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Health and Social Care Bill

Volume 702: debated on Monday 16 June 2008

Report received.

Clause 1 [The Care Quality Commission]:

1: Clause 1, page 1, line 9, at end insert—

“(2A) Subsections (1) and (2) shall not have effect until the Secretary of State has made a statutory instrument containing an order to that effect.

(2B) A statutory instrument shall not be made under subsection (1) unless—

(a) the Secretary of State has commissioned a review, to be prepared with the aid of an independent assessor, of the case for and against, and alternatives to, the merger of the Commissions referred to in subsection (2),(b) the Secretary of State has published an assessment of the outcome of that review, and(c) a draft of the instrument has been laid before, and approved by a resolution of, both Houses of Parliament.(2C) The assessment referred to in subsection (2B)(b) must be published within three months of the passing of this Act.”

The noble Lord said: My Lords, in view of the fact that I have chosen “Statement afternoon” to do so, I seek not to detain the House for any more time than is necessary to move this amendment. I am sorry to have provoked a mass walk-out before I have said anything controversial. Later on, such few members of my audience as remain will no doubt join those who are departing from the Chamber. I will be reasonably brief and in order to be reasonably brief, I shall not spell out yet again the case for my amendment. At Second Reading I set out the case for not proceeding with this amalgamation and a number of noble Lords backed that in Committee. This really is the most modest amendment imaginable to deal with the difference of opinion over amalgamation. All I am asking is that when the Bill has gone through, Ministers spend a month or two taking another look at the arguments for and against and decide whether the amalgamation really is in the public interest. I could not do that myself because I am deeply committed to the view that it is not in the public interest. If the noble Lord, Lord Darzi, who has been very attentive and kind in listening to my arguments on this case, said, “I will do that”, all will be done and dusted—the Government could just go ahead and do that; the amendment is not needed in the Bill.

I will not make the case for why we need the amendment but I will deal with the case for “Why not the amendment?”. What has persuaded Ministers on this? I believe them to be persuaded; the noble Lord, Lord Darzi, is an honest man and he sometimes does surprise us but my understanding is that he is not likely to support the amendment. I will go through the arguments against. I am sorry if I am taking the noble Lord’s thunder in doing so. I was taught in my days in politics that you should always get your retaliation in first.

There are three arguments for not adopting the amendment. The first, which was set out in a letter to me from the Minister in another place, Ben Bradshaw, is that it will cause disruption to the staff of the three organisations being amalgamated; that is, delay will totally unsettle them and they will all go off and get other jobs. Many noble Lords have experience of amalgamations, mergers, changes in structure and so on and they will have heard this argument time and again. My experience is that it is invariably hugely exaggerated. With regard to the people in the Commission for Social Care Inspection, my understanding is that there are not an awful lot of jobs as social care inspectors going begging to which they could rush because there had been a month’s delay while the arrangement was being looked at again. As some noble Lords will know, I am quite involved—one of my less serious aspects—with horseracing and the Tote. For years—since the Labour Government first promised, in, I think, 1997, to sell off the Tote to the private sector—its employees have been in a state of suspension, not knowing whether the Tote would exist or whether their jobs would exist. Meanwhile, the Tote has gone from strength to strength: its profits rise and the number of employees leaving is not very different from the figures for anywhere else in the world. It manages to cope with uncertainty. Uncertainty is a fact of human life and most of us cope with it perfectly well. If the staff of the three agencies concerned were under tremendous pressure to go and work somewhere else I would understand the worry involved, but we are talking about only a month or two, so that is not a plausible reason, although it is the kind of reason that invariably finds its way into ministerial briefs. It is not true that uncertainty is involved.

The second argument against the very short delay that I have proposed is that the Bill has gone through the House of Commons, which expressed its opinion on the subject and passed the proposal, and it is not therefore for your Lordships’ House to stand in the way of the expressed will of another place. I will make two points on that. First, if I were a more eloquent person than, alas, I am, and I had managed to persuade Ministers that having another look at the whole thing was the right way forward and that we should therefore have a delay, would Ministers worry for a single second that there had been a vote in another place in favour of the proposal? Of course they would not; they would just say, “We have thought further and we are changing this”, and they would go back to another place, which would be happy to accept that, and it would be agreed to. This is really is a piece of constitutional dogma masquerading as an argument to suit ministerial convenience, and it will not for a moment wash.

In any case, let us suppose that we ran a political system where Ministers were, one way or another, incentivised to resist all possible change to all possible Bills by whatever forces—perhaps the Civil Service, perhaps other bodies, I do not know. If we ran a sensible system, it would operate as follows. The Bill would go through the House of Commons. Thereafter, it would be clear that there was not consensus in favour of what the Government were proposing and there would be arguments either way. It would therefore make perfectly good sense to have another, final, brief look at the Bill before deciding to proceed with the policy. There would be no need for an amendment to the Bill; there would be a commencement date and Ministers could decide not to commence if they were convinced that it was not the right thing to do. That may seem like constitutional outrage to some people here, but it seems to me a sensible way of doing business.

The third argument that I have heard advanced—I hope I am wrong about this in some ways—is that the new commissions have been agreed by the noble Baroness, Lady Young of Old Scone. She will be the chair of the new organisation and she has done it on the basis that what she is going to get is what is in the Bill and that it cannot be changed. Here I admit to a difficulty, because if anyone is going to take on this mess, I would prefer it to be the noble Baroness, Lady Young of Old Scone. It anybody can make silk purses out of sows’ ears, she is the person I would back to do that.

This goes back to the point that I made in Committee—when other noble Lords agreed—which is that putting in place a chair before a Bill has gone through the House shows a lack of wisdom. I raised the point with Ministers at the time and they said that it is not unprecedented. Of course it is not unprecedented and sometimes it makes very good sense. But when an issue is live in this House, it seems extremely unwise to agree a whole set of conditions with somebody under which they will take it, dependent on the Bill remaining unchanged, when the Bill has yet to be put before the House and the opinion of the House on it remains to be tested. I do not blame the noble Baroness, Lady Young of Old Scone, for insisting that she must have a free hand on the structures of what is going to go into this and that we cannot have any doubt whatever that it is going to go ahead. If I were in her shoes, which thank God, I am not, I might possibly take the same view.

