Before we begin, I remind the Committee that, if there is a Division in the Chamber, the Committee will adjourn as soon as the Division Bells are heard and will resume after 10 minutes.

Clause 2 [The Commission’s functions]:

moved Amendment No. 21:

I shall speak briefly to Amendments Nos. 71 and 88 and to endorse the excellent contribution of the noble Earl, Lord Howe. You could not get a more eloquent description of the situation and the incredible importance of the amendments.

I just want to make one point: NICE guidelines are not restricted to medical treatments. I want to refer to the NICE guidance on therapeutic treatments for depression and anxiety. Any service-user survey of people with mental health problems puts right at the top of user priorities the availability of therapeutic psychological treatments. NICE guidance was issued clearly specifying the evidence-based psychological therapies that should be available to people with depression and anxiety. The Government then committed £70 million for a three-year rollout of training across the country to ensure that the evidence-based treatment recommended by NICE would be available to people across the country.

No mental health intervention would do more for the general mental health—the well-being, if you like—of people in this country than the implementation of those NICE guidelines. Yet we are finding that it is nigh on impossible to ensure that PCTs across the country take on board the Government’s policy. If I may say so, even the strategic health authorities are producing guidance to PCTs that is all over the place. It is not consistent; it does not fully take on board the Government’s policy. Therefore, even in the information going out to PCTs there is confusion—there is basically anarchy—and I cannot imagine what will happen at the PCT level. I add my few words to those of the noble Earl, Lord Howe, in giving strong support to the amendments. I very much hope that the Government will produce their own amendment to give rise to the outcome that we want.

I give warm support to the amendment. About 35 years ago, when I was dean of the medical school in the University of Newcastle upon Tyne, I chaired a committee established to appoint a professor of clinical pharmacology. We appointed someone who was at that time the youngest professor ever appointed in the medical faculty in Newcastle—Professor Michael Rawlins. Sir Michael, as he now is, has become the distinguished chairman of NICE, and that organisation has done a wonderful job over many years in defining the cost-effectiveness of medicines and other forms of intervention in the practice of medicine. The problem has been that, although the guidance that it has produced has been extraordinarily clear, very competent and based on solid evidence, that guidance has not, as the noble Earl, Lord Howe, made clear, been implemented widely across the country.

This is not an absolutely restrictive amendment. It would be subject to Clause 2(3), which states:

“In performing its functions the Commission must have regard to”—

and here Amendment No. 21 would add—

“the need to provide equity of access to medicines and other therapeutic treatments through the consistent application of guidance and technology appraisals produced by the National Institute for Health and Clinical Excellence”.

I cannot see any way in which the Government could conceivably object to this helpful amendment. If implemented, it would, in general, help with the removal of the postcode lottery; it would assist the uptake of new medicines; it would encourage innovation; it would define the new commission’s competence in respect of NICE and external review groups; it would ensure uniformity and consistency across the country of the implementation of NICE guidance; it would help to define clearly the status of NICE guidance including technology appraisals; it would, I hope, ensure that some elements of the NICE clinical guidance were made mandatory; and it would broaden NICE’s remit to incorporate carer costs, social care services, worker productivity gains and other wider benefits and costs. These would be the major advantages of the implementation of this group of amendments, which I warmly support.

I, too, put my name to these amendments and I endorse what the noble Lord, Lord Walton, has just said. I do not often pay tribute to the Government, but I do on this occasion: NICE has been one of their great successes. It is interesting that, although NICE cannot be exactly replicated in other countries, because they do not have the same connections or sockets or whatever makes the NHS work, NICE is nevertheless now giving advice and support. Indeed, it is founding an international consultancy to help other countries. As the noble Lord said, it has done a very good job.

Of course, NICE is not universally popular; we know that. On occasion it disappoints industry or it disappoints patient groups that are fighting for the drugs that they feel their members need. NICE does not seek popularity, but it strives to make sensible judgments within the parameters in which it has to work. As my noble friend said, however, one of the drawbacks and frustrations has been the lack of implementation, of which he gave some good examples. I co-chaired the All-Party Osteoporosis Group and we heard a lot of evidence, but my noble friend has covered that. Another example is the three cycles of IVF for women who want to have a baby; that has not been implemented across the country. Then there is rheumatology and the drugs that my noble friend mentioned.

We have to be practical, though. Until fairly recently, PCTs have been strapped for cash; in my area, they still are. They have to set their priorities locally. It would be fair to the population, to patient groups and to the pharmaceutical industry if more information were to come from PCTs, when setting their priorities, if they cannot make something a high priority because they have a lot of calls on their resources. It would be better if they could tell the general public and if there were a means—we suggest that it could be through the Care Quality Commission—of saying where their priorities were and where their needs, as they see them, were to be met. On occasions when they have to introduce a drug and cannot afford it immediately because it is new and expensive and all the rest of it, they should say how long it will take to introduce it within their patch. They should say who needs that drug and how they will make an assessment according to the need. This is a plea not only for some oversight by the Care Quality Commission, as the Healthcare Commission has already taken that area pretty seriously, but for transparency. The local population should know what the different priorities are in their area.

Our pharmaceutical industry—and I declare an interest in that I am not a shareholder in it—is number one in trade surplus rankings. It is an important part of our national economy. It employs some 73,000 people. It spends £9 million every day on research and development and it has discovered 20 per cent of the world’s top medicines. For a small country, that is fantastic.

I chair the Association of Medical Research Charities. We have to be careful to avoid discouraging the pharmaceutical industry, as a result of some of our mechanisms, from investing as much in research. One of the difficulties that it faces is that it takes some 10 years to produce a new medicine. If at the end of that time that medicine is not allowed to be prescribed, there is an issue that needs resolving. There is a simple issue about the funding of the NHS for these expensive drugs. I may well be wrong, but I believe that there is a £1.8 billion surplus in the NHS. Can the Minister tell us where that money is and how it will be spent?

I support the amendment. Others have spoken with great clarity on how nice NICE is. I am a great fan, too, but this group of amendments is important on the grounds of clarity of regulation. We should be giving the Care Quality Commission the tools to enable it to improve the quality of health delivered to the nation. One of those tools is the guidance produced by NICE. That is one of the fundamental tools available to PCTs and everyone else to tell us in what direction treatment should be going. It is crucial that the Care Quality Commission should be tied into a system in which it is testing the delivery of the very best and raising standards. For that reason alone—clarity of regulation—this group of amendments is worthy of consideration.

I wish to make a few observations, but first I should declare an interest in that I was the Minister responsible for the pharmaceutical industry and NICE between 2003 and 2005, when of course everything worked perfectly in this area.

The noble Baroness, Lady Cumberlege, made an important point about the pharmaceutical industry. When NICE began—I, too, believe that it is one of the Government’s great achievements and a real success story—the pharmaceutical industry was less than thrilled with it. Part of the deal was that NICE should produce certainty. When new drugs were presented to NICE, its set of recommendations sometimes went against the industry’s interests and the industry was not always thrilled by that. But part of the deal was that, when drugs were approved, there was an expectation that the decision would be implemented and that the drugs would be used across the country.

If we are honest—and I can speak only from my experience—we must recognise that we have struggled to reconcile issues in this area. It is right that, after NICE has made its pronouncement, the drugs and, in particular, the technology appraisals should be implemented across the NHS. But we have often had thrown back at us the issue of local priority setting down at the PCT level. That argument has some legitimacy. We ended up with a situation, certainly when I was a Minister, where we wove into the standards that were produced, following the standard-setting provisions of the 2003 Act, requirements for authorities to adhere to NICE guidelines and findings on technology appraisals and on national service frameworks. For some time, the Healthcare Commission has been able to inspect against those standards in its rating of health authorities, so there is a link at the moment.

However, under Schedule 15 to the Bill, the standard-setting powers in the 2003 Act are abandoned. We will have a new set of standard-setting provisions and we will need to see what those are at some time in the future. For all I know, the Government may proceed with the same set of standards or amend them in some way. The standards provide for the current commission to inspect against NICE guidelines and to have some expectation of the guidance being implemented.

This is not an easy area. There is great strength in the amendments on standards and on functions but, before we get too carried away, it is worth dealing with the issue of the cost of implementing NICE guidelines. One of the factors taken into account in bunching a group of referrals to NICE is what the cost is ultimately likely to be for the NHS and how that relates to the totality of the budget. NICE guidelines and technology appraisals up to the end of 2007-08 have cost about £1.5 billion. However, we are spending more than £10 billion a year on pharmaceuticals of one kind or another, so the NICE recommendations are a relatively small part of the total spend. We should be a little cautious about feeling too sorry for local PCTs that say that they cannot afford to do the job. Given the amount of money that has gone into the NHS in recent years, we should not be overly sympathetic about that.

There is an issue about how we can make the system work more effectively. The provisions in the Bill may help, but we will still need to truck away on these issues, as we have been doing for the past few years.

The noble Lord, Lord Warner, is an experienced hand in these matters and his words are wise and worthy of careful study. It is now sensible to investigate again a number of issues around NICE and its costs and I think that the Care Quality Commission will be in a good position to enable that to be done. I commend the creativity of the noble Earl, Lord Howe, in tabling this amendment, which I think is irresistible in relation to the commission’s functions.

My interest in pharmaceutical matters started when I was trained as a graduate at Heriot-Watt pharmacy school. I spent my summer vacations making industrial-scale chemicals for Boots the Chemist; I became an expert in the industrial-scale manufacture of suppositories, which I fear is likely to be put on my tombstone. In the context of the quality of healthcare, my stints behind the dispensary desk at Boots in Shandwick Place in Edinburgh suggested to me that there is considerable confusion about the route of administration for suppositories; perhaps the Care Quality Commission could look at that as a matter of urgency.

We had some high-quality debates yesterday in Committee. The weight of influence and experience in Committee is rooted in the care side, but this set of amendments is equally important. The noble Lord, Lord Warner, and the noble Baroness, Lady Cumberlege, are right to talk about the pharmaceutical sector and, indeed, the health service itself.

If I am interested in anything, it is in trying to get people off benefits and into work. When one goes around sister European nations and, in particular, America, one realises that the jewel in the crown of what is available to us in the United Kingdom is universal free healthcare, because it does not provide a disincentive from getting into work. In America, if you try to tempt people away from benefits into work, the block is always that they say that they cannot pay for their healthcare. We should celebrate what the health service does. Of course it can be improved; in my view, this Bill goes some way towards doing that.

Incidentally, it is not just the pharmaceutical industry that is a key sector for the Government in relation to skills upgrading and working in a global economy more successfully. In the United Kingdom, we are developing a professional grade of regulator—the people who do this stuff and do it well—that is beginning to become world renowned. I am talking about the quality of those people’s work and the systems that they use.

