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With this, we may take amendment No. 259, in
page 40, line 18, at end insert—
`( ) Regulations shall make provision—
(a) prescribing the criteria by which an authority will be deemed to have failed in relation to its functions;
(b) prescribing arrangements for consultation with the failing body and other relevant interests;
(c) prescribing the circumstances and procedures to ensure that wherever appropriate the failing body has the opportunity to remedy any failure to properly exercise any of the relevant functions;
(d) providing for a right of appeal to a court by the failing body as to the law or any finding of fact by the relevant authority against the authority's judgment that a local authority has failed in its provision of relevant services.'.
We now move to clause 46 where, once again, the Minister will have to find some fresh vocabulary to explain why we are proceeding with care trusts. We have heard a great deal about voluntary arrangements, no compulsion and equal partners. That may well have been valid for clause 45, but it is not valid for clause 46, which provides that the Secretary of State can move in and impose a care trust. So we can now say goodbye to Mr. Hyde and hello to Dr. Jekyll because this is perceived as a punishment. It is difficult to see how a care trust can be both a reward for good behaviour and a punishment for bad behaviour. All we know about clause 46 and the circumstances in which it will be invoked is first, that the authorities involved did not want to enter into an arrangement voluntarily, and secondly, that something has gone wrong. Against that background of an unwillingness to work together and something going wrong, it seems heroic for the Secretary of State to move in and impose a new arrangement that is as yet untried, and about which we have had a full debate.
The import of amendment No. 260 is to narrow the circumstances in which the Secretary of State can intervene by deleting the words ``any of''. The current wording of the Bill suggests that if a local authority failed to exercise any of its health related social service functions adequately, the Secretary of State could move in and impose a care trust structure. Such a direction could result from a difficulty with a single aspect of an individual service. This is very draconian given that there is no requirement on the Secretary of State to give the authority the opportunity to remedy the problem. I hope that the Secretary of State will agree that the clause 46 solution should be applied only when everything else has failed and attempts have been made to solve the problem is in more conciliatory ways than by the imposition of a care trust. The Minister could begin to allay some of the concerns about clause 46 if he indicated the circumstances in which the functions had failed, whether the evidence that substantiated that view would be in the public domain, and whether it would have to be underpinned by independent professional opinion.
It might help inform the rest of our debate on clause 46 if, in his response to amendment No. 260, the Minister could say a little more about what might trigger such a draconian remedy with all the consequences for local democratic accountability that would flow from it.
I have just a couple of questions to add to those of the right hon. Gentleman. The briefing note that has been circulated quite rightly says:
The right hon. Gentleman's amendment would set out in the Bill a procedure whereby the Minister will have to operate in an open and transparent way in setting out the grounds on which a failure is identified and what that failure is. It would provide an important safeguard in the exercise of the Secretary of State's power. I hope that the Minister will accept the amendment or something similar and recognise that transferring a service into a care trust or a flexibility ought not to resemble the use of a sledgehammer to crack a nut. If a particular service is failing, there might be a case for some of the measures contained in clause 46, but no need to transfer all the other services that may well be part of that local authority's social services department. It would be useful to have some clarity about how this power will be used.
Perhaps the Minister could also add a little detail to the reference in paragraph 36 of the briefing note to the proposal to have an arbitrator who could be brought in to determine the appropriate level of delegated functions. Who would be the arbitrator? Who would appoint him or her? What mechanisms will be in place to ensure that the local authority and the health service are satisfied with that? How will that person will be appointed? Those are important questions in understanding how the power under clause 46 will be used. I hope that the Minister will be able to give us some reassurances that the underlying methodology and the practice will be open, transparent and able to be checked by all involved.
As my right hon. Friend said, clause 46 raises quite different and important issues and I give the Committee notice that we shall be seeking to oppose it on stand part. In anticipation that the Government will resist that move, we have also tabled amendments to improve the clause and minimise its negative impact. At this stage I wish to associate myself with my right hon. Friend's amendments. They are a clear attempt to improve the transparency of the arrangement proposed under clause 46 and to reduce the arbitrariness of the Secretary of State's apparent power. Although we shall oppose the clause on stand part, I wish my right hon. Friend's amendments a fair wind as they are a valid attempt to improve what is a seriously flawed clause.