However, it leaves the House in a most paradoxical position. If every single Peer in this Chamber now and hundreds more go into the Content lobby this afternoon, and if the noble Lord, Lord Darzi, the noble Baronesses, Lady Thornton and Lady Young of Old Scone, are in the Not-Content lobby, the view of the hundreds will count for nothing because they will send it back to the Commons who will send it back to us as originally drafted and we will have achieved nothing. That does not show the respect for this Chamber that I should have hoped from these Ministers and this Government. We should be able to make our views clear and we should be able to do it without the effective veto that I have just described.

I have reflected hard as to whether I should seek the opinion of the House on the amendment. On fine balance, I have concluded that that would not be the right thing to do. My amendment simply asks Ministers to look at this again. It may seem to be a tremendous demand but that is all I am asking. If Ministers oppose this today, even if we pass it in the House, it is a complete waste of time asking them to look at it again because they will look at it with a closed mind. Even if they do not send the Bill back to the other place and we submit it, all they will do is say, “We were right all along”. Ministers usually say that, and that is all that will happen if we vote them down this afternoon. Therefore, I shall not seek to divide the House this afternoon.

I have put my case as clearly as I can and I think that there has been some sympathy for it on all sides of the House. I just ask that before Third Reading Ministers look one more time at the arguments that have been put and at the weakness of the arguments that they have made the other way. I ask them to consider whether they can agree to my proposal or to a variant of it so that, if we go ahead, such a proposal will have the full consensus not only of this House but of the wider regulating community, and we will all be able to go forward in harmony. I beg to move.

My Lords, I have considerable sympathy for the arguments advanced by the noble Lord, Lord Lipsey. I agreed with him when we discussed these matters in Committee, and my reason for speaking now is to acknowledge the part that he, along with other Peers, has played in what has been a most interesting and dynamic process of change around this Bill over the past three weeks. During the Committee stage, great wisdom was brought to the subject by Members of this House and by Ministers and the Bill team because they listened carefully to the arguments.

To place the amendment of the noble Lord, Lord Lipsey, in context, one needs to look at the next three groups, which contain significant changes to the Bill. That they have happened is, in part, due to the pressure applied by the noble Lord, Lord Lipsey, among others, and we should acknowledge that.

I have extensive experience of being involved in mergers and I agree with the noble Lord that some of the arguments that have been advanced against a delay are not strong. However, although his amendment will not be passed by the House, it affords us an opportunity to ask for one thing. Before we get to Third Reading, this House should ask the existing commissioners to meet Members of the House to enable us to answer the question which, as is evident from the amendments before us this afternoon, has not yet been answered adequately—that is, what form should the commission take? We agree on the overall, broad, outline structure of the commission but it is clear that no one in this House has sufficient experience as a regulator in this field to know what the commission’s precise structure and format should be. As a result of the discussions that we had in Committee, we now know what we want the commission to do and we now have a set of objectives, which will be put forward by the noble Lord, Lord Darzi, in a few minutes, with which we can agree, but we still have a doubt about how the experience of CSCI, the Healthcare Commission and the Mental Health Act Commission can most effectively be brought together in this new body. I hope that I am not putting words into his mouth but I suspect that the noble Lord, Lord Lipsey, would wish to see that process take place between now and Third Reading. If that is his intention, he has my support and I thank him for raising the matter.

My Lords, I have enormous respect for the noble Lord, Lord Lipsey—at least, I always have done in the past and I have known him for a disconcertingly long period. However, the arguments that he put forward this afternoon in support of his amendment, which he told us at a very early stage in the discussion he was not intending to press to a vote, were perhaps some of the weakest that I have heard in your Lordships’ House. First, he employed a traditional gambit, which is to set up the arguments that you say that the opposition to your proposition are going to put forward and then knock them down, but not necessarily set out the most convincing of those arguments, but simply knock down three almost at random. Even when the noble Lord knocked them down, I found it slightly less than convincing.

He said that it is universally the case that the problems of delaying an amalgamation are exaggerated. Like the noble Baroness, Lady Barker, I have had considerable experience of mergers and amalgamations. I can tell him what happens when there is a period when nothing much is happening. People obsess about the implications for them personally. It does not necessarily mean that they rush to the nearest appropriate or inappropriate job, but they obsess about it. They obsess about the positioning of the desks, who has the largest room, and whether the carpets and natural light will be as good, together with all the substantive issues that ought to concern them.

Were the noble Lord to press the amendment to a vote—he has already told us that he will not—and it was passed, its effect would be to produce a period of three months in which very much less work would be done by either the predecessor commissions or the new commissions, because people would be obsessing about minor details. That in itself would be an unfortunate consequence.

There might have been a very good case for the amendment had the Government not already listened to many of the points made in Committee. When the Bill passes from your Lordships' House, we will have a very different Bill in terms of how the commission is set up and the objectives before it. Had that not happened, a case for delay—three months or maybe even more—might well have been justified, but the Government have listened and have responded. They have changed the focus of the commission; they propose to give it a whole set of clear objectives; they will have improved the Bill substantially. The main argument in favour of the amendment moved by the noble Lord, Lord Lipsey, has disappeared.

The noble Lord then gave us two other arguments that I cannot believe that my noble friend Lord Darzi was going to put forward: the fact that the House of Commons has spoken and the fact that the noble Baroness, Lady Young of Old Scone, has been appointed. Those arguments are not relevant to this point. The question is: do we believe that the commission as now proposed makes sense? Even if we have some lingering doubts about it, everyone is now working on the basis that the new commission will be established. It is difficult to see what will be gained by further delay so that a slightly dubious process can be gone through in which someone will weigh up the arguments and the Government will respond to them—no doubt with the closed mind that the noble Lord, Lord Lipsey, described—apart from three months of attrition while people contemplate their navel rather than carry out the health and social care inspections that are so important and so needed.