[The Sitting was suspended for a Division in the House from 4.15 to 4.25 pm.]

I was concurring with the noble Lord, Lord Warner, and the noble Baroness, Lady Cumberlege, about the quality of the NHS and, indeed, the quality of the regulators who serve the NHS. That world-class quality is something that we should be proud of and hope to develop.

Of course, it is true that, as the noble Earl, Lord Howe, mentioned in his powerful introductory remarks, equality of access and lack of consistency are the key questions here. NICE is not the only appraisal system that we have in the United Kingdom. I have already said that the value of the NHS to this country is immeasurable, but it is an NHS that has core central principles that are consistent throughout the nation states of the United Kingdom. It is an NHS that is changing and diverging, quite properly, through the devolved legislatures in Scotland and Wales. New systems are now being looked at and developed and there is a degree of constructive divergence, which I think impinges on the work of NICE.

At the outset, I echo noble Lords’ words in saying that I have a high regard for the quality of the work at NICE and for the people who carry out the multiple technology appraisals. They have established a world-class standard for doing that. I do no want to go into too much detail, but noble Lords may know that in Scotland we have the Scottish Medicines Consortium, which does things differently, and in Wales there is the All Wales Medicines Strategy Group. These three different systems are rotating and operating together, but I think that it is now time that we had another look at how they are all gelling—if, indeed, they are all gelling—where the gaps lie and how those gaps can be addressed.

Noble Lords probably all know that NICE deals only with the medicines, techniques and procedures that are referred to it—that is, something like 20 per cent of the new medicines that come on stream. Therefore, 80 per cent of medicines are left outside the NICE appraisal net. NICE has done roughly 130 appraisals since it was set up in 1999, but multiple technology appraisals take nearly two years on average to complete and cost a quarter of a million pounds each. By definition, the scrupulous way in which NICE carries out those appraisals means that there are pressures in the system.

I can illustrate that very easily. There is a drug called Alimta that deals with mesothelioma. It is a single medicine in its class; it is the only one available. I had better be careful that I do not sound as though I am being Scottish and triumphalist about this because that is not the case. I am talking about different systems and I understand perfectly well that NICE is a different system from the Scottish Medicines Consortium. They have evolved from different backgrounds, so I am not saying that one is right and one is wrong. However, Alimta was available to the ship workers at Rosyth who were clearing out some of the ships that the Royal Navy was decommissioning and who had been exposed to asbestos for many years. They had access to that drug in July 2005. On the other hand, the ship workers in the shipyards in Southampton got access to Alimta only earlier this month after NICE had taken nearly 1,000 days to appraise it. That cannot be right and it must be a matter of concern to the Government.

Following the noble Lord, Lord Kirkwood, who is an expert in making suppositories, I must declare an interest because I use them. I use two every second day, which is a very important part of my life. I just want to say in support of this important amendment that, if we can do away with the postcode lottery, many people throughout the country will be greatly relieved.

As the noble Earl, Lord Howe, outlined in his opening and powerfully argued remarks, which of course I take very seriously, the amendments all in some way seek to ensure that the importance of guidance and technology appraisals produced by the National Institute for Health and Clinical Excellence is explicit in the Bill.

The Government established NICE nine years ago to provide independent, authoritative advice to the NHS on the clinical effectiveness and the cost-effectiveness of new and existing treatments and, by doing so, to help to tackle variations in prescribing practice, as has been ably described by my noble friend Lord Warner. As mentioned by the noble Lord, Lord Walton of Detchant, whom we are delighted to see here, NICE has made a great success of that challenging brief, developing an international reputation for its work and improving its performance in recent years, and remains at the heart of the Government’s plans for driving forward quality improvement in the NHS.

I know how valuable NICE guidance is in supporting evidence-based decision-making. I therefore fully understand the desire of Members of the Committee to include specific mention of material produced by NICE in the Bill and genuinely appreciate the intention to support NICE that lies behind that. However, we cannot support the amendments. I will explain why for each in turn. It is the classic situation, as the Committee will realise as I go through, of what you put in the Bill and what you put in guidance, and testing which of those we think will be most effective. At the moment, we think that the words in the guidance are the most effective way.

Amendment No. 21 would amend Clause 2 to require the new commission in everything it did to have regard to the consistent application of NICE’s technological appraisals and other guidance as a means of providing equity of access to treatments and medicines. NICE guidance is of course an important and authoritative source of advice for the NHS on issues of clinical effectiveness and cost-effectiveness. I welcome the spirit of the amendment in underlining that fact. However, the amendment is very specific and what it would prescribe is not appropriate as an overarching factor that the commission should have regard to in carrying out its work. Factors that the commission should have regard to are not intended to be a list of specific sources of advice and guidance from specific organisations.

To ensure that flexibility is maintained, the registration requirements on which we are currently consulting are the appropriate place to deal with this issue. I have ensured that a pile of these documents is available at the door and I urge noble Lords who have not read the document from cover to cover to do so. I appreciate it particularly because it is written in plain English. Indeed, our first proposed registration requirement is,

“making sure people get the care and treatment that meet their needs safely and effectively”.

The commission can take account of the relevant NICE guidance, specifically including NICE’s interventional procedures guidance, to ensure that the most appropriate treatments are being provided across all registered providers of care.

Our consultation document gives examples of how this proposed requirement is intended to work. The requirement on page 57 states:

“It will take account of NICE guidance about safety and efficacy issued through its interventional procedure programme, or other authoritative evidence-based guidance as to safety and effectiveness (where NICE guidance is not relevant), to ensure appropriate treatment is provided safely”.

Let us remind ourselves that, where registered care providers fail to meet registration requirements, the commission will be able to use the full range of its enforcement powers. This seems to be a more appropriate means to address the intention behind Amendment No. 21.

Amendment No. 71 refers to NICE guidance and technology appraisals produced by NICE in relation to standards. Standards in Clause 41 are to be used by PCTs and registered providers as brief common descriptions of aspects of healthcare quality, with the intention of informing improvement effort. I agree with the remarks of my noble friend Lord Warner and the noble Lord, Lord Kirkwood, in this respect. We want wide consultation and discussion on the detailed content of these standards. The Bill, therefore, contains a statutory requirement for these standards to be consulted on and kept under review.

Given our commitment to an open consultation on these standards, we would not want to make specific provisions in advance of the consultation process. NICE will, of course, be an important contributor to this consultation, and material produced by it is very likely to inform the development of specific standards. It is certainly not our intention to undermine NICE’s work by setting out a standards regime that is inconsistent with its guidance.

Amendment No. 88 relates to special reviews. Again, while appreciating the spirit of this amendment, I am unable to support it. Clause 44 already makes provision for the commission to carry out general service reviews, more specific reviews into particular matters and investigations into specific aspects of care. The commission will be free to take account of anything that it reasonably considers is relevant. The provisions as drafted would enable the commission to carry out reviews of the nature proposed by Amendment No. 88, which is, therefore, unnecessary.

While the noble Baroness is on that point, could she say what the timescale is for that consultation and whether the report from it will come during consideration of this Bill?

I shall let the noble Baroness and other Members of the Committee know the answer to that. While I was reading, I was asking myself, “When does this start and end?”. I do not have the answer in front of me. I apologise for that.

Amendment No. 56 would make express provision in the Bill that, when issuing its registration guidance, the commission may look at compliance with guidance issued by NICE. Therefore, this provision is not needed, because Clause 19(3) already allows the commission to refer to provisions in other documents, including those issued by other bodies.

I was struck by the wisdom of the remarks of the noble Baroness, Lady Cumberlege, but I shall have to return to her specific question. I am grateful for the opportunity that this debate has given me to clarify how the work of NICE relates to the provisions in Part 1. I welcome the support for NICE and its work. I hope that I have been able to reassure the Committee that the Government remain committed to ensuring that the work that NICE carries out remains at the heart of the future development of the provisions of the National Health Service and that noble Lords will therefore feel able not to press their amendments.

I thank all noble Lords who have taken part in this debate, which has been very good. I thank the Minister for her full answer. There was a lot that was helpful in what she said, although I confess to being disappointed that she does not feel able to build something like these amendments into the wording of the Bill. The problem with the consultation document is that, although it contains a great deal of good stuff—if I can say that—it is only a consultation and we do not yet know how much or how little of it the Government are hoping to adopt in the end.

However, it is encouraging that some noises are being made in the direction of meeting the concerns that I have been articulating. I felt that the amendments were in large measure going with the grain of the Bill and of government policy, as I know that part of that policy is that the uptake of new medicines should be encouraged and assisted. I hope that we will see flowing out of this consultation something more concrete than just a set of aspirations. I will read carefully what the Minister has said between now and Report. We may have to return to this, but in the mean time I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 21A not moved.]

moved Amendment No. 22:

I strongly support the comments that we have just heard. Unless we have genuinely independent regulation and an independent body, it will not achieve what we all hope it will. In the light of what I have just heard, and my thoughts on the amendment, I do not consider that this body will be free of interference, which is important if it is to do its job properly. I do not want to delay the Committee, as we are proceeding too slowly as it is, but I wanted to indicate my strong support for what has just been said and for the mover of the amendment.

I do not want to delay the Committee either, but my name is attached to the amendment and I want briefly to indicate my support for it. I cannot add much to what the noble Earl, Lord Howe, said, as he covered the matters comprehensively and made an exceptionally good case by referring not just to this subsection but to its impact in the context of the Bill as a whole.

I think that we all agree that we want an independent regulator. I am sure that in reply the Minister will say that she agrees with that. However, unless we can be satisfied that a regulator will emerge that can genuinely be called independent and which meets the criteria that we all recognise should be met by an independent regulator, we shall find it very difficult to support this clause, as the noble Earl, Lord Howe, said. In the context of the totality of the Bill, it knocks the nail into the regulator’s independence.

However, I make a suggestion in the spirit of trying to be helpful. I suspect that what is getting in the way here is the wording rather than the concept. As the noble Earl said, nobody would have difficulty with the notion that a regulator, even an independent one, should have regard to government policy; we are not quarrelling with the notion at the base of the clause. However, I think that what is getting in the way is the word “direct”. That is a heavy word. If the Minister could consider that and come back at a later stage with something that softens the provision a bit, I would be surprised if we could not all go forward together.

I have been trying to formulate something but have not yet completely succeeded. Instead of “direct”, I looked at “request”, although I am not sure whether that meets the case. I then wondered why the subsection could not end with “government policy”, and just state, “shall have regard to government policy”. None of us would object to that and I hope that the Minister will be satisfied with it. You could tack on, “shall also have regard to specific requests from the Secretary of State”. That might go a little further and might help. However, so long as “direct” is kept in the wording, we shall continue to be in trouble.

