This is one of about five affirmative resolution clauses in the Bill, and it concerns the regulated activity with which we must now be concerned as we move on to consideration of chapter 2. The Committee must effectively have another meta-debate on this clause, if I can put it that way, given that the real meat will be in the regulations. Clause 90 tells us that
“‘prescribed’ means prescribed by regulations” made by the Secretary of State. The clause also defines the geographical scope of regulations—England, mainly.
While both the Commission for Social Care Inspection and the Healthcare Commission cover England alone, as the Minister has just mentioned, the Mental Health Act Commission currently oversees the operation of the Mental Health Act 1983 in England and Wales. It was appropriate for us to raise the point about Wales in the previous debate, because it was covered by schedule 2, but I noted—and it is relevant to the present matter too—that the Minister has undertaken to return to some of the points that were raised, both in writing, which is very helpful, and when we come to debate further clauses and amendments.
The Bill gives the functions of the MHAC pertaining to England to the CQC and those pertaining to Wales to Welsh Ministers. Subsection (2)(a) limits the scope of the CQC to England alone. The Minister has just made a commitment that he will seek to help the Committee as much as he can. What assessment has he made of the division of staff and intellectual property arising from that split? I hope that, as he and his officials are noting the process of these inquiries, the intellectual property rights will also be given proper consideration. They are an asset that is often overlooked but absolutely vital. Coming from a commercial background, I can say that intellectual property rights are often used most of the time in any transfer negotiation by way of friendly or hostile purchase.
Subject to the following provisions of clause 157, the Bill extends to both England and Wales. I hope that the Minister will have checked by the time we reach that clause that there is no conflict in the drafting. I put it no higher than that, but it is certainly worth checking.
Clause 4(2)(a) limits prescribed activities to those connected to health or social care—the definition of which we will debate under clause 5—
“in, or in relation to, England”.
Can the Minister tell the Committee the force of the phrase “in relation to”? As an MP whose constituency has a Welsh border and much of what is rather interestingly called “health tourism” across that border, I am interested in what protection the clause gives to my constituents who are treated and cared for in Wales—often very well, I have to say. Obviously, for many of my constituents, being treated in Wrexham Maelor hospital involves travelling a much shorter distance than would be involved in travelling even to the Countess of Chester hospital in the city of Chester.
What right of appeal, on behalf of my English constituents, does the clause give me, as their representative in the House? I have frequently attempted to ask the Secretary of State for Wales what happens if things go wrong for my constituents in a health or social care setting in Wales. He has immediately referred me to the First Minister of Wales, who has told me that I have no standing with him and he has absolutely no obligation to respond to me, and does not. Therefore, I have no way of representing my constituents through the devolved powers, which in effect create a form of devolved apartheid when it comes to accountability.
What impact will this provision have on NHS patients seeking health care abroad—I am not now talking just about going across borders within the United Kingdom—under the EU’s attempt to open up the health care market? The Minister and all his colleagues will be very conscious of the recent debate that has been had, mainly in the press, because the EU was supposed to publish draft legislation on 20 December just gone, but has delayed it until early 2008, so we are in live time. That is in the light of anger from, among others, our very own British Ministers. We await that publication with bated breath. It will be absolutely germane to this part of the Bill and the way in which the Bill can operate.
The clause also, rightly, prevents the CQC from encroaching on the role of Ofsted in the inspection of children’s services. Ofsted inspects, among others things, children’s homes and residential special schools. Can the Minister confirm that this provision will not impact on the commission’s ability to report on children and young people being treated on adult mental health wards? As he is well aware, that is a scandal that continues to persist under this Government. Given in particular the recent report on learning difficulties services published by the Healthcare Commission, what will he do to encourage close working between the two bodies in terms of service users, providers and individual staff in the sector?
I note the Minister’s genuinely helpful alert to the Committee last Thursday about joint working. He brought our attention to clause 64 and schedule 4. However, my understanding of clause 64 is that it requires the commission to promote co-ordination of reviews and assessments, not of day-to-day processes. Schedule 4 comes closer to supporting joint working in processes, although it does not require it in the same terms as clause 64. Again, I hope that that provides genuine food for thought for the Minister and his officials, because I suspect that there will be time to think about it before we get there.
In relation to clause 4(3), I hope that the Minister will give us an answer as to why he has decided to enshrine these three aspects explicitly in the Bill. It is not an exclusive definition of “connected with”, but it seems to particularise when the rest is left to more generic definition. What assessment has he made of the division of staff and intellectual property arising from the division of the MHAC? Given that the clause applies to England and Wales, should subsection (2)(a) reflect that? What does “in relation to” mean? Will Ofsted and the CQC work together? Why has he sought to define, although not exclusively, “connected with” in the terms outlined? Those are the questions that I hope he will seek to address as we consider the clause.
This may not be my job, but I slightly flinched at the hon. Gentleman’s use of the term apartheid to describe some of the complexities that have arisen from the democratic decisions taken in this country to grant devolution to Wales, but I will leave that issue with him. Apartheid, in my view, was a despicable, racist-based policy, deliberately implemented by the nationalist Government in South Africa. It is not an appropriate term to refer to these complexities.
I was born in east Africa, and therefore had to live through and survive and challenge the whole of the apartheid approach, but the Minister will be aware that the derivation of the word has nothing to do with racism. It is to do with there being two different sides of a similar issue and it was then hijacked to have a meaning in political terms, which is what he might have described. He is no better advocate than I am for being anti-apartheid in the sense that the term was used in South Africa, but I was using the term here in its genuine rather than ascribed form.
I take the hon. Gentleman’s point, but I have noticed that a number of Conservative Members use the term apartheid to describe the cross-border complexities caused by devolution. I ask him to bear in mind how the use of that term would come across to most South Africans.
The clause allows regulations to be made to define the activities that need to be registered with the Care Quality Commission. That will be carried out through regulations, so the list of regulated activities can be revised as new models of service provision evolve. This is particularly important, so I intend to spend a little time outlining it.
We want to encourage flexible and innovative ways of delivering services to be developed. I do not want the registration system to be a barrier to that. Ofsted is responsible for regulating children’s social care. To avoid the possibility of services currently registered with Ofsted having to register twice, the clause specifically excludes any services that are registered with Ofsted from the definition of “regulated activity”, but of course they will have to work closely together.
We will be consulting very soon on the activities that are to be regulated by the Care Quality Commission. We expect that most service providers currently regulated by the Healthcare Commission or the Commission for Social Care Inspection will be required to register. These would include independent sector health care providers and providers of adult social care that are currently required to register. For the first time, NHS trusts—including ambulance trusts—NHS foundation trusts, and primary care community services will also need to register. Under the current arrangements, because NHS care is regulated and inspected differently from other services, it is not always easy for patients to compare NHS services with those of other providers. It also creates a barrier to joint working and means that private providers providing some statutory services have to comply with two regimes. Creating a unified system of regulation across health and adult social care providers from all sectors will create a fairer playing field. It will also assure the general public that whichever provider they use, all services will be required to meet the same national safety and quality requirements, and will be subject to the same enforcement regime if they fail to do so.
In respect of the hon. Gentleman’s question on assets, as I said in my answer to a previous question, I will include whatever information we can give the Committee on assets in writing.
On his question about cross-border issues and the term “in relation to”, I suspect—I will confirm this in writing—that this may include examples in which the service is provided in Wales, although it is commissioned in England. That may be an example where we would have to use the phrase “in relation to English”, but I will happily confirm that in writing.