My Lords, I shall speak briefly on the amendment, because I, too, have lived through change; I have lived through the change of the National Care Standards Commission becoming CSCI. I will not repeat the arguments of the noble Lord, Lord Harris of Haringey, because he described clearly the kind of attrition that happens in organisations. I know that at the moment life is not easy at present in the Commission for Social Care Inspection in terms of staff changes and staff unease.

I admire the noble Lord, Lord Lipsey, hugely, because I was one of the people who spoke most vehemently about the need to prevent this change and, if we could not prevent it, to delay it. However, we are where we are. The Government have moved significantly. I say to the noble Baroness, Lady Barker, who has also made a huge contribution to the movement on the Bill, alongside the Ministers, that I hope that we make further movement on Report. That is what will convince us that the Bill will truly reflect the positions of health and social care going forward together.

As I have said, although this is about inspection, services will follow some of the issues designated by the inspections and we should not delude ourselves that they will not be greatly influenced by the way inspection goes—indeed, I hope that they will be. I am immensely grateful for all that the noble Lord, Lord Lipsey, has done to move this forward. However, because of the problems that a further delay would cause, I agree with the noble Lord, Lord Harris.

My Lords, I forecast that I would put my name to this amendment when we discussed the issue in Committee. I have listened to what has been said by the previous speakers on the question of delay. There are two reasons that worry me deeply about where we are. Neither of them, perhaps, arises straight from the Bill, but they are related to it.

The first is the word “inspection”, recently used by the noble Baroness, Lady Howarth. I reminded noble Lords in Committee that there are three separate functions involved in the role that we are discussing for the commission: regulation, audit and inspection. They are all needed and they are all different. The differences between them include the fact that it is proper for Ministers to be involved closely with both the regulation and audit of the structure and system. Ministers are involved in making the regulation in the first place, and in its performance as well. The audit will probably be of something that is ministerially ordained. However, inspection must be independent and objective if it is to be proper. It must not do anything to damage its objectivity in the eyes both of those being inspected and of the public, to whom reports are made.

What worries me about the establishment of the commission is that independence of that kind—the reporting of facts, independently judged—is not something that I see there. That is one reason why I am sorry at another casualty of the Chancellor’s Budget speech of 2005, which first saw the demise of both children’s care and mental health care under Ofsted. Now we have seen the demise of the rest of the independent inspectorate of adults, which has been rolled into another huge commission. My concern is as much about what has happened to the care and mental health support for children, because at the time there was not the same degree of fight about it as we had over the proposed inspectorate for justice, community safety and custody. At least the Government had not appointed a chief executive of that before it came to this House. In the Budget speech of 2005, the Chancellor announced the merger of these public sector inspectorates and described it as a cost-saving exercise. There is no cost saving at all. What has emerged from this Bill is evidence that you must have people in the commission dealing with social care, mental health care and healthcare to make it work. One has to support the noble Baroness, Lady Young—I understand all that she must be going through while this is dissected in front of her. However, this is not going to save anything.

My second concern is “compromise”. Although compromise may look convenient, it inevitably weakens all the parts that are being compromised. In 1996, when I was the Chief Inspector of Prisons, all the chief inspectors involved in the criminal justice system—the chief inspectors of prisons, the Probation Service, the police, court services, magistrates’ courts, and social services—looked at working together to see what things that needed to be reported on could be done together. The first thing we came up with was to ask: what information did each inspectorate need of each other in order to do the job properly; what information was available; what was difficult to get; and what was not available and why? We published this in a report that we put before Ministers saying, “This is an example of six different organisations coming together to tell you what is needed in order to improve the processes in the areas you are responsible for”. Where is that report? It is sitting on a shelf, because none of the Ministers involved was willing to take responsibility for seeing that all the others worked together.

What worries me about this proposal is that we are in the same situation and that the casualty will not be a paper put together on the subject of information, but social care for children and for the elderly. Therefore, while I hear all that has been said about how everyone wants to get on with this without delay and the problems of amalgamation, I beg that before the Government go ahead they are satisfied that all the casualties along the way have been properly catered for so that we do not end up with a compromise of three different systems, that we have not damaged others, and that we and the people we are responsible for providing health and social care to do not end up in a worse state than before the whole exercise started.

My Lords, I support the comments of my noble friend Lord Harris and the noble Baroness, Lady Howarth, in particular around the argument that there is never a good time for change. They both spoke about the changes that they have been involved in, and I too could relate the events involved in several changes. My noble friend Lord Harris gave us a good flavour of the effect of such changes. However, what has not been mentioned is that such a delay would be absolutely catastrophic for patients who are affected by the commission. They would be waiting, like everyone else, to see what came out of the review. It would be unforgivable for Members of this House to get involved in aspects of deliberation and argument that overlook the whole reason that the Government put together the main bodies that will form the new commission. If the noble Lord, Lord Lipsey, has any doubts or second thoughts, he should not press his amendment—I am sure that he will not do so—for that reason alone.

My Lords, I rise briefly to oppose, uncharacteristically, an amendment tabled by the noble Lord, Lord Lipsey, with whom over the years I have usually been in common accord. I do so as the then Minister who, in the way of the pantomime villain, actually proposed the merger of these three bodies. However, it is worth bearing in mind that that was as long ago as 2004, so the idea that this comes as a great surprise to everyone is a bit of a myth. The change was proposed for a number of reasons. It is fair to say, and with all due respect to the noble Lord, Lord Ramsbotham, that the work in the area of regulation and inspection that was done when I was a Minister revealed discernible mission creep in many of the bodies, as they say in the trade. They grew their functions and their budgets, and indeed many were rather skilful at doing so. There was a need to do a bit of horticultural pruning, and data collection was a good example. But to be fair to the health and social care organisations and some of the other arm’s-length health bodies, they got together in order to reduce the huge diversity and increase the commonality of data collection. There have been improvements, although more could be made.

