I beg to move amendment No. 431, in
schedule 5, page 110, line 35, at end insert—
The director of children's rights is a post currently established within the National Care Standards Commission which, it is proposed, will be replicated in the arrangements for the new Commission for Social Care Inspection. I hope to explore the Government's thinking about the director's relationship with CHAI, as there is a question mark over the transitional and long-term arrangements for the director's locus in relation to health care services, both in the NHS and, as things stand, in the private health care sector.
The Bill does not specifically provide for CHAI to consult the director of children's rights. It could be said that clause 49, which provides for CHAI to be concerned with
''the need to safeguard and promote the rights and welfare of children'', will address that issue. However, I urge the Government to think further and to take on board the opinion of many that the director of children's rights has proved to be an effective office in the NCSC. As a statutory body, the director is able to deal with issues that an employee of the organisation, who does not have a statutory position, does not always find it easy
to address. It is more difficult for employees to cut through the issues and to resolve problems to make progress on children's rights.
I hope that the Minister will not simply tell us that clause 116 will provide for that. It deals with issues relating to health care, audit inspection and co-operation with CSCI to ensure that the two bodies are discharging their functions in a way that is compatible and supportive of one another. However, it does not specifically address my concerns.
The directorship has existed on a statutory basis since the Care Standards Act 2000 established the NCSC. The post has helped to provide a clear and welcome focus for children's rights issues. As we move to other parts of the Bill, I shall talk about responsibilities in respect of vulnerable adults. I am concerned that because the Government are rearranging the architecture of regulation, they are moving the responsibility for regulating private health care from the NCSC to CHAI. At the moment, the NCSC is responsible for regulating health care in the private, independent and voluntary sectors. As a result, the director of children's rights can, within the commission, involve himself directly in the development of standards and services, and in the regulation of those services.
I am concerned, for example, about children's hospices, which will transfer to CHAI. The current director is visiting and consulting parents, children and providers before making proposals to develop child welfare standards. However, when the responsibility for regulating hospices transfers to CHAI, the director will no longer have a locus or an automatic right to express an opinion. In the amendment, we seek to include in the Bill something that is more than just a voluntary arrangement between the two commissions, by requiring CHAI to consult the director of children's rights and to ''have regard to'' his views.
The Committee has already discussed the meaning of the phrase ''have regard to'', and its use in the amendment does not mean that it would be mandatory for CHAI to follow the director's views. It would, however, mean that a dialogue would take place, that the director of children's rights would not be overlooked and that he could assert his right to be consulted by CHAI. I hope that the Minister will be able to reassure me on that point.
One mechanism for strengthening the provision is to ascertain the views of children during consultation on inspection methods, complaints procedures, and the response to complaints, and child protection and registration requirements. One of the invaluable elements in establishing a child-focused arrangement through the appointment of the director of children's rights is that the voice of children has been taken into account in the development of regulations. I applaud the Government for doing that, but I urge them to ensure that the Bill provides for that voice to be heard in health care as well.
My final point concerns whether the Government will accept the necessity for including children's rights in both CHAI and CSCI standards. My amendment is
intended to ensure that we do not lose what we already have in the inspection of private health care and in setting standards, and that we gain something in the process—the director of children's rights having responsibility in the NHS. I look forward to hearing the Minister's response.
''consult and have regard to the advice of the Children's Rights Director.''
Hon. Members will be aware that the post of children's rights director currently exists within the NCSC, and that the post holder has responsibility for ensuring proper protection for the rights and welfare needs of children accommodated in establishments regulated by the inspectorate and the Care Standards Act.
Hon. Members will also know that we intend the children's rights director to continue to perform that role, with respect to those responsibilities formerly exercised by the NCSC, under the new arrangements. We will not create a parallel post in CHAI, because the private and voluntary health care functions of the NCSC which will transfer to CHAI are not large enough to justify that role. However, as the hon. Gentleman indicated, the Bill provides wide-ranging powers to enable close co-operation between CHAI and the CSCI. That would allow CHAI, if it wished and the CSCI agreed, to ask the children's rights director to provide it with assistance and expertise in this area. The co-operation duty in the Bill is designed to accommodate circumstances such as those.
CHAI already has a duty relating to children and has to be particularly concerned about the need to safeguard and promote the rights and welfare of children when carrying out its functions. To specify how it should do that is perhaps a step too far. It clearly takes that responsibility very seriously. Effectively specifying one particular way that it should discharge that duty could mean that CHAI was unable to develop better or alternative ways of meeting its responsibility to promote the rights and welfare of children.