As noble Lords will appreciate from our debate on the first day in Committee, I strongly support the noble Earl, Lord Howe, in this amendment. I support the amendment more strongly today than I did yesterday, because, in our debates for the past two Committee sessions, I have become increasingly concerned that the Government are failing to hear what is being said loudly and clearly—that the Bill as it stands will not provide us with a regulator that is fit and able to regulate social care. My big concern is that the Government seem not yet to have grasped that, although it is entirely understandable that the focus of their attention is acute health—because that is what they fund and provide—the majority of social care is not funded by government and is not provided in the same way.

I take this opportunity to put on the record that my misgivings on this legislation, and everything that has happened under its auspices, are leading me more and more to agree with the noble Lord, Lord Lipsey, that it is bad legislation that we should oppose more strongly than we have done so far.

I agree entirely with the noble Earl, Lord Howe, that of course the Government need to retain the right to require the commission to conduct special reviews and special investigations when there has been a particular problem, as was the case in an acute hospital in Kent before Christmas. However, that should not be a blanket provision to enable the commission essentially to sweep away two years of extraordinarily good work that has been carried out by CSCI and the Healthcare Commission. We are in danger of losing sight of that.

I put my name to this amendment in support of my noble friend. I agree with a lot of what the noble Lord, Lord Low, and the noble Baroness, Lady Barker, said. If this brave new commission is to win the trust and respect of the public and those that it regulates in the National Health Service and in social care, and if that trust is to be maintained, it is critical that its independence is maintained. That is a key factor.

Earlier, we discussed NICE. In the area that NICE covers, no politician has dared to interfere. Its independence has been recognised, except when Patricia Hewitt was Secretary of State, when there was uproar: the NHS cried, “Foul! This is not what you should be doing”. I am anxious that the commission, which will have a wide remit, should also have that independence. Monitor, the new regulator, has much more freedom. It is independent of the Department of Health. The NHS Act 2006 states that the independent regulator,

“must not be regarded as the servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown”.

The remit and responsibilities of Monitor, which are very important, are much narrower than the Care Quality Commission’s.

The definition of independence is, “not depending on authority”. Surely what we are all seeking is that the commission should not depend on authority. I am sure that the Minister when she replies will say that it would be very strange if you had a regulator that ignored the breadth of government policy, and the parameters are very broad. Of course that is right. We believe in democracy and at a general election the electorate will vote for the party whose policies they prefer. Once elected, the new Administration’s manifesto commitments and the policies that flow from them are very much respected because we live in a democracy. So there is no quarrel there.

However, as my noble friend and other Members of the Committee have said, we strongly object to the wording of Clause 2(4), which is much too prescriptive. It gives the Secretary of State the power to direct the regulator to carry out certain functions that the Secretary of State wants performed. It is not about independence but about control.

Of course there is a worry that the regulator may act inappropriately or ignore government policy, although that is unlikely if she wants to keep her job. If an issue arises, the Secretary of State could well request the regulator to take account of a policy and then make that request public, to use the words of the noble Lord, Lord Low. When we use that device—when the Secretary of State makes a request that is written down and made public—we know that the process is transparent and informs the public of the issues that are being addressed. That seems a sensible way forward. Under the Bill, the Secretary of State always has the ultimate power to change the regulator. Indeed, I think back to when this happened with the gas regulator, who wanted to introduce competition much faster than the Secretary of State in that field thought desirable. I feel strongly about this. We shall return to the question of independence time and time again.

It would be very odd if a commission sought to act against a clear law of any Government. Surely any commission in its work automatically must keep within the law. The noble Baroness might bear that point in mind in support of her arguments.

I am grateful to the noble Baroness. This subsection should not be in the Bill. It compromises the independence of the regulator to an unacceptable degree. I hope that the Minister and her colleagues will think again.

I will be brief. Having tried to rise several times, I have almost lost my impetus. I have been involved in a number of Bills and I have sometimes hoped that a Minister will say, “We will take this away and look at it”. This is such an occasion.

Having worked on numerous non-departmental public bodies and non-ministerial bodies, I understand the need for a balance between understanding the Government’s policy framework—under which, as a member of such bodies, you would be ill advised to fail to work—and the need to be independent enough to express the views that you find in your work on behalf of community groups, user groups or whomever you are representing. Someone will pick me up on the word “representing”, but you know what I mean—the people for whom you are working. That balance has been well worked through.

I hope that the matter will be taken away because, like the noble Earl, Lord Howe, on looking through the Bill I am concerned at the variety of places where the Secretary of State has almost managerial capacity. The exercise of functions in Part 2, where the Secretary of State may specify the programmes of the inspection framework, particularly concerns me. The Secretary of State has every right to inform the body of the Government’s view on how the programme might move forward, but the ability to direct and specify it is an extraordinarily difficult thing to have in the Bill.

I hope that the noble Baroness will be prepared to take this away, recognising that most of us who have spoken understand the balance between the need to work within the government framework and the rights of the Secretary of State and the need for that independence that gives a voice to a non-departmental public body.

I have said on many occasions in your Lordships’ House that we are in serious danger of living in an overregulated society. Over the past few years, there has been a huge number of government initiatives, some of them very easy to understand. For example, I was president of the General Medical Council between 1982 and 1989. Subsequently, because that body ran into considerable difficulties for reasons that I do not need to explain, it was overseen, as were the other professional regulatory bodies, by the Council for Healthcare Regulatory Excellence, another Big Brother overseeing the activities of Big Brother. In various clauses, such as this one, the Bill reeks of Big Brother. It is an issue of direction.

I remind the Committee that many years ago the late Lord Chancellor, Lord Hailsham, said that professional self-regulation was one of the glories of a learned and civilised society and that the alternative, regulation by the state, was too fearful to contemplate. That exact phrase was echoed by the noble Lord, Lord Dahrendorf, in his Jeffcock lecture to the Royal Society of Medicine in defence of the UK professions.

As my noble friend Lord Low said, in this clause and many others it is the word “direct” that we regard as being totally unacceptable. It would be possible to modify the wording to make it much more reasonable. For instance, the wording, “the Secretary of State may indicate”, is much less prescriptive and much more acceptable. The Secretary of State could indeed indicate,

“such aspects of government policy”,

as might be taken into account by the new commission. A modification of that nature is essential, because the direction of the Bill takes government control of the commission far too far and is quite unacceptable.

I will say a few words as the Minister who took the 2003 Act through, which had exactly the same wording as we are discussing here. I seem to recall—from memory, I have not checked Hansard—that I was chided then as being a sort of embryo dictator who was going to ensure that we micromanaged the commission. I think that if you ask the chairs and chief executives of the commissions, they will say that we have not micromanaged them. It is not a bad rule to see past behaviour as a predictor of future behaviour.

If there are other parts of the Bill that noble Lords see as micromanagement, the right thing to do is to amend those parts of the Bill, not to delete this one, which qualifies what comes before it: the functions. I say gently to some colleagues opposite that if a democratically elected Government publish a manifesto and are elected on the basis that they will do certain things in relation to the service that is the highest consumer of public sector funding in the country, it is not an unreasonable proposition that the Secretary of State in office, whether a Conservative Secretary of State, a Labour Secretary of State or even—dare one contemplate it?—a Liberal Democrat Secretary of State, should be able to implement that manifesto commitment.

I give the Committee some examples. I recommend to those who want to check them the Labour manifestos of 2001 and 2005, which dealt with choice and targets for improving cancer waiting lists and A&E departments. It is quite reasonable to require the regulator to take account of those obligations in the way in which it inspects.

I am not being fanciful about this, because I think that the Bill can be improved; indeed, I have tabled amendments to do so. Parts of this Bill would not have been framed as they have if I had been the Minister responsible for them. But this subsection does not seem to me to be the right one to amend, because it merely carries forward provisions that have already been made under existing legislation passed by this Parliament.

Is the noble Lord aware of the time when the Department of Health, through its chief executive, challenged Monitor on an area that was specifically about foundation trusts? That was an example of Monitor, which had a strong chair, resisting the challenge. Nevertheless, the attempt was made by the department to take over some of the independence that Monitor quite rightly and through the law had as its own.

That did not happen on my watch, as they say, but I strongly supported Monitor in the actions that it took in response to what I thought was inappropriate direction by the chief executive of the NHS.

I thank all noble Lords for an interesting discussion. I should say to the noble Baroness, Lady Barker, that we have said several times already that we will take things away and look at them. Indeed, according to my notes, we will be doing that a few more times, so it is not a question of the Government not being prepared to listen. I have listened to the arguments in support of this amendment and I shall explain why we do not want to accept it, but we need also to consider what my noble friend Lord Warner has said. I shall set out why we do not want to change this part of the Bill, but we know that other parts relevant to the issue may need to be looked at.

As the noble Earl said, Amendment No. 22 would remove the power for the Secretary of State to issue directions requiring the commission to have regard to particular aspects of government policy. I say at the outset that we are committed to creating a commission that is no less independent than any of its predecessors. Clause 2(4) carries forward the same wording as the legislation that created the Healthcare Commission and CSCI. I refer to Sections 130 and 131 of the 2003 Act respectively, with which my noble friend is probably very familiar. I think that we would all agree that the current bodies have been independent and do not seem to feel any less independent as a result of the legislation that established them. Moreover, I would say that that applies particularly to Dame Denise Platt.

Like its predecessors, the Care Quality Commission will be an important player in the broader regulatory framework. If that framework is to have a positive impact on the health and social care that the public receive, the commission will need to work effectively with all the parts of it. Perhaps noble Lords will allow me to explain that. Both the NHS and local government social services are public services with significant political and policy input. In requiring the commission to have regard to aspects of government policy, all that we are indicating is the expectation, with which noble Lords have generally agreed, that the commission will respect the broad direction that government policy is driving towards. In the fullness of time, the commission almost certainly will be critical of aspects of that policy—indeed, that is exactly what it should be—but it is entirely reasonable that, in monitoring and assessing statutory services, we should expect the commission to take account of government strategy and the policy objectives that those services are expected to meet.

We need to look at this in the context of the agreement made by the Government yesterday to examine the earlier part of this clause in order to establish the right balance. The relationship is reflected in the detail of the Bill. The Secretary of State will set the registration requirements approved by Parliament and the commission will then produce detailed guidance on what different services should do to comply with those. Similarly, for the commission’s periodic reviews, the Secretary of State will set the overall indicators that statutory services will be assessed against, but the commission will determine the methodology by which it conducts those assessments. Its new enforcement powers will apply to NHS providers for the first time and, although registration requirements will be set out in regulations, the CQC will develop its own criteria and methodology for its judgments.