Two areas with particular scope for improvement were commonality of approach and learning best practice in inspection and performance review from each other. The Healthcare Commission has done a great deal of work in this area, relying more on a risk-based approach and self-audit. CSCI could certainly learn a great deal from this. It is unfashionable to say, in any way, that any past body is less than perfect in every characteristic, but the truth is that bodies can learn from each other and improve their performance. Merging would here help to break down what Frank Dobson rather graphically called the Berlin Wall between health and social care. Merging the regulators is likely to help in that area.

I recall, when the 2003 Act was going through, standing in the same position as the Minister and being rather chastised from the Benches opposite about the need to move towards a merger of these bodies in due course. Around 2003, there was a degree of enthusiasm—particularly from the Liberal Democrat Benches, as I recall—for moving towards merging these bodies. We have come a long way since then and there is now a good case for merging. It has not been sprung on everybody. I totally agree with my noble friend Lord Harris: my experience of managing change is not so much that people rush off to get other jobs; they rest on their oars, wondering when the change will come and what they need to do, rather than knuckling down to make it. That makes managing those changes very difficult.

Finally, it is not for Parliament to micromanage change. This is the job of the Executive, once the decision has been taken to merge these bodies and the legislation has been passed. Parliament is not terribly well equipped to start determining the precise way to execute that change. By all means, criticise the Government if it is not done well, but for Parliament to intervene in that process is unlikely to be an effective way of securing good change.

My Lords, I will say a word or two more in support of the amendment of noble Lord, Lord Lipsey, whom I must now learn to call my noble friend, before it is finally withdrawn. I recognise that the Government have moved a long way in response to the many arguments that have been deployed over this Bill in Committee. There would be merit in the Government acceding to his request, from this point of view. The noble Lord, Lord Warner, is absolutely right: this merger has not been sprung on us or taken us by surprise. It was announced in the Chancellor’s Budget Statement in 2005 and, as I understand from the noble Lord, Lord Warner, it had been mentioned in dispatches before.

Having been announced by the Chancellor in 2005, it has, as far as I can make out, largely been a fait accompli. It has been given to us by government fiat. We have made progress on a range of issues in Committee, as will become clear on Report. Curiously, the one issue that we have been tiptoeing around is the rationale for the merger itself. Concerns have been expressed, perhaps most volubly by the noble Lord, Lord Ramsbotham, who has a good deal of experience in these matters. Some noble Lords have had those concerns assuaged by the moves that the Government have made.

However, lingering doubts remain and the Government could do themselves a considerable favour by acceding to the terms of the amendment in the name of the noble Lord, Lord Lipsey, taking a further look at the issue and carrying out a quick review of the kind proposed. We have been moving towards consensus, so a review that sets out more fully and clearly than has happened to date the reasons for the merger and the benefits that it will bring could well help to seal that consensus and ensure that the new commission moves forward strengthened in the knowledge that it has the full weight of informed opinion behind it.

Ministers will say that they spoke at length about this in Committee, but my recollection is that their responses largely took the form of saying, “Don’t worry. We’ll take the points you have made on board and attempt to deal with these matters through the way in which the commission is finally set up. You’ll see the fruit of that in amendments on Report”. However, we have not yet heard enough about the fundamental justification for the merger. At Second Reading and subsequently, I asked whether the Government had followed the recommendations of the National Audit Office for the merger of public sector regulators, whether they had undertaken due diligence, a cost-benefit analysis or a risk analysis, and whether they had established measurable success criteria for the merger. Unless I have missed something, I have not had a substantive response on those points. If we could get such a response by way of a review, that would ensure that the merged commission was much strengthened as it set out on its journey.

Finally, I am not too worried by the concern expressed by the noble Lord, Lord Harris, in particular, that if the review were to take place everyone would become obsessed and count the paper clips and the position of the desks and so on. As far as I can see, they are pretty well in that condition already; there is a state of suspended animation in the present commissions. That would not be extended unduly if a quick review were to take place; indeed, it could bring this issue to a quick and reassuring end. I hope that the Minister will give serious thought to the amendment.

My Lords, I have listened very carefully to the concerns of the noble Lord, Lord Lipsey, and his proposals in Amendment No. 1 in regard to a further review before the establishment of the Care Quality Commission. Because of the timetable for establishment, such a review would ensure a delay in the establishment of the commission beyond April 2009. Of course I recognise that the establishment of any new body as large as this one is a significant exercise. As pointed out by the noble Baroness, Lady Barker, the contributions to date by noble Lords will undoubtedly make the commission a more effective organisation.

However, there is an overwhelming reason why we should press ahead with the current timetable. Accepting the amendment would mean that Parliament would have to consider an independent review of the benefits of establishing the commission before agreeing to it by affirmative resolution. Although the timescale set out in the amendment suggests a rapid review, it is appropriate to remind your Lordships’ House of the general support for the principle of bringing together health and social care regulation. As Anne Williams, president of the Association of Directors of Adult Social Services, said when giving evidence on the Bill:

“so much provision is currently integrated and more and more will be … The public want to be assured that one body is responsible, and that it does not duplicate or focus on different things”.—[Official Report, Commons, Health and Social Care Bill, 8/1/08; col. 79.]

As my noble friend Lord Warner also pointed out, we have already had extensive consultation on these proposals. Central to that ongoing process was the 2006 consultation, The Future Regulation of Health and Adult Social Care in England. That document sets out the benefits of bringing together the regulation of health and social care, such as enabling greater consistency of standards, inspection arrangements and performance assessment. The consultation showed that there was general support for the move to an integrated regulator. In particular, consumer organisations, which represent those people who use the services, see the case for having a single regulator because it will also provide a clear focus for the public, who often find the boundaries between health and social care artificial. We have been working very closely throughout the process with the existing commissions on transitional planning and workforce strategy to ensure that uncertainty is kept to a minimum. As Members of this House have already said, delay now would lead to increased uncertainty.