It may be helpful to the Committee if we start our discussion about the amendment with a few observations about the structure and nature of the clause. As the right hon. Member for North-West Hampshire will be aware, subsections (1), (2) and (3) of clause 46 are about directed partnership arrangements and subsection (4) is about the step that the Secretary of State might want to take to establish a compulsory care trust. The problem that we are trying to address, which is the failure to deliver an adequate level of service, can be addressed in one of two ways: either by a directed partnership arrangement under the Health Act 1999 or, if the Secretary of State so wishes, by the establishment of a compulsory care trust.
The right hon. Gentleman will have had an opportunity to read the Government's briefing note in which we try to put some flesh on the bones of our thinking on the clause. We make very clear the circumstances in which we would expect to take steps to establish a compulsory care trust. We use the expression that it would be established ``as a last resort''. I hope that that is an important clarification for the right hon. Gentleman.
The hon. Member for Runnymede and Weybridge talked about the arbitrary nature of the powers in clause 46 and expressed his concern that they could be used arbitrarily by the Secretary of State. That is not the case. We have debated similar issues on many occasions and he will be aware that the Secretary of State is not allowed to act arbitrarily. There is a framework of public law and general principles of law that makes the method by which the Secretary of State is expected to reach such decisions and conclusions quite clear. There is no suggestion, either in the Bill or in what Ministers or the Government have said in the NHS plan, that those general principles—the need to act fairly on the basis of evidence, and so on—will in any way be supplanted by what is proposed in clause 46.
It is very important, for my hon. Friends at least, that the Committee should understand that this is not—to use the expression of the hon. Member for Sutton and Cheam—using a sledgehammer to crack a nut. I ask hon. and right hon. Members to ask themselves why would we want to do that? We clearly would not. We want to develop the policy about care trusts in a sensible and reasonable fashion.
The right hon. Member for North-West Hampshire asked me to change my vocabulary and I am trying to do so. Let me reassure him, too, that this is not a smoke and mirrors operation whereby we shall effectively be able to use clause 46 to establish care trusts compulsorily across the country. If the hon. Member for Runnymede and Weybridge had looked at the Bill carefully he would know the answer to that question. He might want for his own reasons to be seen to be opposing clause 46; but I can reassure him that the clause has nothing whatever to do with any suggestion that the Government's policy is to use the provision universally to require the establishment of care trusts. That could not be done because, notwithstanding the Opposition's amendments, a clear set of preconditions needs to be established before the Secretary of State can use those powers; and those preconditions would have to be complied with to the letter before he could act.
The purpose of clause 46 is to ensure that the Secretary of State can intervene if service users are being failed, and if the integration of NHS and social service functions would improve the outcome for them. The Secretary of State needs to be able to act, and the words ``any of'' are important in allowing us to target that intervention to the benefit of the user.
The aim of social services is to provide a package of care to support older people and enable them to live independently within the community. If one element of that package—perhaps the home help service—fails to deliver the appropriate high-quality service, and if social services fail to monitor and review that provision, those people could be at risk and their ability to live at home compromised. If it becomes clear that it is not a one-off problem but a consistent failure of function, it would be the Government's duty to intervene. It would be sensible to use the intervention power in relation to that failing service. We need to be able to target the direction power, and we can add other functions if necessary.
The amendment would not limit the breadth of the new power. For local authorities, clause 46(3) limits intervention to a failure in social services. However, the words ``any of'' serve a crucial purpose. They make it clear that the Secretary of State can intervene when there is a failure of any health or social services function. Removing those words would cast doubt on that power, and might limit the intervention to cases of failure in all of a local authority's social services functions, or all of a primary care trust's health functions.
We are not using a sledgehammer to crack a nut. We shall be specific. We need to ensure that the package that is delegated is capable of being improved, and that it is not put at a disadvantage by being isolated from related services. That point is covered in subsection (2), which we seek to clarify with an amendment that I hope will have the support of the right hon. Member for North-West Hampshire.