I am familiar with some of the lines of argument that the Under-Secretary is deploying against the amendment. Could he think about two things? First, will he give the Committee an undertaking that he will seek to prescribe under clause 116(2) that the children's rights director will be consulted by CHAI in discharging its responsibilities to safeguard and promote the welfare of children? Secondly, will he accept that stipulating in the Bill that such consultation should take place and that CHAI should have regard to the views expressed does not prevent it from of seeking the views and opinions of children in other ways to ensure that its services reflect their needs?
I am keen to enable flexibility for CHAI in exercising those functions. I will think about that and return to the point later if I may. Flexibility is key, given that CHAI has that general duty. The
children's rights director is one mechanism by which it can exercise that flexibility. The fact that it has the wider duty of co-operation means that it will have to make steps in that direction.
The Under-Secretary is being very helpful in establishing the grounds on which the issue can be explored later in the Bill. Given his desire to establish the maximum flexibility, why does he regard it as necessary to retain a children's rights director?
Clearly, having a children's rights director in CSCI is fundamental in view of its remit to deal with vulnerable children. The whole of the social care inspectorate has had that requirement for many years. The health care inspectorate deals with children with differing needs and responsibilities, which is why it has a duty in terms of welfare to children. The development of a children's rights director within the social care inspectorate has a long history. The hon. Gentleman will be aware of a number of reports into social care. There is a different context in the health care remit, and it would be too prescriptive to lay out how CHAI should achieve that duty in the health care setting. The obligation to co-operate with CSCI is sufficient, particularly with regard to the vulnerable children who may well be in the health care sector. I hope that that deals with the point.
I am sure that CHAI will consult all the appropriate parties, and specifically the children's rights director, but as the hon. Gentleman will be aware, that is something that we can direct. To specify the extra level of detail in the legislation is not the way to ensure that it happens. I therefore resist the amendment.
You will not be surprised to hear, Mr. Griffiths, that I am deeply disappointed by the Minister's response. The only crumb of comfort that I take from his response is the acceptance that he will go away and think about the matter. I hope that, in doing so, he will put his reflections on paper and write to Committee members detailing his conclusions.
I remain concerned that the good work begun, but not completed, in respect of hospices, long-stay hospitals and mental-health hospitals for children will not be completed because the link that is currently established through the National Care Standards Commission will be broken. To rely on a general power rather than a specific duty often turns out not to be the way to achieve the end when it comes to checking later whether such things can be made to work.
I am thinking of the issues surrounding the requirement to publish reports on boarding schools, when it was discovered that there was only a general power that could not be exercised to carry out a specific action. As a result, the National Care Standards Commission could not act. I am disappointed that the Minister is not prepared to accept the amendment, or some variant, to facilitate that important dialogue. I am not going to press the
amendment to a vote because I envisage a return to the matter on Report or in the other place. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
In many ways, this is a rerun of other debates that we have had during the Committee proceedings; namely those on clause 1 and, to a lesser degree, the debate this morning about the independence of CHAI and CSCI. As in earlier amendments, we are seeking to strengthen and make unequivocal the independence of those bodies, and the amendments would remove the powers for the appointment of the chairman and members of CHAI and the commission from the Secretary of State and grant them to the Appointments Commission.
We would do that because we believe that it is a more effective and transparent way of seeking to establish the full independence of both bodies. I fear that we shall probably get the same answer, albeit from a different Minister, as to why the amendments are unnecessary, as we did in earlier debates. Notwithstanding that fact, I should like to place on record that we still believe that the Appointments Commission is the better body to make such appointments.
I should also be interested if the Under-Secretary explained to the Committee something related to schedule 5(3)(1)(b). He will see that in sub-paragraph (1)(a) that the chairman is appointed by the Secretary of State and in (1)(c) that other members are appointed by the Secretary of State. But sub-paragraph (1)(b) says that
''a member appointed by the Assembly who appears to the Assembly to be suited to make the interests of Wales his special care''.
I understand the Government wanting to make that provision, but when it comes to Wales, why does the Assembly make the appointment and not the First Minister or the Health Minister in the Welsh Assembly? That seems to be an anomaly. If the Government are saying that one of the commission's members should be from Wales—I am not arguing that that is wrong—and that the Assembly, not a political figure, should appoint that person, why are they not giving the same power to Parliament for the appointments applying to England?