My noble friend Lord Patel of Bradford pointed out in Committee that we risk losing the valuable expertise that we must maintain in the new commission if we do not now get on with the show. The same sentiment was expressed by the National Consumer Council, the Picker Institute and Which? in their letter to noble Lords:

“It is crucial that the transition towards CQC is well managed and sticks to the agreed timetable. We need to ensure that current good practice around engagement, together with the expertise and skills of the current regulators, is not lost by a prolonged transition process; this would not benefit anyone, least of all those who use health and social care services and carers.”

My noble friend Lord Patel also said that what is crucial now is that the shadow chair,

“shows some leadership by saying where we are going and how we are going to get there”.—[Official Report, 30/4/08; col. GC97.]

I am delighted that we have been able to secure a first-class shadow chair in the noble Baroness, Lady Young. I am sure she will provide the strong leadership that will ensure that there is a smooth handover next April. Fundamentally, the commission will help deliver safer and better quality care services for people who use them. We do not want to have to say to those same people that it will take the Government another period of delay and uncertainty to get to this point.

The regulatory framework that has enjoyed such excellent scrutiny in your Lordships’ House will support the kind of integrated, personalised services that we all want to see continue to develop, and I want to encourage that in my next-stage review. The noble Baroness, Lady Howarth, has pointed out that some were inclined to support delay not because they opposed the principle but because they felt that the timing was wrong or that the Bill as drafted would not give the new regulator the best possible starting point, particularly in relation to social care. We have listened to those concerns and brought forward many changes and amendments to the Bill: to introduce clearer objectives, to give the commission an explicit duty to involve and engage with service users and to give it the freedom to determine when and how it conducts reviews of services. I am delighted that the three current commissions have each welcomed those government amendments. We will explore these issues in more detail later on, but they should help reassure noble Lords that the framework is now in place to allow the establishment of the regulator to proceed.

There is no good reason to reconsider the case for the integration of health and social care regulation and the creation of the Care Quality Commission. Nor is there a case for subjecting the establishment of the commission to any further delay. I am therefore grateful to the noble Lord, Lord Lipsey, for highlighting that he will withdraw his amendment.

My Lords, I do not intend to prolong much more the last rites of this dead parrot save to make a couple of points in response to the debate. The noble Lord, Lord Harris, my old chum and sparring partner, accused me of choosing the weakest of the arguments that had been put forward against my amendment. If those are the weakest arguments, I would be grateful if he would explain to me after this debate why Ministers chose them and not other arguments that might have been more convincing.

I am not sure that I agree with my previous noble friend Lady Wall that patients worry day and night about whether the new commission to look after their care will be established. They are worried, as am I, about what will happen to them, and that is why I have brought the matter before us.

In the period up to next April and beyond, when the commissioners and their staff are worrying about the colour of everybody’s carpets and the size of their desks, who will be in charge and who will tell whom what to do? I am worried that, during that period, the progress that we have genuinely made in regulation in this field will come to a halt. Most particularly—this will be partly on my conscience because I feel guilty that I did not pick up this problem earlier and try to raise these issues when first the Government proposed this solution—I worry terribly that there will be some dreadful scandal and that infections in hospitals will again get out of control as today’s report from the Healthcare Commission warns, or that some old person’s home might not receive a visit from an inspector because his or her superior was so busy dealing with the amalgamation that they did not have the time to organise the inspectorate and that, in consequence, all the residents died. That would be on my conscience as it would be on that of all noble Lords who have chosen not to support the amendment today.

I take comfort from the many amendments that the Government have made to the Bill, all of which I regard as positive and helpful. I do not think that anybody who runs the commission could be unaware now of the danger of it becoming unbalanced as between the priority it gives to healthcare and that which it gives to social care. Knowing the noble Baroness, Lady Young of Old Scone, as I do, I am sure that she has taken that on board. Other amendments before us today may assist in this.

This will be no prolonged funeral, although I feel some regret and offer a heartfelt prayer that everything that I and other noble Lords have said during the passage of the Bill turns out to be utterly wrong and that the new commission is a fantastic success. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1 [The Care Quality Commission]:

2: Schedule 1, page 113, line 7, at end insert—

“( ) The making of appointments under sub-paragraph (1)(b), and the exercise of the power to make regulations in sub-paragraph (3), must ensure that the functions of the Commission relating to—

(a) review, assessment and investigation of each kind under sections 42 and 44, and(b) the Mental Health Act 1983 (c. 20),are represented in such manner and by such proportion of the members as the Secretary of State considers appropriate.”

The noble Earl said: My Lords, I shall speak also to Amendments Nos. 5 and 6. I return to a concern which we debated at considerable length in Grand Committee without reaching a conclusion. It is how we can make sure that the three principal spheres in which the new commission will operate—healthcare, social care and the operation of the Mental Health Act—will each receive a fair and appropriate amount of the commission’s time and resources, and that the culture and ways of working which characterise those three different spheres of regulation will be respected and promoted. I confess freely that this is a very difficult aim to try to pin down in an amendment, but I am equally clear that the difficulty of arriving at an adequate form of words should not be an excuse for our doing nothing. It is an extremely important issue.

I have been heartened, as I knew I would be, by everything that the noble Baroness, Lady Young of Old Scone, has said and done since the announcement of her appointment as shadow chair of the commission. She circulated a letter to Peers a few days ago, in which she gave some very helpful reassurances. However, for the purposes of today’s debate, we need to remember that the noble Baroness will not be chair for ever, and that we are legislating for the statute book. Therefore, we need to put some safeguards in place that will stand the test of time.

One of the reasons why formulating an amendment is so difficult is that while in our own minds we may conveniently separate health, social care and the operation of the Mental Health Act as discrete activities, we also know that one of the benefits of the new commission, if it works as we all hope it will, is that it will look more holistically at the way in which care is delivered in a given setting, and that its working methods will reflect and take account of the increasing convergence of health and social care and the crossovers that already exist between all three areas of care.