Finally, I turn to the functions of the NHS and social services as set out in the partnership arrangements under the Health Act 1999. Amendment No. 259 attempts to build a detailed package around the need to intervene when services are failing. The right hon. Gentleman probably knows that we already have appropriate mechanisms to identify failure. They include performance management, monitoring, inspections and reviews. Those mechanisms will provide evidence to show when it is appropriate to use those powers. The usual process of enabling a body to improve its services through special measures will be allowed; but the direct use of the power may be required.
Clearly, if patient or client safety is an immediate problem, action may need to be taken more swiftly. It is not necessary to construct a new set of arrangements and begin the proliferation of new processes of review. The powers are intended to build on what already exists and not to replace other models of intervention. They are designed to give us the additional and valuable option to direct the use of the partnership arrangements. We shall therefore act if there is evidence of failure, using existing mechanisms to allow us to come to a decision, and we shall act in a reasonable manner. When intervening, we shall consider the best options to improve services for the benefit of all our constituents.
I am grateful to the Minister for dealing with some of my concerns. I take it that intervention will be a last rather than a first resort. He listed several procedures and special measures, but they would not necessarily provide a swift solution. My residual concern is about transparency and fairness to the local authority. Will he give an assurance that the reasons for his intervention will be put into the public domain, that the local authority will have an opportunity to respond to them and that, if possible, his concerns will be backed up by impartial, independent, professional opinion, so that it is not just his view or that of his Department? If that were the case, we might be able to cope without the regulations.
We need an assurance that the Minister would not merely say to the local authority, ``I'm sorry, but there has been an awful case in the papers. I want to use my powers of intervention'', and that there would be all the due process of equity, transparency and fairness. There should be an opportunity to respond, and the measure should be used only as a last resort when everything else has failed. If the Minister can give that assurance—in his own words rather than mine—it would allay some of the concern behind amendment No. 259.
I support the points being made. I draw the Minister's attention to the debate on the Food Standards Agency. It was recognised that the Secretary of State needed to have the power to withdraw a function if it was deliberately not carried out effectively. In that case, there was a prescribed process, which provided the checks and balances mentioned by the right hon. Member for North-West Hampshire, including an appeal mechanism. The agency took the step and the Secretary of State was the formal appeal mechanism.
The hon. Gentleman has used the example of the Food Standards Agency legislation. This legislation is slightly different, because the Secretary of State would not be withdrawing a power that was originally his and that he had delegated, but would be intervening and taking a power that currently belongs to the local authority.
That is an interesting observation. I disagree with the hon. Gentleman, because environmental health is a local authority direct function, just as the delivery of social services and some of the health provision is a direct function of local authorities. Serious checks and balances should be in place before the Secretary of State has the ability to override a locally elected, democratic body. That is why I share the right hon. Gentleman's concern. I hope that the Minister will flesh out the checks and balances and the opportunities for a local authority to make a clear case when a disagreement on policy arises between the Secretary of State and a locally elected body.
I beg to move amendment No. 305, in page 40, line 9, leave out `and' and insert--
`it shall notify all statutory patient representative bodies at the time in existence within the area covered by the body of its intention to make a direction under this section and shall invite representations regarding the proposed direction from them and, having taken such representations into account.'.
With this it will be convenient to take the following: Amendment No. 292, in page 40, line 16, at beginning insert--
`and has consulted with and it is supported by the Patients Forum and other relevant statutory and voluntary bodies in the relevant area'.
Amendment No. 297, in page 40, line 18, at end insert—
`(1A) The relevant authority may exercise this power only after taking full account of the conclusions of a best value review'.
The amendments would require the relevant authority to take into account the views of the appropriate statutory representative bodies in the area affected. The Minister talked at length about the voluntary nature of the arrangements between local authorities and health bodies under clause 45. We have some doubts about how the arrangements will work, but as long as they are voluntary, we will watch with interest and hope that they succeed.
