loophole that currently excludes private care homes must be closed, and I note the Minister’s remarks on that. However, that must not be used as an excuse for not putting human rights legislation and a regard for human rights at the heart of the Bill. I would be concerned were that the case, and I ask the Minister to respond to that point.

The amendments ensure that human rights are at the heart of the new commission and its functions, methodology and, most importantly, its work. I believe that that needs to included in the Bill. I would be delighted if the Minster accepted some or all of the amendments—it would be a wonderful start to the Committee. If he will not, I hope that he will reassure the Committee that that approach and regard for human rights is there, even if it will not be in the Bill.

2:45 pm
Photo of Angela Browning

Angela Browning (Deputy Chairman, The Conservative Party; Tiverton and Honiton, Conservative)

In his response to the amendments tabled by my hon. Friend the Member for Eddisbury, the Minister made it clear that he does not want to be—in his terminology—prescriptive with regard to the Government’s setting out in the Bill the specific responsibilities of, for example, the deputy chair or individual commissioners. Further on in the Bill, we will find that he has departed from that just a little, but that is for other clauses.

In public appointments, it is common to see boards advertise vacancies with particular emphasis on the disciplines that the board or organisation is looking for. I hope that as the first group of new regulators is put together, it will be easy to pick up early on whether there are any glaring omissions, such as the failure to identify in the job “spec” people who have knowledge of human rights. In the same way, one would expect to see the appointment of someone to take responsibility for governance throughout the organisation. That is par for the course in many cases. However, in light of the amendments tabled by the Liberal Democrats and those already dealt with on behalf of my hon. Friends, I wonder whether the Minister, who will monitor how these jobs are initially defined, would be minded to intervene were he to discover a glaring omission, and that the organisation had nobody with human rights expertise or governance to guide it.

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Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

All I wish to do with these amendments is, without repeating, to reread my comments from the previous session as they are pertinent. That gives the Minister a second opportunity for reflection even in this short period of time.

The point raised by my hon. Friend the Member for Tiverton and Honiton is important. During the scrutiny of the Bill it is worth making such points, because many people who operate the CQC and think about how to appoint the appropriate people will read the proceedings as part of their job briefing. For anybody who is sufficiently motivated and committed to apply to be in the CQC, one of the tests will be whether they have had the initiative to read our proceedings, and they will have picked up on the sort of operational experience that my hon. Friend has put on the record. I hope that that meets the Minister’s concern about prescriptive legislation, while benefiting from the parliamentary scrutiny process.

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Ben Bradshaw (Minister of State (Health Services; Minister for the South West), Department of Health; Exeter, Labour)

The hon. Gentleman has kindly answered the hon. Member for Tiverton and Honiton’s question. In the meantime, I was hurriedly trying to find out about existing protocols for ministerial interference in appointments made by the Appointments Commission, but I did not get the answer quickly enough. All that I can tell the hon. Lady is that so far in my ministerial experience, I have not, as far as I am aware, ever intervened or taken a critical interest in appointments made by the Appointment Commission because I felt that they did not reflect the sorts of needs and balances that she desires to see.

There is a general view that the Appointments Commission has done an extremely good job, and the hon. Member for Eddisbury is absolutely right: I would expect that one of the first things that the Appointments Commissioner or commissioners responsible for appointing members to the new regulator would do—and, once the new chief executive or chair is appointed, one of the first things that they will also do—is to read the proceedings of this Committee and take into account the comments that have been made by hon. Members. I imagine that that is something that they would do diligently.

Photo of Angela Browning

Angela Browning (Deputy Chairman, The Conservative Party; Tiverton and Honiton, Conservative)

One of the things that one observes from time to time—not in every case, of course—is that a specific board appointment is  advertised and certain disciplines and expertise are looked for. It may well be human rights or, quite commonly, as I mentioned earlier, governance. That has been precipitated because of a breakdown and because of problems having emerged through a lack of existing expertise on the board. We want the Minister to do well with this commission; we want him to get off to a good start because whether or not he is detached from it, this will be his baby. He should face up to that, and I am trying to be helpful to him. It is far better that some guidance be given as to the balance of expertise at the beginning, rather than waiting for something to go pear-shaped and then deciding that expertise is needed on the board.

Photo of Ben Bradshaw

Ben Bradshaw (Minister of State (Health Services; Minister for the South West), Department of Health; Exeter, Labour)

I know that, sadly, the hon. Lady may well no longer be in this House when the new organisation is up and running, so perhaps she would like to consider potential future activity herself in this regard. I suspect that that is not the first or the last job application that we will encounter—or may already have encountered in our evidence-taking sessions.