Therefore, we would expect the new commission to take account of government policy without the need for directions to be issued. However, if it did not, I suggest that that would result in inconsistency and confusion for the public, commissioners and providers of health and social care; indeed, it could undermine the credibility of the Care Quality Commission. I do not think that any of us anticipate that that is what will happen.

I hope that I have explained where we are. It is unlikely that we would be prepared to amend this part of the Bill, but I ask noble Lords to see what the balance looks like when we have looked at the earlier parts of this clause and then put that in the context of the rest of the Bill.

It is the context of the Bill as a whole that I was trying to bring to life. I do not think that anyone would argue with the Minister that precisely this wording is carried forward from previous legislation—I made that point myself—and that there is, as the noble Baroness, Lady Howarth, said, a balance to be struck. If this were the only provision of its kind in the Bill, I think that we would all feel more relaxed, but it is not and that is my concern.

Of course, the Government could make a pretty good case for saying that they have not interfered with the Healthcare Commission or CSCI in terms of micromanaging their affairs, but we are legislating here not just for the present Government but for all future Governments on the assumption that this body will be with us for many years. Therefore, what is in the Bill matters. It is not just a question of Ministers standing up and saying, “We have no intention of micromanaging”. We can all accept that assurance in good faith, but we are legislating for the statute book.

I end on a positive note, picking up on the Minister’s final comment. If the Government go away and rethink some of the issues that we have debated in this Room in relation to Clauses 1 and 2, there is a possibility that we will make progress in this area. The introduction of objectives would, I think, serve to rebalance this part of the Bill in a helpful way. I am sure that we all look forward to those discussions. In the interests of expedition, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 23 not moved.]

moved Amendment No. 24:

I am delighted that we had a break just at that moment because I am sure that it has given the Minister a chance to find out exactly what the total cost is of health and social care services provided by both the state and the independent sector in this country, as well as the number of people employed in both undertakings. No doubt she will be ready with those figures for us by the end of the debate. I am beginning to sound like Boris Johnson, at least for a moment.

The Government’s sustainable development strategy, Securing the Future, launched only three years ago in 2005, called on new bodies, as they are created, to apply sustainable development duties. Recalling what the noble Lord, Lord Warner, said in the debate on the previous amendment—that this legislation merely implements a government manifesto promise—how can we possibly be denied this small but important alteration to the Bill in order to bring in the words “sustainable development”, which was also the subject of a government manifesto promise? I hope that the Minister will accept the point.

Perhaps the Government will respond by saying that the NHS has a carbon reduction strategy. We have certainly heard about that. But that programme addresses only carbon reduction, not sustainable development, which is a much broader concept. A sustainable development requirement would ensure that the health service used all its corporate powers and resources,

“as an employer, a purchaser of goods and services, a manager of transport, energy, waste and water, as a landholder and commissioner of building work and as an influential neighbour in many communities”—

all these things are part of the health service—to benefit health and well-being by investing in local communities, the economy and the environment. Its carbon reduction strategy is much narrower in scope, addressing only one aspect of living within environmental limits. It does not and cannot include a full range of policy levers for carbon reduction, such as regulation, which the Department of Health determines. Indeed, the department needs to back the efforts of the NHS on carbon reduction by including sustainable development in its regulation. This is essential to ensure that the NHS meets the government target to reduce carbon dioxide emissions.

The NHS carbon management programme applies only to the health service, but here we are talking about the Care Quality Commission, which will be responsible for all social care services as well. So we cannot be told that the carbon reduction strategy makes our amendment unnecessary, because it covers only the NHS. Once again, I impress on the Committee our worry that social care services will miss out when the merger of the commissions takes place. The amendment is therefore essential for healthcare and social care to meet government targets and the Government’s own manifesto commitment on sustainable development. I thank the noble Lord, Lord Warner, for pointing that thought out to me. I beg to move.

Whatever the Minister is willing to do or not to do about putting statutory objectives in the Bill, there is a strong case for the promotion of sustainable development to be one of the core purposes for which the commission is required to exercise its functions. Sustainable development is a goal that will endure, whatever Government may be in power.

The NHS alone is one of the largest employers in the world. It maintains a built estate of enormous size and is a vast consumer of energy. We need to think of such things as the management of waste, the use of energy and the use of transport. Buildings need to be designed in a way that will last and that will be conducive to the well-being of staff and patients. Procurement should be not just cost-effective but also environmentally friendly.

We are living at a time when climate change is never far from people’s everyday conversation. One of the effects of climate change may well be an increased tendency for us to experience extremes of weather, such as the dreadful floods that we saw last summer. The NHS needs to make contingency plans to cope with flood risk and to ensure that services are not disrupted by bad weather. The White Paper, Our Health, Our Care, Our Say, was clear about sustainability as part of future health policy; indeed, so important is the goal of sustainability within the NHS that I understand that there is now a sustainable development unit operating within the Department of Health.

Some public bodies, such as the National Assembly for Wales and the Greater London Authority, already have statutory duties in relation to sustainable development. In their document, Securing the Future, the Government undertook to apply sustainable development duties to new statutory bodies as they are created; the noble Baroness, Lady Tonge, mentioned that. Making sustainable development a part of what the CQC is about would encourage it to think sensibly about the use of its own resources, to recognise the need for having a good business case for any proposals that it looks at and to have measurable outcomes in any project that it oversees or undertakes.

I have read with interest the section on good corporate citizenship on the NHS website. It says:

“How the NHS behaves—as an employer, a purchaser of goods and services, a manager of transport, energy, waste and water, as a landholder and commissioner of building work and as an influential neighbour in many communities—can make a big difference to people’s health and to the well-being of society, the economy and the environment”.

So the department fully recognises the importance of being a good corporate citizen. I hope that the Minister will take the proposal away and look at it carefully.

Ministers might be forgiven for starting to think that there was an umbilical cord running around every person in this Room, save for the Front Bench. To demonstrate that that is not true, I do not support the amendment and do not think that the Government should accept it. They will really stuff me if they announce when they reply that that they are accepting it, but I will take that risk. When I first saw the amendment, I thought, “Typical Liberal Democrats”—and then I saw that the noble Earl, Lord Howe, with whom I strongly agree on 99 per cent of matters, had put his name to it.

My concern is not about the idea that sustainable development is important, because of course it is. My concern is with the growing tendency in the modern world to elevate secondary objectives of organisations to the level of primary objectives, including by writing them into Bills. That is a terrible danger, often seen in the multiplication of targets for organisations. If you give an organisation one, two or three objectives, it can hope to fulfil them and be accountable for them. If you give it 20, 30 or 40, the task becomes unmanageable and the organisation may be diverted from its central tasks. Occam taught us,

“entia non sunt multiplicanda praeter necessitatem”—

forgive my French—which means, “Do not multiply beings without the necessity of doing so”. The same is true of objectives for regulators on the face of legislation.

I am grateful to the noble Lord, Lord Lipsey, for his intervention. I would be horrified if people outside this Room got the impression that we were in agreement most of the time. I accept the thrust of what he said but, as this is a matter of singular importance, I disagree with him for this reason. In the corporate world, sustainability has reached levels of importance such that it is one of the primary objectives of most major companies. I was sad enough to have read my way through Tesco’s corporate social responsibility report, the bulk of which is about environmental matters and not about charitable giving and so on. Clearly in the private sector there is a massive financial incentive to develop sustainable policies and practices; in the public sector there is no such driver. That is why the noble Lord is wrong to take exception to the amendment. I believe that regulation and regulators in the public services play a role in driving forward an important agenda. It may not appear important to people in their day-to-day working lives, but it is a growing necessity.

Amendment No. 24 would require the Care Quality Commission to perform its functions for the general purposes of encouraging the promotion of sustainable development. This would be in addition to the requirement in Clause 2 of the Bill for the commission to carry out its functions for the general purposes of encouraging improvements in healthcare, user-focused care and the efficient and effective use of resources.

I think that we all agree about the vital importance of delivering sustainable development. The Government are working hard and looking across the whole system for opportunities to push this important agenda forward using levers such as effective commissioning. In particular, we recognise the profound responsibility of the NHS because, as the noble Baroness said, it is such a large player in the public sector. Health and adult social care sectors spend more than £100 billion of public money—it is currently around £110 billion—and involve about 2.9 million people in the delivery of services.

I am impressed.

And I am impressed with the people behind me.

As such, through the forthcoming NHS carbon reduction strategy, to which the noble Baroness referred, we are determined to implement a system that helps to achieve our ambition of a significant reduction in carbon-related emissions. We expect to launch a consultation on this strategy in June 2008. But that will be a beginning and not an end. The noble Baroness is right: this is not the whole story.

The Care Quality Commission can of course play a role here. The good news is that the Health and Social Care Bill already allows us to give the Care Quality Commission an effective role in promoting and contributing to sustainable development across health and social care. The publication of comparative information is a significant incentive to improving services and I take this opportunity to put on record our intention to require the Care Quality Commission to publish information about the performance of NHS organisations and others in this vital area relating to how individual organisations are contributing to sustainable development.

Chapter 3 gives the Care Quality Commission responsibility for reviews and the publication of comparative information on the quality of care. Chapter 5 allows studies as to economy, efficiency and so on. Those functions already allow the commission to consider aspects of sustainable development. Moreover, the indicators used for the commission’s periodic reviews could, where appropriate for health and adult social care organisations, be used to promote energy efficiency and broader elements of the sustainable development agenda, such as reducing health inequalities and tackling obesity.

Our 2008-09 “vital signs” for PCT planning include, for the first time, an NHS carbon and energy efficiency indicator alongside those indicators for improving health and accessing effective care. Again, that is a start, not an end. We are committed to working up suitable indicators on sustainable development as one of the issues that the commission will consider in its periodic reviews. That approach may have greater impact than a general requirement such as is proposed in the amendment.

I confess to being a little confused by that. All that we propose in our amendment is to include in the Bill two words from the Government’s own strategy. I think that the noble Baroness is saying that all these things are there, except those two words. Why is she so frightened to use those two words, which are the Government’s own phrase?

I am not frightened; I have been using them all the way through my explanation. If I may, I shall go on to explain why we do not want those words where the noble Baroness proposes to put them.

The risk with a more general purpose is that it is unclear what would be expected of the new commission and how it would balance that requirement with its primary role in assuring safety and quality of healthcare and adult social care services. We want action from the start. We do not want a long debate about sustainable development; we want the commission to have it embedded in what it is doing.

It would be unnecessary, for example, for the commission’s registration and enforcement functions in Chapter 2 to apply to sustainable development. Those functions and powers rightly apply where care service users are being exposed to unacceptable risks or poor-quality care. To illustrate that point, Members of the Committee would not expect the Care Quality Commission to close down a care provider on the basis of its carbon footprint or its poor energy efficiency record. On the other hand, there are perfectly plausible cases where the commission may quite rightly take enforcement action in response to an appalling care record against an otherwise energy efficient service.