Clause 46 provides the power to force the arrangements into existence against the will of either of the parties. Many people will question the workability of compulsory care trusts or directed partnership arrangements. I think that the Minister would accept that the concept of a directed partnership is internally contradictory: either people work together in a partnership or they do not. It will be especially important that we scrutinise the circumstances and the situation in which arrangements are made by direction of the Secretary of State under the clause.
The one justification that the Minister has put forward, which on the face of it is valid, is that this provision is about delivering services to service users. When the services fail, the service user must be protected. The Minister claims that it is not a matter of protecting the ego or the self-importance of any particular body, but of ensuring that the services are delivered effectively and efficiently. Surely, if the Government are abolishing one set of statutory patient representative mechanisms and putting in place another set, there should be an explicit requirement in the clause for consultation with whatever statutory representative bodies are in place when the clause comes into effect.
Amendment No. 305 has been deliberately phrased to accommodate the fact that we do not know the timescale for the coming into force of the different parts of the Bill. It is possible that the community health councils will be the statutory representative bodies when this part of the Bill comes into force, and will subsequently be replaced by patients forums and the other mechanisms that the Bill introduces.
Serious issues will arise if the Secretary of State uses his powers to direct a local authority to surrender its powers to him. The justification for the use of such powers will be the failure to deliver adequate services locally, and it will have to be a stark and obvious failure. If the statutory patient representative bodies are to have any meaningful function, they must be involved under such circumstances.
The Minister will no doubt say that there are powers in the Bill to make regulations specifying how things are to be done. He will no doubt assure us that those regulations will include arrangements for consultation. Later, I will say something about the Minister's assurances, and how much value we may attribute to them. Clause 46 allows for the compulsory transfer of power from one body to another at the instigation of the Secretary of State, on the grounds that patients' interests are seriously affected. I hope that the Minister accepts that there should be an explicit requirement in the Bill for consultation with statutory bodies of patients' representatives before any such transfer occurs.
Amendment No. 297 is designed to probe the Minister on the role of local authority best value in establishing whether or not a service is failing, which could trigger the exercise of the powers in the clause. When will a best value regime be introduced into the NHS? I understand that guidance on best value in the NHS is being produced. It would be useful to know when it will be published. Clearly, the closer the two regimes are, the better they can be married together in the context of a care trust. It would be useful if the Minister could say something about that, and if he could deal with the question that I posed earlier concerning the arbiter. Will he say more about who will appoint the arbiter, and what the arbiter's role will be? What powers will he or she have to resolve the question of what functions are transferred?
Amendments Nos. 292 and 305 would require consultation with statutory local patient representatives before either the Secretary of State or the National Assembly for Wales made an order for a care trust to be established. Amendment No. 297, tabled by the Liberal Democrats, concerns the duty to require a best value review before making a direction to use a partnership arrangement.
If the hon. Member for Runnymede and Weybridge carries on like this, he will make my job much easier for me. If he anticipates my response, perhaps I do not actually have to make it. That would save us all a lot of time. He rather ungraciously thought that he should question my assurances on the clause before he had heard them. That was uncharacteristically unkind of the hon. Gentleman. I hope to reassure him. We need to be clear about all the relevant matters.
The clause is about ensuring that action can be taken on services that have patently failed, presenting a risk to vulnerable people—adults or children. Of course we want to be as open as possible about the action that is being considered. We want to be able to include users and carers in making decisions about the services that they depend on. We need to talk to people as soon as we can about the intentions that may lead to the power of direction being used. However, throughout all those discussions we must keep in mind why we are considering intervening. The reason is to protect vulnerable people.
We will not intervene lightly, or without giving organisations an opportunity to work to improve services themselves. In fact, we expect that there will be a such clear process. However, what we are proposing will be part of an existing process. There is no question of inventing yet another new approach. We will use existing mechanisms such as performance management, monitoring, reviews, inspection and intervention powers, to give the Secretary of State another option with respect to the use of partnership arrangements.