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Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

Would the Minister be able to encounter anybody who is a freer spirit and more independent to get us off to a good start?

Photo of Ben Bradshaw

Ben Bradshaw (Minister of State (Health Services; Minister for the South West), Department of Health; Exeter, Labour)

The point is well made, but rather than being prescriptive personally—I have already sought advice from my officials because I would like the answer to this question myself—if at the same time we are stressing the importance of the independence of the Appointments Commission, it would be inappropriate for me as a Minister to intervene or prescribe in that way. However, we are making it clear in the Bill that we expect the new Care Quality Commission to fulfil the statutory functions of the existing regulators. It is inconceivable that the commission will not take great care in ensuring that it appoints a board whose balance reflects an ability to fulfil those statutory functions and the human rights requirements that the amendment refers to, which I would like to come to now.

Without repeating too much of what I said in response to the previous set of amendments tabled by Conservative Members, we already make it clear in clause 2 that the commission must, in everything that it does, pay particular heed to safeguarding the rights and welfare of vulnerable people. As a public body, the commission will be subject to the Human Rights Act and will have to carry out its functions in a way that is compatible with that Act. It will be able to look at the performance of providers against registration requirements that follow the spirit of the European convention on human rights. Providers that fail to protect the dignity and human rights of individuals in their care will be liable to the appropriate enforcement action, which could include prosecution or the cancellation of registration.

Amendments Nos. 131 and 133 would establish particular roles within the structure of the new Care Quality Commission, each with the responsibility for human rights issues specifically. Our view is that we should not be over-prescriptive regarding the make-up of the board, and the board should not be made up of delegates. We fear that other groups would then claim that their voices have as much right to be heard—consumers, professionals being regulated, for example—as those set  out in the amendment as “human rights” specialists. In her questioning of the previous amendments, the hon. Member for Romsey alluded to the fact that in some cases, having a specialist board appointment could lead to a silo mentality or ghettoisation of a particular issue, and serve to prevent that issue from being integrated properly into every aspect of the board’s—and, indeed, the organisation’s—work and culture. As I said earlier, there is nothing to prevent the board from appointing expert advisers to give it specific advice where it needs additional expertise.

Also, there is a requirement in the Bill for the commission to establish an advisory group and other committees that it sees fit. There is tangible protection for all interests served by the commission in its public accountabilities. It is required to report annually to Parliament, its accounts will be independently audited, and it will be dealing with high-profile and intractable issues that will keep it very much in the public eye. Therefore, we believe it right that the new organisation itself establish its structures and the split of board-level responsibilities. We believe it better to give it the freedom and powers to do so, rather than imposing something separately.

In response to the question from the hon. Member for Tiverton and Honiton, I am advised that the Secretary of State delegates all the functions to which the hon. Lady refers to the Appointments Commission. Technically, the Secretary of State could take them back and intervene, but we are not aware of that ever having happened. For the reasons that I have outlined, I hope that the Members concerned will withdraw their amendments.

Photo of Greg Mulholland

Greg Mulholland (Shadow Minister, Health; Leeds North West, Liberal Democrat)

This is the second time that I have served on a Committee with the Minister. Last time, we considered the rights of goldfish in fairgrounds and dogs having their tails cut up or not; this time, it is human rights. As ever, I accept some of what the Minister has said, but I do not think that the intention of the amendments is prescriptive. Clearly, some suggestions are intended to probe the general principle, but it is more fundamental than that; we are talking about the key guiding principle that I and many others believe firmly should be at the heart of setting up the commission. There are many people and organisations, including CSCI, that believe that human rights could be strengthened in the Bill in organisational terms. Frankly, it is too important to leave until the stage when the commission is, rightly, looking at the best way to set itself up. I will accept that the particular organisational suggestions may not be the right ones, but I still feel that the principle is right. Therefore, perhaps we can come back to that again, following the Bill going through the House.

I was hoping for more supportive noises from the Minister on the actions and decisions taken. It is fundamental that everything that the commission does has regard to human rights and to human rights legislation. Let me clarify one point: my hon. Friend the Member for Romsey was talking not about the human rights committee but about social care, health and mental health. She fully supports the idea put forward by both parties on this side of the Committee regarding a human rights committee.

Also, I am slightly disappointed that the Minister did not address the specific concern that I raised with him—my hope that the loophole regarding private care homes being dealt with later does not mean that the human rights focus is being dropped from the Bill. I believe that that is very important. I hope that we will come back to this issue, but on the basis that this is an early amendment and there has been a useful discussion, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1 agreed to.