I would accept the Minister's argument if he had said that that would be too cumbersome and that there are no procedures in the House for such appointments, which is why it is preferable to give responsibility to the Appointments Commission. The Government set it up following widespread criticism—not only from
Opposition Members of Parliament, but from independent outside bodies—that the health service in England is being packed with new Labour placepeople at all levels. The statistics following one independent inquiry showed unequivocally that the best passport to a position on an NHS trust, health authority board and so on was to be a new Labour placeperson. Even the Government agreed that to try to neutralise that criticism, they would have an independent appointments board.
I am frequently educated and occasionally entertained in this Committee, but I have not heard of an independent commission saying that membership of new Labour passported people instantly to such bodies. Would it be possible to have a copy of that independent report? I would be fascinated to read it and I want to know where I went wrong.
I am grateful to the hon. Gentleman because, despite his bonhomie, he is quite a sharp cookie. I hope that I have not ruined his career. He does not usually dig himself into a hole. I shall, with pleasure, provide a copy of the report—Ministers will know what I am talking about—and I would give him the name of the chairperson now if I could remember and pronounce it. Her Christian name is Rennie.
Rennie Fritchie. From memory, that report showed that during the time period that she surveyed, just over 25 per cent. of those appointed to NHS bodies who had declared on the form a political activity in the previous five years were members of the Labour party, 5.6 per cent. were members of the Liberal Democrats and 4.6 per cent. were members of the Conservative party. Before any hon. Members ask the obvious question, because their memory of spin prior to 1997 will probably still be with them, the last time that was done during the last year of the previous Conservative Government the corresponding figures were 7.6 per cent. Conservative party, 6.8 per cent. Labour party and around 2 per cent. Liberal Democrats.
Surely the hon. Gentleman has proved that one way in which to guarantee a place on a quango is to be one of the 57.5 per cent. who are not members of any political party.
That is evident, but the indisputable evidence from the independent report shows that just over 25 per cent. of those given political appointments who declared a political preference happened to be members of the Labour party.—[Interruption.] I want to make progress and it is not appropriate for the Secretary of State's Parliamentary Private Secretary, the hon. Member for Weaver Vale (Mr. Hall), to intervene. It is a tradition, unless the Government have changed the code of conduct for Parliamentary Private Secretaries, that they do not speak on the Floor of the House or in Committee on the subject for which their master is responsible.
Let me return to the point that I was making before that interruption. Even this Government were shamed into meeting public opinion and setting up the independent Appointments Commission. Although in certain areas it may still be finding its feet in its operations, it is a preferable body to make the appointments—appointments that could, at times, be sensitive—so that the Government of the day can say, quite rightly, that the appointments were made free of political interference. That will strengthen and enhance the credibility and integrity of the bodies themselves. For that reason, I hope that the Minister will be more amenable to accepting a sensible and helpful recommendation from the Opposition.
The amendments would give new powers to the NHS Appointments Commission, ostensibly to ensure that the appointments procedure was sufficiently independent of Government. However, the amendments are not necessary or desirable, because existing provisions allow for the independence of the process. In some cases, the amendments would be highly undesirable or technically unworkable.
Under amendments Nos. 190, 191 and 192, the NHS Appointments Commission, rather than the Secretary of State, would appoint the chairman and members of CHAI and CSCI. However, we should not place the responsibility for the appointments process in the hands of the NHS Appointments Commission under the Bill, because the Secretary of State has ultimate legal and parliamentary responsibility for the commissions and the work that they do—they are special health authorities—whereas clearly the NHS Appointments Commission does not. It is fully appropriate that the Secretary of State should ultimately have the corresponding legal power in the Bill to make appointments to the commissions, so that we have full parliamentary accountability through the Appointments Commission.
The Under-Secretary said that the bodies were special health authorities; I thought that they were non-departmental public bodies. I just want clarification of what he was referring to in case I misheard.
I shall come back to the hon. Gentleman on that point if I have made an error. My understanding was that the Appointments Commission was a special health authority, but it may be—[Interruption.] It looks like I am right and the hon. Gentleman misunderstood me; it is a special health authority.
To continue, the fact that we have not delegated the appointments process under this clause does not reflect any sinister attempt by the Government not to delegate the power. The power to delegate the appointments process to the NHS Appointments Commission is provided in clause 168.