Clearly, however, where patient or client safety is a matter of immediate concern, action might need to be taken more swiftly. Or, indeed, as the situation developed, advice was provided and the underlying causes in the failure of services were identified, the Secretary of State or the National Assembly for Wales might consider other models of intervention under best value or through the modernisation agency. The power is therefore not intended to replace current performance management or intervention powers but as an additional tool, where appropriate.
As to amendment No. 305, representatives of statutory representative bodies will be closely involved in considering and implementing the directed partnership
arrangements. Therefore there will be an opportunity to comment on what is intended, and their views, together with those of others, will be taken into consideration before the final decisions are made. I have made it clear in other statements to the Committee that the more we listen to users and users' representatives about the best approach, the more likely we are to get our proposals right, and the more likely we are to be able to respond to their needs.
Amendment No. 297 relates to best value. The power that we want to introduce does not interfere with other responsibilities of the relevant bodies, including the duty of best value placed on local government by the Local Government Act 1999. Local authorities are of course required through best value reviews to improve their services. Those who do that well and in the spirit of the legislation have nothing to fear from the clause, because they will be acting in the best interests of the users and the local community. Best value is intended to improve services. Our power of direction is aimed at doing the same when there is a need to intervene.
We have considered the impact on the authority's best value duty in circumstances in which a social services function was found to be failing. The Local Government Act 1999 is clear. Where there is failure local authorities can be inspected, rather than carrying out their own best value review. The power of direction will be used when there is clear evidence of a need for the use of the partnership arrangements. The services will have been inspected and we might need to act. We would not be able to wait in the wings for the completion of a lengthy process that could be a stalling tactic. Our concern at that point would be the needs of users and carers. I agree with the hon. Member for Sutton and Cheam that the duty of best value needs to be fulfilled. The power of direction will be used in the context of the powers that relate to best value. A best value review at the point in question would not help and might delay and confuse the issue.
The hon. Member for Runnymede and Weybridge referred to the Secretary of State's power to make regulations governing the use of his powers under clause 46. I do not want to add to what I said in relation to clause 45 and the amendments. We expect a proper opportunity to exist for effective consultation of local groups on the use of the powers. That is how we intend the procedures to be used and activated. I am sure that the hon. Gentleman will understand that we may need in some circumstances to act quickly and decisively. The rationale of the clause is the interests of those who use social services and of national health service patients. We must serve their interests always. We expect consultation to be an essential part of the process.
We will have to set out some of the details of this in the guidance and regulations that we intend to use. I knew that the hon. Gentleman would not like that. We will certainly not be hatching our own proposals in Richmond house. We want to discuss the details of this provision very closely with the Local Government Association, the Audit Commission and others to make sure that we get it right. The role of the arbiter, therefore, will have to be developed. We want him particularly to help us to determine the amount of resource transfer that might be necessary where agreement cannot be reached between the parties. The hon. Gentleman will accept that that is a difficult area and that we want to make sure that the arrangements we put in place for dealing with the issue are sensible and fair to all the parties involved.
For the reasons I have tried to set out, I would advise my hon. Friends not to accept the amendments.
I listened carefully to what the Minister said and, as I anticipated, he has indicated that, under regulations that the Committee obviously does not have the benefit of scrutinising, it is his intention to ensure that in normal circumstances there will be the type of consultation that we are discussing. If the Minister is right in saying that the clause 46 option would be pursued only in extreme circumstance and as a last resort, he should expect the conclusion of that consultation to be pretty much a foregone one. He would probably expect the Secretary of State to intervene and instigate the process only in response to representations from patient representative bodies. Indeed, if patient representative bodies have not noticed the problems in service delivery, it has to be questionable as to whether those problems exist.
The hon. Gentleman is trying to have his cake and eat it. He wants consultation and he now realises that there will be consultation. However, he is unhappy that, in his view, it will almost invariably support the conclusion that a care trust should be set up. That is a rather unreasonable position.
To quote the Minister back at himself, he is being slightly ungracious. I was going on to say that that is fine and, as far as it goes, it is reassuring. We would then have had the usual complaint that we would have preferred the provision to have been included in the Bill. I still fail to understand why it is not possible to put a reference to measures that the Government seem to take as read—such as consultation—into the Bill.