I use that as an illustration of the problem with putting those words into the clause on the general functions of the commission. It is a question of how to build sustainability into the work at the relevant and appropriate moment. We are not convinced that it is most effective as a general purpose, so I ask the noble Baroness to withdraw the amendment.

I thank the Minister for that reply, but the Committee is becoming a bit like that programme on Radio 4, “Points of View”. I do not know whether other Members of the Committee ever listen to it, but the producer of the programme always comes back and says that what he did was absolutely right and the listeners were absolutely wrong and should not have raised the issue. It is beginning to feel a bit like that.

To me, this seems to be the most innocuous phrase. The amendment would not “impose” sustainable development; it does not talk about taking to court or closing down any establishment that does not operate according to the government sustainable development strategy. It merely calls for the commission to promote sustainable development, which the Minister seems to have said in her reply that the Bill will do anyway. I still do not understand why we cannot use those words, but we will come back to this. We feel strongly about it—the noble Lord, Lord Lipsey, will know that Liberal Democrats feel very strongly indeed about the future of our planet—and we shall come back to it, but I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 25:

I shall speak to Amendment No. 93 in this group which requires the Care Quality Commission to establish a sub-committee known as the mental health sub-committee. This sub-committee would be responsible for advising the commission about the exercise of the commission’s functions with respect to mental health services.

Why do we need to single out mental health in this way? First, patients detained under the Mental Health Act or the Mental Capacity Act who are subject to community treatment orders are likely to be less able to defend themselves than, perhaps, any other patients whose services will be the subject of regulation by the CQC. If you do not have your full mental capacities, you really are in a completely different situation from anyone else. I fully recognise that people with a range of disabilities and problems have their own vulnerabilities, but this is different.

Secondly, these patients are likely to be less able to understand whether or not services are being properly provided to them and, if not, to what extent. They may not even realise what is going on. Thirdly, these patients are not at liberty to change their service provider or opt out of the patient role. As I said previously in relation to another amendment, in a real sense they are prisoners in their environment in a quite different way from most other patients, although I recognise that some other patients may feel somewhat imprisoned.

If we take three examples the point can be readily illustrated. For example, how can a dementia patient who is not being adequately fed or cared for in a nursing home deal with that situation proactively? The same can be asked about an acutely ill psychotic patient on a locked ward who has an adverse reaction to medication and can hardly remain conscious; and about an acutely depressed service user under a community treatment order whose medication is so ineffective that they become suicidal. None of those people would be in a position to pursue concerns in a proactive way, as they would need to do with a normal regulatory regime.

The Mental Health Act Commission rightly operates entirely differently from the other two inspectorates. It relies in a unique way upon visits to individual detained patients to check that services are being properly provided under the law. But the new regulator will also need to consider safeguarding those patients who, from 1 October 2008, will be subject to community treatment orders. There is a whole raft of new challenges that have not been faced previously. Also the new provisions of the Mental Capacity Act are another raft of new requirements and demands. How on earth are the interests and needs of these different groups of very vulnerable people to be assessed alongside all the other regulatory responsibilities of health and social care providers? They will need to be dealt with in an entirely different way.

The Healthcare Commission adopted an efficient self-assessment system with visits limited to trusts that are not coming up to scratch and a number of others chosen on a random basis. But this process simply will not be suitable for mental health. One of the benefits of the unified CQC regulator will be the streamlining of the work of the three organisations, as appropriate, and the reduction of bureaucracy. As Members of the Committee know, I am one of those who feels that, in relation to health, the weight of all these regulators, plus that of about 50 others, has been pretty disastrous and incredibly time and resource-wasting.

There will be potential for streamlining in health and social care. For any individual patients, health and social care are increasingly intertwined, certainly in my world. People move all the time between health and social care and back again, and at any one time they can be using both. An important role for the new regulator will be the monitoring and inspection of care pathways across and between health and social care. That is one of the reasons why in the future there will be a great potential benefit in bringing these areas together. That is the main reason why I do not support Amendment No. 25. There will be a value in bringing these areas together. You do not want to create silos where the potential benefits of the regulator will not be experienced.

I am not arguing that all three parts of the new body should simply carry on as before; that would make nonsense of the reform. Equally, though, it will be important to be sensitive to the fact that the three existing bodies are dealing with very different issues and very different people, as well as different environments, from hospitals to domestic homes to individuals in the community. Only through something like an expert mental health sub-committee will the new body find the right balance between the integration of functions and adequate protection for people with severe and enduring mental health problems whether they are in the community or in hospitals.

The expert committee could make skilled judgments about the extent to which it would be reasonable to adopt a more selective approach to visiting detained patients, those in the community and those under the Mental Capacity Act. It would be dangerous for those sorts of decisions to be made by a general commission comprised of people with very different kinds of experience but not a depth of professional knowledge about mental health.

It is worth reiterating that we have a precedent for this approach in the Equality Act 2006, which included provision for a disability committee within the Commission for Equality and Human Rights. The committee was included in the Bill to ensure that the EHRT was able to respond effectively to the distinctiveness of disability without that specific perspective affecting its ability to deliver other strands of its remit.

I hope that the Minister will recognise that there is a similar case for a mental health sub-committee within the new Care Quality Commission.

I have put my name to this amendment and would like to speak in support of it. It has been widely recognised in our discussions that health and social care are very different. Sir Ian Kennedy made that point in his evidence to the Public Bill Committee in another place when he said that the health and social care sectors were significantly different. So different models of regulation will remain appropriate despite the new legislation. Dominating the healthcare sector are large, publicly funded providers with many highly technical services. The social care sector comprises 26,000, mostly smaller, privately funded providers.

[The Sitting was suspended for a Division in the House from 6.07 to 6.17 pm.]

I had just got going. I was quoting from Sir Ian Kennedy when he spoke to the Public Bill Committee in another place and emphasised the differences between health and social care. I had not got very far, so perhaps I may go back to the beginning of what he had to say:

“The health and social care sectors are significantly different, so different models of regulation will remain appropriate, despite the new legislation. Dominating the healthcare sector are large, publicly funded providers with many highly technical services. The social care sector comprises 26,000 mostly smaller, privately funded providers, mostly concerned with care which is non-technical and in which matters such as dignity are at the fore. As a result, regulation in healthcare is more information-based and can therefore be more confidently risk-based than in social care, which is based more on visits by way of inspection”.

One can summarise these differences in the regulatory methodology employed by health and social care by saying that the regulation of healthcare facilities proceeds much more by looking at large datasets kept by these mostly large organisations to see where the risks are to be found, and in the skills and experience required in the two sectors. While almost everyone has some experience of health services, that is not the case for social care. There are also complex inter-relationships between social care provision and other services, including extra care housing, employment services and benefits. A whole different body of expertise is required for the regulation of social care when compared with the health sector.

These are generalisations and obviously I am not trying to say that health inspection does not rely on visits to premises and facilities at all or that the examination of data is not appropriate in social care regulation, but what I have said serves to characterise correctly, I think, a general distinction that exists between the two kinds of regulation.

The points that the noble Lord has made relate to mental health as well as to social care. For people with mental health problems, you have to look at the housing, the benefits and all the other aspects of their care, although one can maybe separate off acute health from mental health and social care. One needs to be careful about that.

I am happy to acknowledge that. Forgive me for shorthanding my presentation. The noble Baroness’s point is obviously correct with regard to mental health, and I warmly embrace it. The Committee can see where I am going: I am arguing for specialisation in the commission. I would take no persuading at all that there needs to be specialisation in the regulation of services for those with mental health problems, and indeed a structure to reflect that. The noble Lord, Lord Lipsey, has acknowledged that in moving the amendment. The points in relation to mental health are going to have to be taken care of as we go through the Bill.

Worries have been expressed that social care will be the poor relation of health in the new dispensation that the Bill seeks to set up. There are two grounds for feeling that those worries have some basis. First, there was the specification of the job in the advertisement for the chair that was put out, which no one has sought to deny focused predominantly on health. Then there are the priorities announced for the new body, the Care Quality Commission; the advertisement says that the first priority for the new commission will be dealing with healthcare-acquired infections. I am not seeking to say that that is not important, but saying that it is the first priority has certainly conveyed the impression in the social care world that concerns of social care are being downplayed and deprioritised in the way that the new body is being conceived.

Worries have been expressed not just by CSCI but widely across the voluntary sector. Several significant voluntary organisations, including Carers UK, Help the Aged, Age Concern, Mind, Mencap, RADAR and the Alzheimer’s Society, wrote a letter to the Guardian. I cannot think why the RNIB was not there, but then perhaps I would have had to declare an interest. This impressive raft of organisations expressed their serious concern, saying that:

“The new commission must take full account of the particular perspectives of social care in this country, putting human rights values and the views and experiences of people who use these vital public services (all of us, at one time or another) at the centre of its activities. Otherwise, as currently drafted, this bill runs the risk of moving the health and social care sector backwards by setting up a regulator that works to yesterday’s policy agenda, to the detriment of all those who use such services”.

Those points were made forcefully in the debates on the Bill in another place that preceded the debates in this House. The Minister of Health acknowledged their force when he 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 … That point will be emphasised throughout the passage of the Bill”.—[Official Report, Commons, 26/11/2007; col. 37.]

My contention is that it has not been emphasised. The Bill, in relation to the structures that have been put in place to reflect parity between health and social care, has not altered in one particular. Amendment No. 25 seeks to do that. I have no problem whatever in embracing Amendment No. 93, tabled by my noble friend Lady Meacher, as well. These amendments seek to put new structures in place to reflect fully the parity of importance which the Minister himself has acknowledged needs to be given to social care.

CSCI is on record as saying that it would like a social care commissioner on the board, but it is a contention of the noble Lord, Lord Lipsey, and myself that that is not enough. We must all have had the experience of being a lone representative of some constituency or other on a board of anywhere between 10 and 20 people. You are a lone voice. It is very difficult to get your point of view across in a mindset which may come from somewhere completely alien, let alone succeed in winning the points that you are trying to make. It is our contention that we need a commission, not just a commissioner.

Of course, there should be a social care commissioner on the board and a commissioner with responsibility for mental health as well, no doubt. Commissioners on the board should be able to reflect the views and the expertise of the sub-commissions. If such commissioners on the board are to be able to operate effectively, it is essential that they have the support of their commission. That will give them the added weight that they will need and it will guarantee that the board will have to take account of the perspectives being generated by the sub-commissions. If you are a lone commissioner on a larger body, you can have your say, but it is all too easy for the rest of the commissioners to pass on it. If there is a sub-commission, it will have minutes; it will put papers to the main commission; and account will have to be taken of them—they cannot just be passed over. That is the case for a commission and not just a commissioner.