We have all acknowledged that while there are key differences between, for example, monitoring the welfare and rights of a detained mentally ill patient and assessing the welfare of residents in a care home, there are almost certainly ways in which each of those two kinds of regulatory activity is able to learn and gain from the other. The same applies to the regulation of healthcare as compared with that of social care. It would therefore be wrong to suggest that we want to preserve in aspic the methodology and culture of each of these forms of regulation, and that we somehow need to insulate them from change. Rather, we need to ensure that there are people on the commission and on its committees and sub-committees who have knowledge and experience of each field, who will take forward the development of regulation in those areas, and who will act as a defence against any potential erosion of the weight and emphasis that needs to be maintained on each principal sphere of activity.

We want to make sure in particular that the resources needed to deliver the effective regulation of social care and the activities currently undertaken by the Mental Health Act Commission should comprise an appropriate slice of the commission’s budget and manpower, and that neither of those activity streams will be at risk of becoming the poor relation of healthcare regulation. The undue ascendancy of healthcare regulation, despite everyone's best intentions, has to be a risk over the longer term.

The approach I have taken in these amendments is twofold. First, there should be a duty on the Secretary of State in making appointments to the membership of the commission to ensure a fair balance of disciplines in direct alignment with the commission’s key regulatory functions. Secondly, I suggest, without going quite as far as the noble Lord, Lord Lipsey, in his Amendment No. 8, that we can require the commission to take into account when establishing committees or sub-committees that the individuality of each kind of regulatory activity should be appropriately reflected in the overall way in which the commission operates. I say with great respect to the noble Baroness, Lady Howarth, that I do not think we need to be prescriptive beyond that rather generalised level. If the Minister were to accept Amendment No. 3, or something like it, I would support her very readily, but my problem with that amendment is that it singles out social care to the exclusion of the other spheres of activity and would tie down the commission to appointing one person, and one person only, as the “commissioner for social care”. For the reasons I have given, I feel instinctively that we should try to preserve flexibility in the make-up of the membership and that the balance of disciplines is what really matters. I shall, however, listen with attention to what she has to say.

I hope that the Minister will look constructively at these amendments and that she will understand that they are a genuine attempt to build in safeguards that will not prove to be an albatross around the commission’s neck over the longer term. The wording may not be right—it almost certainly is not—but I hope that it will provide a basis on which the thinking on this important issue can be taken forward. I beg to move.

My Lords, I have added my name to the first of these amendments, which is of a slightly different order from the other more prescriptive amendments in the group.

I think it right that not only the Secretary of State but future Secretaries of State should be reminded of the three different spheres, as described by my noble friend. In his customary way he has fashioned an amendment which would sit very comfortably in the Bill as it proposes using review, assessment, investigations and the Mental Health Act as prompts when appointing to the commission people with knowledge and experience in the three component parts that will form this new body.

I agree with the noble Lord, Lord Warner, who stated on the previous amendment that parliamentarians are not appropriate people to micro-manage. Throughout the Bill’s passage I have tried to ensure the independence of the Care Quality Commission and that it has as much room to manoeuvre as possible. I share the view of other noble Lords that we have an experienced and formidable shadow chair appointed, which I welcome. I thank her for her letter of 12 June in which she let Members of this House know the way in which she plans to recruit members of the commission. She has clearly taken on board the views expressed by your Lordships in Grand Committee and will relay them to the Appointments Commission. So far, so good, but, of course, memories fade and Secretaries of State and chairs of commissions move on. It is tempting to try to secure the future with prescription but I do not think that is right, especially when it comes to management structures. We do not know what the future holds and so often Parliament lags behind trends. We are in a situation of catch-up.

We are already seeing a coalescence of health, both mental and physical, with social care. We are seeing joint chief executive appointments covering health and social care, new professions emerging, patient pathways being more clearly defined and modern technology encouraging very different ways of working both clinically and managerially. Increasingly, healthcare will be provided not in institutions but at home. Individual purchasers will commission healthcare and social care and definitions will change. Therefore, I am very reluctant to enshrine a management model, a straitjacket within which the CQC will have to work. Management should be dynamic, should reflect changing social and economic trends and encourage vision within the organisation. It should not constrain but liberate. Above all, it should be designed to do the business efficiently and with care and not be encumbered with an outdated management structure enshrined in law.

So, reluctantly, I do not support the more prescriptive amendments but think that the first one would act as a useful prompt to ensure that the Secretary of State is reminded of the comprehensive remit and duties of the CQC when recruiting members.

My Lords, I shall speak to Amendments Nos. 3 and 4. One of the skills one learns in social care is group work. Those of us who have worked fairly closely together in the group that has taken this Bill forward have thought through these arguments time and again, and we have been considerably influenced towards the picture that we now see of how social care is moving forward.

I remind your Lordships forcefully that this is not where we started, and not where the outside world is in its view of the comparative positions of social care and health. We have had reassurances in this House, and I think that we have convinced ourselves that the Bill could give proper emphasis to all the parts. In matters of social care I usually include mental health because my own training included it. That is another issue that I am bound into and it is in close alignment with health and hospitals—the links are all there together.

I agree with Members on the opposite side—I say that because of the geography, not because of anything political, she says anxiously—that we have to move forward in different ways. I say that in order to emphasise that outside the walls of this now comfortable group which has come through to this position there is still a great deal of anxiety about where mental health and social care will reside in future. I take heart from the assurances of the noble Baroness, Lady Young of Scone, who has impressed even me by her strength of leadership already in how she has moved all these issues forward. I can hope only that this will continue.

However, there are other reasons for being absolutely clear about what prescription might be. The amendment moved by the noble Earl is prescriptive, if not tightly so. We are in the position of decisions being made—or rather, remade or even re-remade when you think how often social care has been discussed in the past five years. It is crucial that we get it right this time, and that having done so, we will not have to be concerned with the issues of disruption outlined by the noble Lord, Lord Harris. Continuity of service and personnel is what really counts in patient-client-people care, but there has been disruption in recent years.

I am proposing a dedicated social care commissioner in the amendment, but if I am honest I am not really convinced by my own arguments. As I said in an e-mail to the noble Earl, it is important to reinforce our view. I wish that I had been able to support the noble Lord, Lord Lipsey, earlier. I have been so influenced by the group work in this discussion that we find ourselves at a different place. That is probably what the noble Lord, Lord Warner, was trying to convince us of in his speech.