I was slightly alarmed, however, to hear that the Minister would not rule out an alternative scenario where there had to be an emergency intervention. In that situation, the Secretary of State would need to intervene without going through the due consultation process because of some urgency. The Secretary of State already has considerable powers of intervention where the safety of patients or of people receiving social care is at stake and it is necessary to act quickly. Indeed, in the past three years there have been examples of failing social service providers and on each occasion the Government intervened rapidly to ensure that a situation that was potentially dangerous or seriously disadvantageous to patients or users of services was contained and addressed in an appropriate way. The Government do, therefore, have powers to intervene in an emergency.
I am not sure whether it would be appropriate in an emergency for the Government to intervene using the powers under clause 46 to create what is intended to be an on-going and continuing situation—a care trust or a directed partnership arrangement. By definition, anything that is intended to endure into the longer term needs to be carefully thought out and worked up as a scheme, rather than imposed in the heat of the moment in reaction to some urgency. We are concerned that Governments are sometimes under political or media pressure to be seen to be doing something in response to a particular event—perhaps one that shocks the public and attracts the interest of the media. Sadly, only in the last week there was an example of an event that was particular shocking and demanded a response. However, we are now beginning to ask ourselves whether the response might deliver more problems in the future than were anticipated at the time.
Whenever Conservative Members are tempted to reach for legislative solutions, we have a habit of saying to each other ``dangerous dogs'' as a reminder that legislation that is entered into rapidly may not always prove to be the best thought-out and most effective legislation in practice.
We have concern that this route would be followed, as a result of press pressure and public opinion, in order to be seen to be doing something in reaction to a particular problem. I would be dismayed if the Government were to use the provisions in clause 46 without the proper consultation with statutory bodies on the grounds of urgency when the Secretary of State has plenty of other powers to intervene urgently. It is wholly inappropriate to create long-term structures on the back of an envelope, as it were, in response to pressure to act immediately.
I was reassured by what I take to be the 99 per cent case—the Minister's assurance that in the normal course of events there would be a proper consultation before any action was taken. As I said earlier, if services were really failing, I take it as read that the statutory representative bodies would support action being taken. I have already said that we intend to oppose clause 46 on stand part, therefore, there is no point in pursuing the amendment further in the light of what the Minister has said. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
I beg to move amendment No. 265, in page 40, leave out lines 22 to 24 and insert
`considers would, if exercised under or in accordance with the arrangements in question, be likely to contribute to an improvement in the exercise of the function referred to in paragraph (a).'
The purpose of amendment No. 265 is to clarify the intention behind using the intervention powers that are designed to improve a service that is actually failing. Our intention is to improve services that failed users. This is clear and unequivocal and a proper role for Government. We want to make that very clear in the wording of the Bill and that is what the amendment is designed to do. I hope that it will reassure some organisations that have expressed concern that the Bill as currently drafted will allow a range of other local authority functions to be drawn within the powers under clause 46.
In moving this amendment, our aim will be to improve the services that have failed and to ensure that other functions are included in the delegation only if they can contribute to the improvement of the failing service. Let us be clear that it does not mean that failing to deliver an orange badge scheme, for example, will lead to social services being stripped away—as some wilder speculation has suggested. The orange badge scheme is not even a social services function, and so could not even trigger the intervention powers in the first place. The amendment is designed to clarify the Government's intentions and to make it quite clear what functions could be covered by the scope of an order under clause 46.
Amendment agreed to.
Question proposed, That the clause, as amended, stand part of the Bill.
I am sorry to disappoint the Government Whip if he thought we were going to get through clause 46 before lunch, but I am afraid that I need to raise some issues.
As has already been well-rehearsed, the jury is out on the concept of care trusts, but we are broadly supportive of it as long as the initial schemes are properly evaluated and decisions to proceed are made on the basis of the evidence available and are entered into voluntarily. These partnership arrangements depend essentially on people working together and people cannot be coerced into working together.
Clause 45 stands in sharp contrast to clause 46 where the Government—
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.