My noble friend Lady Meacher has mentioned the danger of working in silos. That point has been made a number of times in our debates already, but I am not worried about that. Of course, the social care commission would be working in a silo if it did all the work of the regulator in relation to social care, but that is not how I see it functioning at all. The commission would report to the main board, which would have responsibility, not just for taking account of and implementing the views generated by the commission, but for taking an overview and integrating the perspectives of the different sub-commissions. I do not entertain any worry about silos, but the arguments advanced for having a commission, and for saying that a lone commissioner is not enough, are overwhelming. I support the amendment.

I find myself in difficulty at this moment. In principle, I would very much like to support Amendment No. 25, but I have some real difficulties with it. I shall take rather more moments than I have been doing to work through why.

In my Second Reading speech I said that the rationalisation of regulation is not necessarily rational regulation. I say that again, because we must go back to the first principle that the Bill is deeply flawed in its timing and thinking. However, we have the Bill and, in having it, we must move forward with it. One of the dangers we now face is that, in moving forward, we are trying to maintain the status quo rather than moving forward in a new way.

To tackle one or two side issues before going on to where we need to be, I say to my noble friend Lady Murphy—this is a terrible thing, I have done it again. It is my noble friend Lady Meacher. They know that I am mad. I apologise to my noble friend. In her speech she talked about pathways of care, which are terribly important. Those pathways run through whole social strata. Young disabled people and young people with learning difficulties would certainly not consider going through those sorts of pathways of care, because they would consider themselves not sick but in need of other kinds of services. Just as people with mental illness do not see themselves as being in need of the same acute service, there are serious difficulties with some other groups. I therefore do not accept that mental health is unique. All the services have unique positions.

Like the noble Lord, Lord Lipsey, and my noble friend Lord Low—and although they both begin with “L” I have managed to get it right—I think that we must have movement forward. If you are to look at the governance of this body—that is, good governance—you must be able to set it up in a way that allows it to move forward. The Bill is flawed because we have not had a more fundamental review of services. We have all of us become continually confused in this debate between service delivery and the regulation of services. We are not really talking about service delivery, but regulation. However, regulation must follow service delivery. If we had had that review, we would have been able to regulate for the 21st century. We are currently, to use my noble friend Lord Low’s phrase, going through yesterday’s policy agenda. With that review, we would have been able to look at services as they should be, and the pathways as they should be for all service users, and have them reformed.

I have expressed time and again my huge concern that social care will get lost in health services. We have example after example of what is happening in social care now. Only yesterday, I was talking to a provider of large nursing home services who wished to provide those services as a home, a care facility, but perpetually found himself following health-based regulations. He almost felt that he should have a matron in a small hospital rather than a place where people who happened to be frail were being cared for. That is one example of the kind of issue that we will face if we do not ensure that social care has a fairly strong focus.

I cannot support the amendment because, in terms of good governance, an organisation must be able to think through the structure that will meet the requirements. If we had clear objectives in the Bill—I go back to that—the governance would therefore follow them and there would be greater clarity in the balance between social care and healthcare. I am therefore deeply sorry that I cannot support the amendments.

I rise to speak to Amendment No. 93 and shall put my medical historian hat on for a moment. I am not entirely sure that the Government understand the implications of the abolition of the Mental Health Act Commission and its place in history, and that is what has led me to support the proposal for a special committee.

Between 1840 and 2008, apart from one 20-year period, to which I shall return, a national named authority has been responsible for the inspection and visiting of individuals detained in mental health hospitals. The seventh Earl of Shaftesbury got permission to extend the metropolitan Lunacy Commission on a national basis. The Lunacy Commission became the Board of Control, which, noble Lords will remember, was abandoned in 1959. Apart from the 20-year period until 1983, during which time there was constant pressure on the Government from mental health professionals to recreate a mental health commission, there has always been a named statutory authority.

During that 20-year period, there were several famous occurrences. I do not think that anyone around this table will need to be reminded of the names of Ely, Whittingham, Fairfield and Normansfield hospitals. The inquiries surrounding those hospitals began around 1962 and carried on for the next decade. The Government tried very hard to address some of the problems with the creation of the Health Advisory Service, which was a very good thing but never exercised visitatorial and inspectorial functions. Although I have no direct evidence that there is any connection between the demise of the visitatorial and inspectorial functions of a specialist mental health commission, it is quite possible that there is a relationship between the two.

I speak as a former vice-chair of the Mental Health Act Commission over many years. I was there during some of its early, most difficult years when it was trying to work out how to work effectively and efficiently, and it was not always easy. When you first join the commission, one of the first things to strike you, as I am sure other noble Lords who have been on the commission will acknowledge, is the sheer complexity of mental health legislation. Those of us who toiled in the mines of the Mental Health Act 2007 will remember the extraordinary complexities and the difficulties that mental health services have in keeping up to date and implementing the right legislation. There are constant case law reviews being thrown at you that you have to take account of, and you have to relearn while continuing your professional development and so on. Throwing away a national focus without substituting something that can provide an alternative seems utterly foolhardy. Therefore, when creating a specialist committee with specialist functions for overseeing the implementation of the Mental Health Act—particularly when we have just changed the Act to make it even more complex, involving community patients and so on—we would be foolish not to try to meet those anxieties.

I take the point that many patients in our hospitals are as vulnerable as the detained and probably also need visiting functions—that certainly includes many people in social care units. In fact, the vast majority of people with mental health problems are in care homes, as they have dementia. However, the reality is that those who come under mental health provisions are especially vulnerable, and we owe it to them to create a system in which there will be a national body within the Care Quality Commission to focus on these special issues. Therefore, I strongly support Amendment No. 93.

With regard to Amendment No. 25, I understand the need, or urge, to look at care pathways and integrated care systems in which health and social care work together, and I understand why we would not wish to constrain the new Care Quality Commission.

A Division has been called in the Chamber. The Grand Committee stands adjourned until 10 minutes to seven.

[The Sitting was suspended for a Division in the House from 6.40 to 6.50 pm.]

The Committee can now resume. I apologise to the noble Baroness for interrupting her so rudely, but rules are rules.

Thank you. I was nearly at the end of my diatribe about my view that we must have at least a national committee with responsibility for visiting and overseeing the implementation of the Mental Health Act.

I will be raising this issue again under different amendments later in Committee, but I would like to remind noble Lords that the Optional Protocol to the Convention Against Torture, OPCAT, makes it clear that where a patient or anyone else is detained, there must be a truly independent body of experts visiting and monitoring their condition. Mental health patients clearly fall under that protocol; the Mental Health Act Commission is bound by it and the Government have signed up to it.

As was said on an earlier amendment, this also suggests that we need rather more independence than is perhaps discharged by the current wording with regard to the relationship between the commission and the Secretary of State. It is clear that we must have a national profile for mental health legislation and its implementation, and that the care of patients under that legislation should be a national function. I therefore strongly support Amendment No. 25.

I support Amendments Nos. 25 and 93. In the event of the Bill being passed, I should like to see either of the amendments on the face of the Bill. No doubt the Committee will be relieved to hear that my remarks can also be applied to Clause 2 stand part and that I do not intend to speak when we get to that part of the proceedings. Amendment No. 25 goes a little way towards recognising that this reorganisation of the regulatory bodies is a bad thing—I am quite sure of that. We have heard from other noble Lords that social services will suffer and that certainly mental health services will suffer.

I appreciate the Government’s attempts to reduce the number of quangos associated with the NHS. The other day I was sent a list of them; it is quite big. There are 65 quangos associated with the NHS. Twenty have been abolished in the last couple of years so there must have been many more than 25. The Government are doing well. I agree that there are far too many, but if these commissions are such a good idea and too many quangos are such a bad idea, why on earth did the Government not do what the Liberal Democrats suggested three years ago, which was to set up a commission to cover all three services? I cannot understand why the Government have done it this way.

If we break again for a Division in the Chamber, the Minister will have another opportunity to check up on the exact cost of this reorganisation, because despite having seen various documents I am still not clear on precisely how much it is going to cost. The three bodies will have to disband the buildings they occupy, whether they lease or rent them, and be set up somewhere else. Staff will have to be paid off and new staff taken on. I would like to know what the costs are for doing all that, and perhaps be told, for example, how many midwives that money would pay for if it were used on them instead.

The three bodies to be merged by the Bill have been in existence for only three years, which is a pretty short time. They have just settled down nicely and presumably are content with their offices and organisational structures. They probably have the right kettles to make tea, which in my experience is one of the most important things. The first consideration in a reorganisation is where you will be able to make the tea and eat your sandwiches. I hope that they have a clear idea of what they are doing. In my short time with this brief I have been impressed by the work of the Health Services Commission, CSCI and the Mental Health Act Commission, but instead of a merger being allowed to evolve, along comes a totally unnecessary reorganisation imposed from above. I have to say that it feels a bit like a job creation scheme for the Civil Service. I have enormous respect for the civil servants in the Department of Health but, as we plough through this Bill, I am beginning to wonder whether it is not just something to keep everyone occupied.

I am going to speak from my personal professional experience, although no one could match the eminence of noble Lords in this House. I worked in the health service for 33 years and I was there at the coal-face. My husband was a hospital doctor working as a neuroradiologist, so my family never understood what he was talking about. But I think they understood what I did; indeed, they used to call me “Barefoot Doc” because I was in general practice, community services and family planning. During that time I was also a chair of social services for my borough, so I saw things from the lowest point of view possible.

One of the problems I encountered during my last 20 years in the health service was implementing reorganisations. It took over almost two-thirds of my professional life. At first I managed women’s services, and then after a reorganisation I managed community health services, but they were reorganised into oblivion. I am still hoping that polyclinics will encourage a resurgence of what we used to call community health services. However, and this applies equally to the commissions as well as to government reorganisation, each new chief executive that appeared had to do his own little reorganisation. They would tinker with the structure, and sometimes it seemed to be something just to put on their CVs before they moved on to new positions. In my experience, reorganisation is the absolute curse of the health service.

I hope that the noble Lord, Lipsey, will help me with this since I am supporting his amendment. We had permanently displayed in our offices and clinics the Latin tag attributed to Gaius Petronius, whoever he was, which translates into English as:

“Just as we had formed teams and were working well, along would come someone who would reorganise us and cause complete confusion while trying to give the appearance of progress”.

I shall be very brief. I must disagree with my noble friend Lord Low about the priority of hospital-acquired infections. With the horrific deaths of people going in to hospital for routine surgery and dying from C. difficile or MRSA, surely there is no point having social care if a patient is dead. That can happen in care homes as well. Infection control must be a top priority. It seems to me that there will be in-fighting within the CQC, so the amendments are very important.