I repeat in all seriousness that we are in a different place, which has to be maintained in the outside world. I have only this week been involved in discussions about the place of social care and nursing services for the elderly, and the worry in some places that nursing homes are becoming more nursing than homes. I know that old people are becoming frailer but they are losing that home environment in their need for medical care as they become increasingly more frail.

These are the kind of things that I want us to maintain. That is why it is vital that on the commission there are people who understand that and who have lived through and have the experiences of some of the people on the ground, who, when you visit and talk to them, tell you time after time that they want personal, human care, not a medical centre. That is the crucial difference between these services. Social care is about individualised, often very long-term care, often at home. Medical care may be long term, but usually it is a short experience in hospital or with your doctor. They are crucially different elements. They overlap in places but people need to understand both. I certainly would not say that there should not be someone from healthcare on the commission, but there must someone from social care because it shows where the danger is.

On the issue of human rights in Amendment No. 4, it would be useful if a member of staff was appointed to the new commission to fill the statutory position of human rights director. As is the case with social care, the human rights of the people who use social care and health services has been a continuing issue in our debates on this Bill. Having one senior officer specified in the Bill would give that person real authority within the commission to advise it at a senior level on its responsibilities in relation to human rights. This is an amendment I really believe in. It would also act as a strong reassurance for the new commission to place human rights at the centre of its work and activities. The argument against this proposal is simply put. It would be too great an interference with the structure of the new commission to set down specific provisions in the Bill and the commission would be able to get on with its job without interference from Parliament. Once again this proposal has a clear, recent legislative precedent. The Commission for Social Care Inspection, before its responsibilities for children’s social care were taken up by Ofsted, had the statutory position of children’s rights director set out in the Bill. Drawing from that experience, Dame Denise Platt has said that having an officer whose existence was established by Parliament gave that person real clout within CSCI in keeping children’s rights issues at the fore of its policies.

On wider human rights issues, it is pleasing that during the passage of the Bill the Government have brought forward amendments partially to close the human rights loophole in relation to publicly funded residents in private and voluntary sector care homes. This group of residents will now have the protection of the Human Rights Act, which is most welcome. But that still leaves the group of self-funders, as we mentioned in Committee.

My Lords, I am pretty certain that the YL case conundrum has not yet been sorted out. This is a problem both for this Bill and the Bill that is being debated in the Moses Room at the moment. It is a very deep and worrying problem which has not been sorted out. The Government have said that they are going to try to sort it out but they have not done so yet.

My Lords, I am most grateful to the noble Earl, who reinforces my argument for someone in the commission to look after human rights. This would be only one part of the role envisaged for the human rights director. That role would also encompass mainstreaming, the rights of detained patients and others deprived of their liberty under the Mental Health Act. There will be many issues in relation to human rights within the health sector more generally on which this officer could advise the commission at the highest level and ensure that the information was accurate at every moment. Having the post designated in the Bill would give such a person strong and clear authority.

We have another precedent in relation to human rights. During the passage of the Human Rights Act, a position was established which is held by my noble friend Lady Campbell in the Human Rights Commission. So I think there are precedents for this kind of measure. It would be wrong to bind the new commission and its management excessively in the Bill, as has been outlined, but the measure clearly has a precedent in the old commission and I hope that the House will support that position.

My Lords, I support the amendments that my noble friend Lady Howarth supports and the amendment that she is not sure whether she still supports. I support Amendment No. 3 because, while I absolutely agree with the noble Lord, Lord Warner, that legislation should be about “what”, not “how”, in this case there is a slightly lateral reason for supporting the idea that there should be a commissioner for social services on the commission. I have already mentioned the problem of children under Ofsted. If such a commissioner had to be on the commission, there would be a jumping-off point for the looking after of children, if that were deemed appropriate, because the commissioner would already be in place and you would not have to start again from scratch or search around within Ofsted.

My Lords, at the risk of appearing to be wimp of the week in your Lordships’ House, I prefer Amendment No. 2 in the name of the noble Earl, Lord Howe, and Amendment No. 3 in the name of the noble Baroness, Lady Howarth, to my Amendment No. 8. They achieve much the same thing without injecting the structural over-rigidity that noble Lords have pointed to. I am not yet totally convinced that we have the best solution, as opposed to a better solution. Perhaps I may address the Minister specifically: given that we are now very much on consensus grounds, might it not be appropriate for the noble Earl to sit down with the noble Baroness, Lady Young, and those of us who have expressed a particular interest in this, including the noble Baroness, Lady Barker, to see whether we can find an even better solution to the problem at which these amendments are aimed and introduce it at Third Reading to enable the Bill to go through with a wider consensus than seemed likely at one stage—although it is up to the noble Earl whether he presses the amendment to a Division?

My Lords, I am sure that the Minister will realise that we are all after the right consolation prize. I very much agree with what my noble friend Lady Howarth said. We have worked through this as a team, we are where we are, but we all had a great sympathy with where the noble Lord, Lord Lipsey, started from. Now we are trying to see whether in Amendment No. 2 we can at least get some balance of focus among the members of the commission who discharge its functions and make a variety of other stronger changes in the amendment of my noble friend Lady Howarth. Amendment No. 2 is the practical one, in my view, and I share the view of the noble Lord, Lord Lipsey, that we should at this point seek some consensus that we can agree to bring back, to reflect our continuing anxieties about the focus of the commission.

My Lords, my intervention will be extremely brief and I cannot but say somewhat wryly that in 19 years in this House I have learnt conclusively that one can never predict with any confidence that entries in one’s diary will be fulfilled when interesting developments, such as the intervention of Statements of various kinds, almost inevitably disrupt the timetable on which one would hope that the issues that one wished to speak about could be resolved.