As I think I said earlier, it is more or less standard practice—for the benefit of the hon. Gentleman, I should say that it is standard practice—for the Secretary of State, who brought the measure into being, to appoint people to the NHS as a national body through the auspices of the Appointments Commission. We have made it clear that clause 168 allows him to continue that process. The appointments to CHAI and CSCI are through the auspices of the Appointments Commission but the Secretary of State must be accountable to Parliament for the way in which those bodies exercise their functions.
Let us suppose that in time the hon. Gentleman took issue with an appointment to the new inspectorate and was concerned because there was a serious and unacceptable conflict of interest. He would be able to raise the matter in the House and the Secretary of State would be held to account for it. That must be right. However, it does not indicate a sinister practice.
The policy intention is clear; the Secretary of State will delegate to a special health authority to make these appointments. Why not put the policy intention in the Bill to make it clear that the Secretary of State shall, will or must delegate? In that way the Secretary of State's statutory responsibilities and his accountability to Parliament will be protected and so will the bodies' independence, because they are appointed by a separate entity.
I have already addressed that point. The Secretary of State brought the policy into being; he exercises his function across the NHS on a day-to-day basis in our constituencies—
The Under-Secretary is a lawyer by training, which I do not hold against him as it could be helpful now. I am not a lawyer; clause 168 contains ''mays'' and ''ifs''. If a Secretary of State did not want to refer appointments to a special health authority, in theory could he make the appointments himself under the powers in clause 168 if he were minded to do so?
The hon. Gentleman reminds me that I am a lawyer and in order to address the Committee's concerns I must employ some technicality. I am advised that technically, if the Secretary of State is obliged to delegate the powers to a special health authority—unfortunately, jargon is rife in the NHS—he is obliged to create a suitable special health authority; in this case, the NHS Appointments Commission. Section 11 of the National Health Service Act 1977 gives the Secretary of State discretion to create a special health authority. Therefore, for legislative consistency, the definition demands ''may''.
If hon. Members want further clarification, I shall be happy to provide it subsequently, but that is what I am advised.
In clarifying the point and, I hope, clarifying it in writing later, will the Under-Secretary make sure that the Committee understands the purpose of clause 168, which deals with the matter that he is addressing? Clause 168(1) stipulates that a special health authority may make appointments to a body with functions relating to health, social care or
''the regulation of professions associated with health or social care'', but does not make it clear that regulatory bodies such as CSCI and CHAI would be covered by that. Can the Under-Secretary point to somewhere in the Bill where that is specifically stipulated, so that the concerns about the schedule are properly addressed?
I am not sure that I understand the hon. Gentleman's point, because clearly health and social care are related. CHAI is concerned with health and CSCI with social care. I should have thought that the definition meets the hon. Gentleman's concerns about clause 168. However, I can provide that clarification in the further advice that I give the Committee.
May I repeat my earlier intervention because, despite what the Under-Secretary read out, I was genuinely not sure whether he had answered it? What I am trying to find out, in easily understood English, is this; if a Secretary of State were minded, for whatever reason, to appoint a chairman or members of a body himself, rather than use the powers in clause 168, could he in theory do so?
As I have said, the Secretary of State has shown his intention by his past practice, which he undertakes in the NHS every day. His decision to delegate his powers of appointment in the NHS was a bold and contentious decision at the time. Such a decision was never made by the former Administration, who kept all the powers to themselves.
The Under-Secretary cannot get away with that. The straightforward reason why this Secretary of State did it was that there was so much criticism, including an independent report, about the fact that the Government were packing bodies with Labour placepeople. The Under-Secretary keeps saying ''this Secretary of State''. I do not disagree with him; this Secretary of State has made the decision, but this Secretary of State will not always be the Secretary of State for Health. He may not be there in a week or two.
As I said, the Secretary of State chose the power to delegate the Appointments Commission and to do it through the auspices of a special health authority. In a sense, clause 168 reflects that power in relation to the new social care inspectorate. The question is what the operational practice of the Secretary of State and the Department of Health is, and the fact is that we delegate. The hon. Gentleman asked whether the Secretary of State could keep such powers to himself. The answer is yes, he could, but the current Secretary of State has said clearly that the powers should be delegated.