Where does one start? So many important things have been said. I start by congratulating the noble Baroness, Lady Young, on being chosen by the Secretary of State as the preferred candidate to be the shadow chair. I know that the Committee had a long debate yesterday about concerns and anxieties about the timing of this appointment, and I sat and listened very carefully to all those anxieties and concerns. Obviously, I cannot speak for the Healthcare Commission or the Commission for Social Care Inspection, although I was on the board of the Healthcare Commission for several years, but I can speak for all the staff, commissioners and second-opinion appointed doctors—in total, about 300 people—in the Mental Health Act Commission.

We are where we are with the Bill. Whether or not it is a good idea to merge the three organisations, we have come a huge way; we have travelled a long journey. My anxiety is that I am going to lose a number of specialist staff unless we get on with the show. It is really important that the shadow chair shows some leadership by saying where we are going and how we are going to get there. I understand the anxieties—I have raised them myself—but the next three to six months are crucial in keeping the show on the road for the Mental Health Act Commission and for detained patients, ensuring that all the expertise that we have remains. There is a worry that that will not happen if we continue to raise concerns that might destroy people’s confidence in remaining where they are.

I take the noble Lord’s point that we are where we are. Where we are at the moment is that we have a Bill in front of Parliament that a number of noble Lords have expressed fundamental anxiety about. They are not being flippant. The Bill is not through Parliament yet, and may not pass. What is the risk to the Mental Health Act Commission of losing staff in the event that the Bill does not pass and the commission continues in existence? I do not understand why that should be.

Staff have got the message from all quarters that the Bill is passing through Parliament.

Does the Minister accept that it is possible to explain to them that we have a parliamentary procedure and that such an arrogant assumption on the part of the Government is misplaced?

It is nice of the noble Baroness to call me a Minister, but I am certainly not there. The reality is that many good staff in the Healthcare Commission, CSCI and the Mental Health Act Commission have been jumping ship because of anxiety about what is going to happen. Many are unhappy about it. They see 31 March next year as a deadline, and there are all sorts of concerns. I am not arguing about whether they are right or wrong, but that is the reality.

I come back to the commission and where it stands. The staff have been keen to get some leadership into position and to see what the future holds. I come back to the important issue expressed so eloquently by the noble Baroness, Lady Murphy, that we have always had a statutory body that has looked after the concerns of detained patients. I, more than anyone, am concerned about that. I joined the commission as a visiting commissioner in 1995. Every week I visited high security hospitals and local hospitals and saw lots of abuses of the Mental Health Act on a day-to-day-basis. I was frustrated by what I saw and by what I could not do. I became a lead commissioner and took teams of commissioners into hospitals. We dealt with lots of issues but were very concerned about the fact that our powers were limited.

I became vice-chairman and then, when I became chairman, I reorganised the whole commission because I thought that we were not tackling those fundamental issues. A team of us would go into a hospital, find a load of issues that were wrong and then, a year later, because we had limited resources, we would go back and find that more than half, maybe three-quarters, of the issues we had raised were still there; nothing had been done about them. Service users and patients constantly told us, “You’re nice people, you do some really good things, but you’re useless when it comes to my kind because you haven’t dealt with this. I’ve been abused and you waited a year to come back”, even though we had followed it through, because people did not go in.

I made changes at the commission. Now individuals go in regularly and frequently. We have teams and support networks that cater for their comradeship, and people can go in at any time. They are consistent in their visiting. If they come across an issue they will deal with it with the ward manager, the chief executive or the area commissioner. They can even go back in the next day because of the flexibility we have created. It is important that we have created that new structure.

In that body of commissioners there are 107 people. You can pick up the phone and ask about any ward in the country that has detained patients, and someone in that organisation will tell you about it; they will tell you what is wrong and what is right with it and what is happening. I do not want to lose that expertise.

I am also concerned—and this has come from our service user reference panel, of all people; the people we were talking about yesterday—that our role is limited. When commissioners go into hospitals, they interview detained patients in private. That is important, because a lot of our information about what happens to people comes from those who do not want to see us. We find out so much.

We are also looking at how the Mental Health Act is monitored. That is what we are there for. We have to walk past people who may be being treated appallingly but under the law we have to turn a blind eye because it is nothing to do with us. It is none of our business, and we have been told that many times by esteemed lawyers and academics. So for us this organisation is beneficial in being able to look at the whole pathway of patients who are deprived of their liberty but are not detained under the Act. Sanctions and enforcement measures will be available to enable us to deal with these issues. We shall be able to understand why patients are in these places and question what happens after they leave. That whole pathway is very important. I do not want to recreate those silos in a new organisation that is supposed to do away with them. I struggle in respect of Amendment No. 25 in terms of having silos, particularly in social and healthcare, as these bodies have been designed to have a seamless health and social care policy.

I am sympathetic to Amendment No. 93 as it tackles the specialist nature of monitoring the Mental Health Act. This is not about mental health per se. I take on board the point made by the noble Baroness, Lady Howarth, about people with learning disabilities and others also requiring a pathway, a journey into care and wrap-around services. The responsibility under Section 120 of the Mental Health Act to review the powers and duties of that Act is to be moved lock, stock and barrel to this new organisation. It will have a special legal remit to undertake that. I am reassured by Ministers and officials—and by the fact that this duty will be transferred lock, stock and barrel to the new organisation—that visiting and interviewing detained patients will continue on a fairly frequent basis. That is important. However, there needs to be a mechanism in this organisation—Amendment No. 93 would go some way to achieve this—to monitor the powers and duties of the Mental Health Act. That is important. The day-to-day work of the Mental Health Act Commission is to safeguard the interests of detained patients. Even if there is a crisis, that duty will never be relinquished. We will still safeguard the interests of detained patients, interview them and ensure that they receive appropriate care and treatment. I hate to mention MRSA or C. difficile, but if mental health is the Cinderella of health services, they have the potential to be the two ugly sisters that alter the focus as regards what should happen to a small group of patients. I support the concept of Amendment No. 93—I ask my noble friend to ensure that the interests of these patients are safeguarded—but in general I do not support Amendment No. 25.

I listened carefully to what the noble Lord said. I understand entirely his point about the duties of his commission being transferred to the new commission. However, can he explain or share with me the basis of his confidence that the expertise and resources of the Mental Health Act Commission will be transferred to the new commission?

I am anxious that we have somebody in place with whom we can take forward the discussions that we have had with officials over the last year and a half to two years. We should bear in mind that when the Mental Health Act Commission was supposed to be transferred to the Healthcare Commission three years ago, we had discussions to try to safeguard this group of people and their expertise. We have had meeting after meeting on that and I have been assured by officials and Ministers that they value that expertise. What I need now is reassurance on that point from the new chief executive. I need to discuss this matter with the relevant people once they are appointed.

Does the noble Lord concede that all members of the committee need that reassurance? Will he share with us the contents of the documents on which he bases his reassurance?

They are not documents but discussions I have held as a chair of the Mental Health Act Commission. As such, my responsibility is to ensure that we carry on delivering the best possible service to detained patients and to retain the staff and commissioners who can deliver such a service. They are clearly saying to me, “We need leadership and forward planning and we need to be confident that we have a role in future”. However, at this moment in time that is not the case.

In the interests of time, I shall be extremely brief. I wholly accept the principle, having accused the Government on more than one occasion of establishing an intolerable quangocracy in the field of health, that a reduction in the number of quangos is important. But if the Government have examined, as I hope that they have, the enormous burden of work and responsibility carried by the Healthcare Commission, the Commission for Social Care Inspection and the Mental Health Act Commission over the past few years, how can they possibly expect the Care Quality Commission to fulfil all three functions without the establishment of three individual subcommittees or sub-commissions to look at each sector independently, with the parent commission acting in a co-ordinating role? I very much hope that the Minister will be able to say that that is a principle that the Government will accept. If they accept it, why not put it in the Bill?

That contribution does not leave much more to be said and it had the great merit of being a good deal more succinct than the contributions of some of the rest of us. Perhaps I may be permitted to respond to the noble Baroness, Lady Masham, and make a couple of other points.

Would it be appropriate for me first to respond on behalf of the Government? Time is moving on.

Noble Lords have eloquently expressed their concerns that social care or mental health may be marginalised within the new body. That theme has run throughout the discussions on the Bill. I assure noble Lords, as did my noble friend the Minister did at Second Reading and on several other occasions, that we have set the new Care Quality Commission’s functions squarely within the legislation. We have continuously made it clear in both Houses that the social care and mental health functions must have parity in the new commission. The integration of the three current commissions will not mean that social care or mental health are overwhelmed by health within the new body. These different and vital roles will be reflected on the board and in everything that the commission does. When the noble Lord, Lord Low, expressed his anxiety about the board some time ago—in fact, two Divisions ago—he built a case about lone voices that those reassurances have not yet satisfied. So again I say to him and to the Committee that board members will have a collective responsibility for the decisions made by the board, whose role is to ensure that the organisation delivers the business plan, as agreed. They will be held accountable for this and they will reflect the three different strands of the commission.

In relation to the comments on creating separate sub-commissions, we are bringing health, social care and mental health regulation together into a single organisation creating an integrated regulator. I feel slightly that one can never please the noble Baroness, Lady Tonge. The Liberal Democrats supported such a proposal three years ago, so I would have thought that she would be congratulating the Government on at long last seeing the light. As the noble Baroness, Lady Meacher, said, the proposal in the amendment carries a very great risk of creating “silos” within the organisation even before it gets to first base. This is what we must seek to avoid. The only way of preventing competition between the different elements is to create a single organisation with overall responsibility for the regulation of health, adult social care and mental health.

The noble Baroness will be aware that on the basis of the recruitment material publicly available so far and statements made by Ministers in another place, in the world of social care there is at the moment a deep sense that the likelihood of representatives of social care figuring among the senior management of the CQC is extremely low. Could she address that in her response?

I do not think that there is any evidence to suggest that. Indeed, in her exchange with my noble friend Lord Patel, the noble Baroness suggested that, because he had been given assurances verbally, they would not carry any weight. That is unfair and not quite how we normally conduct our exchanges. I hope that she does not mind me saying that. However, I agree with her about the advertisements, and indeed we discussed the issue yesterday. My noble friend Lord Darzi explained that an apology had been made, the readvertisement had been launched, and the whole thing had been put on a different track. That assurance has been given by my noble friend and I hope that we can now move on to the discussion we are holding this evening.

The commission will, of course, need expertise in particular areas. It may decide to set up committees with responsibility for specific matters. We envisage that much of this expertise will transfer from the current commissions, and the new body will build on this. The current commissions have developed excellent ways of working. Noble Lords have mentioned that on many occasions, and it is indeed the case. Engaging with those who use services and employing improved methodologies will inform and enhance the work of the new commission. Moreover, as my noble friend Lord Darzi said at Second Reading, we attach great importance to the role currently played by the Mental Health Act Commission. We will work with all three commissions to ensure that the body is effective at protecting the rights of all vulnerable groups under its remit. This will include those detained under the Mental Health Act, and we will stress how important it is that the skills and expertise required to carry out the Mental Health Act’s statutory functions, including visiting arrangements, are retained in the new body.

We have made provision for the commission to set up the committees and sub-committees that it feels are necessary for the effective discharge of these functions. However, we believe it is important that the commission, as an independent body, should be allowed to use these provisions flexibly rather than have imposed on it structures that it may not find useful. Here, I refer to our earlier discussion when noble Lords were concerned about the independence of the commission. This is an important element of its independence. It will need to work out what kind of bodies it should set up internally.

I hope that I have been able to reassure noble Lords that we take this matter extremely seriously. The provisions in the Bill are intended to give the new body the flexibility and independence to establish itself in a way that allows it to carry out its functions most effectively. I think that the commission would be wise to look at the proposals set out in the amendment tabled by the noble Baroness, Lady Meacher. They seem to be a very sensible way forward in dealing with the mental health provisions that she talked about so eloquently. With that, I hope that Amendment No. 25 will be withdrawn.

Briefly, although I can see where it comes from, I do not believe that the silo argument holds water. That is because we have a silo buster built in here in the form of the commission itself. It will be its job to integrate the work of its sub-committees, as happens on the board of almost every organisation of which one has had experience.

Although I give some weight to the staff insecurity argument, the obvious debating point is that if the Bill were to be withdrawn tomorrow, that would be the end of staff insecurity. The Bill is causing the insecurity and making people think about leaving, although in my experience fewer people actually leave than those who talk about doing so.

Towards the end of the Minister’s remarks, I thought that she might be leading up to giving me some comfort, but that turned out not to be the case. She gave some comfort to the noble Baroness, Lady Meacher, who spoke to Amendment No. 93, suggesting that a sub-committee for mental issues might be on the cards, but she offered no encouragement of the kind that I asked for; that is, for the commission to set up a sub-committee on social care. Without that encouragement to set up a sub-committee, the fears that have rebounded around the Committee that this is a downgrading of social care will not be dispelled, however many ministerial warm words are poured over us.

That is enough for tonight, but not enough for our full consideration of the Bill. We will return to the issue. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 26 not moved.]

On Question, Whether Clause 2 shall stand part of the Bill?

There are all kinds of areas that we could cover in debating clause stand part, but we have already spent a great deal of time on this clause and I do not intend to delay the Committee. However, I should like to take a minute or two to bring us back to first principles and to look once more at the proposed functions of the new commission.

I take my cue from the remarks of the noble Lord, Lord Ramsbotham, in our debate on 21 April, when he said,

“I am extremely concerned at what has happened to CSCI, which has been split in two. Half is going under education, as the noble Baroness mentioned, and is in danger of being submerged there under the style of an inspection or audit carried out by Ofsted, while the elderly will remain with the Department of Health together with mental health, which is yet another different function. The loser in all this is social care—the care of children and the elderly, both of whom have mental health needs quite apart from any other needs”.—[Official Report, 21/4/08; cols. GC 223-4.]

The noble Lord’s question was a fundamental one, to which we did not receive a proper answer. What is the rationale for splitting CSCI into two and dividing its expertise, as the Government now intend? What makes the Government confident that that split of CSCI’s functions will not result in a net dilution of regulatory expertise and the loss of professional cohesion—the cohesion created precisely because the work of CSCI, before the hiving off of children's services, embraced the whole field of social care, not just one part of it? If the Government intend to bring the regulation of health and social care closer together on the basis that each will gain from the other by being better integrated, why, at the same time, destroy what is—or was—a successfully integrated organisation?

One has to ask what expertise Ofsted has in children’s social care and exactly why Ministers think that Ofsted will add value to social care regulation. To me, the answer is not self-evident. There are already signs of strain in Ofsted in meeting the health and mental health care needs of children in care. The Children, Schools and Families Select Committee in another place has just been hearing evidence from the NSPCC and the British Association for Adoption and Fostering to that effect. Perhaps we need to remind ourselves that health and mental health represent new territory for the DCSF, the department to which Ofsted reports.

It may be thought that I am raising matters of principle unnecessarily; I do not think that I am. Sparing his blushes, while he is not in his place, I should like to cite part of the speech of the noble Lord, Lord Warner, at Second Reading. He said:

“I should own up to being the Minister who conducted the arm’s-length bodies review which in 2004 recommended that the Healthcare Commission and CSCI should be merged, so it is not my noble friend Lord Darzi who noble Lords should blame”.—[Official Report, 25/3/08; col. 478.]

I always hesitate before correcting the noble Lord, Lord Warner, but I am sorry to say that on this occasion, unusually, his memory has let him down. The document published by the Department of Health on 22 July 2004 entitled Reconfiguring the Department of Health’s Arms Length Bodies contains no such proposal. There was no proposal in that document to merge CSCI with anything. Still less was there a proposal to split CSCI in two. The document proposed a merger of the Healthcare Commission with the Mental Health Act Commission. The splitting of CSCI was nowhere even hinted at. On the contrary, it was explicitly stated that social care would remain CSCI’s responsibility. I shall quote briefly from the document:

“The Commission for Social Care Inspection will continue to perform a parallel role in social care to that of the Healthcare Commission in health ... any merger with the Healthcare Commission at this time would be a distraction from the heavy agenda of both sides and would impact on the ability of both to regulate providers and thereby protect patients and service users”.

The transfer of functions to Ofsted had nothing to do with the arm’s-length review and had nothing to do with any failure on CSCI’s part. Noble Lords may remember that it had its genesis in the then Chancellor’s 2005 Budget speech, in which he announced the merger of 11 public service inspectorates into three: one for criminal justice, the proposal for which was defeated in this House; one for education; and one for health. In other words, we are considering drastic action affecting some of the most vulnerable people in the country not for efficiency reasons but, in the first instance, to cut costs.

To be as charitable as I can be to the Government, I am the first to recognise that in the space of three or four years circumstances can change in a way that leads Ministers to take different decisions from the ones they first announced, but we need to be told why. We need to be told what the particular circumstances are underlying the decision to split CSCI into two and the reasons why such a split will not run the risk of weakening adult and children’s social services and, in the process, achieving the very thing that many noble Lords have said they fear—namely, the weakening of the voice that social care has at the board table of the CQC.

As usual, the noble Earl was admirably brief and to the point. As he will know, the transfer of responsibilities for children’s social care to Ofsted has already happened in the Education and Inspections Act 2006, in which I think we were both engaged. We were very concerned to ensure that the regulator who was created would concentrate on all aspects of children’s services. Indeed, that is in line with the overall policy objectives and the recent reorganisation of departments to reflect the Government’s wish to concentrate on children’s services and education in a coherent way. At the time, that seemed to be the right way to go in that, if you put together children’s services and education coherently, it made sense for their regulation to be in the same place.

Therefore, the key purpose of this Bill is to integrate the regulation of health and social care, reflecting the integration of the services locally and supporting innovation in joined-up service delivery. Noble Lords have, over a long period, advocated that, and indeed this was the way that health and social care was progressing. The proposal underlying the creation of the new commission is that it will build on CSCI’s good work. The Bill broadly comes from CSCI’s existing legal function and will be able to build on that.

I am sorry to intervene but I find doing so irresistible. During the passage of the legislation that integrated the regulators, I raised substantial concerns about the method of Ofsted’s regulation. In fact, I was sent by the noble Lord, Lord Adonis, to see the chief inspector to be reassured that the inspection would meet all needs.

What I say next I say simply because it illustrates the concern that we should all have. The regulation of services and delivery of services are different things. It is all to do with methodology. The methodology of Ofsted is very different from that of CSCI. I have found—I say this as a service provider; we have two schools that have been inspected by Ofsted and I have personal experience of my local school—that Ofsted regulates by a tick-box method of aggregates. CSCI regulated by looking at the whole situation, so that a variation on a certain set of levels could be taken into account. I think that I have quoted this before but Dame Denise Platt has said that there may not be enough bits of space in a room but if the atmosphere in the home is good, the staff are good and the people are happy, that can be balanced against the other bits of the regulation.

I say this now in order to endorse what the noble Earl, Lord Howe, is saying: that very different forms of regulation are being put together here. I think that is what the noble Baroness, Lady Meacher, was trying to illustrate, and I now understand that some bits of regulation are different from others. I say this so that it is on the record: I am not convinced, despite all I have seen, that the integration of the inspectorate—which was for a good reason, at the end of the day—has been successful in Ofsted. We therefore need to be incredibly careful in ensuring that the methodology of inspection, not the methodology of the combination of the services, is clear and related to the service being inspected rather than to a particular way of doing things that has worked in another area. What worked in schools with regard to education will not work in children’s homes.

The noble Baroness is right. Regulation and the delivery of services are completely different. The point I was seeking to make, although children’s services are not part of my brief, is that bringing together children’s services and education and then introducing regulation of the two was the way that the Government moved ahead. That is what we are seeking to do here. We recognise that the delivery of services has evolved, is evolving and is becoming integrated on the ground. It therefore makes sense that the regulation moves together in a coherent and integrated fashion.

I have said today, and it has been said by Ministers in the other place and by my noble friend the Minister at Second Reading, that that does not mean it is not recognised that none of the three services should overwhelm the others. The Bill allows that recognition. Various alternatives will need to be developed for how the regulation moves forward. That is not an easy task, and no one is suggesting it is. That is why we are going through it in such detail: because the service delivery is evolving, the regulation needs to evolve at the same time.

This has been a helpful short debate. I thank in particular the noble Baroness, Lady Howarth, for her contribution. I recall for the Committee’s benefit her wonderful line at Second Reading that rationalised regulation is not necessarily rational regulation—a line I wish I had thought of and used myself. There is a superficial logic and a congruence in bringing children’s services all under the same umbrella—I would not argue with that—but we are beginning to learn that, if we are not careful, it can conceal some huge misalignments. The noble Baroness, Lady Howarth, was quite right in all that she said about methodologies. The key to getting the new body working as it should is that the methodologies should be distinct where they need to be.

I thank the Minister for her reply. At this hour, it is appropriate that we move on.

Clause 2 agreed to.

[Amendments Nos. 27 and 28 not moved.]

Clause 3 agreed to.

Schedule 2 agreed to.

This may be a convenient moment for the Committee to adjourn until Tuesday 6 May at 3.30 pm. To those noble Lords who are dressed formally, I hope that they have a pleasant evening.

The Committee adjourned at 7.39 pm.