On an issue as important as the inspectorate for health and social care, the Secretary of State's clear intention is for the relevant powers to be delegated and for appointments to be made through the NHS Appointments Commission. Hon. Members therefore do not have any reason to doubt the Government's intention on the matter. With the assurances that I have given, I hope that the hon. Gentleman will see fit to withdraw the amendment.
Despite what the Under-Secretary says, I am not convinced in one respect. I have no doubts about the assurances that he has given; to be fair to him, I noted that he said that the provisions will apply to the current Secretary of State. I do not in any way criticise the Under-Secretary in relation to that and probably agree with him, in that I think that the current Secretary of State is more than content to use the legislation that he and his Department have produced.
However, the current Secretary of State will not be in power for the rest of his parliamentary career and one never knows who may come after him, just as one can never say never in politics. There may be a Secretary of State in future who does not agree with the current Secretary of State's decisions. As the Under-Secretary has himself admitted, clause 168 is permissive, but not binding; it allows the Secretary of State, if so minded, to pass on the appointments to an independent body, but he does not have to.
There may be a Secretary of State in the future who, for whatever reason, decides that he or she will make the appointments. That is not satisfactory. I shall not press the amendment to a Division now, because I should like to have an opportunity to read again with care what the Minister has just said. I should like to reserve our position so that we may possibly come back to the issue, either later in this place or in another place. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
I beg to move amendment No. 339, in
schedule 5, page 111, line 30, after 'Secretary of State', insert
'(or, in the case of a person appointed under subparagraph (1)(b), the Assembly)'.
This is a technical amendment to make it clear that any regulations that the Secretary of State may make in relation to the suspension of the chairman or other members of CHAI will cover both those whom the
Secretary of State has appointed and the member to be appointed by the National Assembly for Wales, who will represent the best interests of Wales in that regard.
As we have discussed this morning, we have made clear our intention to delegate the appointment and, should the need ever arise, the removal from office of a person appointed to the NHS Appointments Commission. However, in order that that be done, the relevant powers must first be provided to both my right hon. Friend the Secretary of State and to the Assembly.
Having listened to the Under-Secretary, I take him at his word that the amendment is technical, so I do not intend to debate the issue for long.
I should like to remind the Ministers that we are 50 per cent. of the way through the Committee; this is our 11th out of 22 sittings. Several parts of the Bill will be enacted by regulation, particularly those towards the tail end of the Bill and those concerning dentistry. At the beginning of our first sitting, we asked the Government on a point of order that if they could not provide draft regulations showing their intentions, which would allow us to discuss those parts of the Bill more adequately, they could supply notes on what they were hoping to do. It seems an appropriate opportunity to deal with this point now as we are discussing regulations.
I do not think that I am misrepresenting the Minister of State, who said that he would do all that he could to supply us with such information if it were feasible. I want to flag up again that we have had no information. I am making no criticism, but we would appreciate receiving that information before we reach the relevant parts of the Bill.
I hear what the hon. Gentleman says, and I shall do all that I can to facilitate that. He will understand that this amendment is only small and technical.
Amendment agreed to.
These are also technical amendments, which amend paragraphs 5(1) of schedules 5 and 6. Those paragraphs provide for the appointment of chief executives of CHAI and CSCI. As currently drafted, the provisions state that the chief executive of each organisation
''is to be responsible to it for the general exercise of its functions.''
We are concerned that that unintentionally gives the impression that the chief executive is solely responsible for the exercise of the organisation's functions, as we want to give it the discretion to decide how the respective responsibility of chair, chief executive and commissioners should be divided. The amendments delete the relevant parts of paragraphs 5(1) of schedules 5 and 6 to avoid any such misunderstanding.
I understand the need to tidy up the paragraph to ensure that there is no misunderstanding about the responsibilities of senior management, but how will the amendments change the relationship between the chief executive and the chair of the body? They must obviously work closely in tandem to ensure that the whole system works, and they will have many shared responsibilities, although each will have unique responsibilities by definition of his or her position.
Will the Under-Secretary share his views on that? As in many walks of life, it is critical for the two top people to be the right people, as that greatly enhances the success of the body. If they are out of synch or not up to the job, it adversely affects the impact and performance of the body.
There is a concern that the amendments may create a situation in which non-executive members of the commission—particularly the chair—would be able to discharge executive functions. A tension could be created between the chief officer and chief members of the commission. The Under-Secretary suggested that there was some doubt about where the responsibility lies and said that the amendments would remove—
It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.
Adjourned till this day at half-past Two o'clock.