However, I have great sympathy with Amendment No. 2, ably moved by the noble Earl, Lord Howe, and supported by others. I confess that when the Bill was first drafted, I, like many others, including the noble Lord, Lord Lipsey, and my noble friend Lord Ramsbotham, felt grave concerns about the merger of these very important bodies, each of which seemed to have clear-cut and distinct functions. The more I have listened—from time to time I have been concerned with the discussions in Grand Committee—the more I have recognised that there is a very substantial virtue in the merger of these bodies. In any event, this is now water under the bridge. Initially, I felt strongly in favour of Amendment No. 8, put forward by the noble Lord, Lord Lipsey. If this merged body is to function effectively, it might be necessary to have three separate commissions. But that is contrary to the whole ethos of the Bill. Integration is crucial for this whole issue; that is, a closer understanding and mutual interest between those concerned with the regulation of health, those concerned with the regulation of social affairs and those concerned with mental health.

Many years ago, I chaired the Nuffield Provincial Hospitals Trust meetings on communication between doctors in various branches of medicine, and on communication between doctors and members of other professions, and one comment has stuck in my memory. It was of a social worker speaking to a doctor, who said, “I can’t hear what you are saying when what you are rings so loudly in my ears”. Such a lack of mutual understanding quite often prejudiced the collaboration between doctors and social workers. The situation has vastly improved.

The crucial aspect of this Bill, which is enshrined in Amendment No. 2, is that within this commission there should be individuals who are experienced in and knowledgeable about health, social care and social matters and, also, those who have got experience in mental health. The membership must reflect that kind of interest. If that is achieved, it is likely that the integration will result in a much closer collaboration and mutual understanding between the various branches of work to which I have referred. For that reason, I strongly support the principle outlined in the amendment tabled by the noble Earl, Lord Howe, and others. The crucial thing is that that kind of membership will be achieved within this commission in order to develop the integration which everyone wishes to see.

My Lords, I, too, support Amendments Nos. 2, 5 and 6, to which I added my name. The noble Earl, Lord Howe, clearly articulated the arguments for these amendments. I want to put on record my reasons for having shifted my position since we last debated these issues. In Committee, I pressed for a mental health sub-committee to try to make absolutely sure that the role of the Mental Health Act Commission in relation to detained patients was not lost. Others argued for a social care sub-committee or for specific work strands to be represented on the commission itself.

I thank Ministers for our very helpful discussion since the Committee stage on this issue and many others. They are clearly well aware of the concerns, in this House and elsewhere, about the potential for acute health services to dominate the CQC, if only because those services have such enormous public interest and considerable problems, as we know well.

I have become conscious of the need for flexibility within the CQC as, over time, services within the country and the role of the CQC evolve. Even at this stage, the remit of the CQC to regulate services delivered to individuals and small groups and to hospitals and large organisations may require an organisational structure that will not, in fact, fall neatly into health, social care and mental health. For example, taking one possible scenario to illustrate a point, one could envisage a structure with five work strands: individual rights, hospital services, community homes, commissioning, raised by the noble Lord, Lord Warner, and perhaps prison health services. In such a structure the individual rights strand could cover detained patients in psychiatric units, but also individuals whose rights are protected by the Mental Capacity Act, very much in the social care field. However, they have problems very similar to those of detained patients—they are, de facto, detained and they are often given medication without informed consent either because they are not capable of giving that consent or because they are alleged not to be capable. Another group of people who might be covered in that single strand of individual rights could be, for example, people on community treatment orders who have not been covered by the Mental Health Act Commission because those orders do not come into effect until the autumn of this year. Things are changing year by year.

I hope that I have said sufficient to explain why I have come to the conclusion that the one thing we must not do in this House at this time—we are not capable of doing it—is to try to be specific about the structure of the commission and sub-committees on the CQC. I therefore strongly support Amendments Nos. 2, 5 and 6. Those amendments take account of that vital flexibility. I would be concerned about having another jig at this because the incentive for a numberof noble Lords is to try to be more specific. That would be unhelpful and would not be in the best interests of patients and service users in future.

My Lords, my name is not added to any of these amendments. The reason for that is that I do not want a consolation prize. I am clear about what I want: a commission whose objectives are sufficiently clearly set out that its purpose is unmistakable and one which involves the right people making those objectives become a reality. I do not underestimate the difficulty of what is being attempted here. I hesitate to say this in front of the right reverend Prelates but—this follows on from the comments of the noble Lord, Lord Walton of Detchant—someone once said to me that trying to get health and social care groups to talk to each other in a meaningful way was like trying to get one bunch of people who believed that health professionals are gods to speak to another bunch of people, social workers, who have strong doubts about the existence of god but who are absolutely certain that, whatever else he is, he is not a health professional.

The standing of any regulator depends on the way in which it is set up—the objectives that are given to it and, often, the strength of the personalities and depth of experience of the people who go along to it. One problem is that we do not know who will be involved at any one time; we could have someone who was extremely forceful and knowledgeable about mental health, which might make us feel differently about the rest of the composition. We also need a body that is sufficiently resilient to be able to advise government when their policy is wrong and withstand the pressure that can fall on regulators when scandals happen. Scandals are one of the main drivers of policy, particularly in health and social care. We need a strong body that can ride out the storm of a scandal and keep true to its strategic objective.

I am not convinced that we have got an answer but I am convinced that we need to set out in statute the composition of the commission. That is why I would like the opportunity, between now and Report, to find out from the existing commissioners what, in their experience, has enabled them to do their jobs as well as they have done. In particular, I wish to find out from them what enabled them to be proactive and what made them sit up and think afresh. Has it been coming into direct contact with users; has it been doing long-term work with subgroups of people; or has it been the dynamic process of bringing different people together and moving them forward?

I want to end up with something like Amendment No. 2, which will mean that at any point when a strategic or major decision is made there is somebody who comes from a background sufficiently different from everybody else in the room who has the power to say, “No, what you are doing is wrong. Think again”.

However, I should still wish for the opportunity to talk to Ministers and the existing commissioner to make sure that finally, we get this right.

My Lords, I support Amendment No. 2 and what my noble friend Lady Howarth of Breckland said regarding the special nature of personal human relationships in terms of social care. There is concern that culturally, as a nation, we have so far undervalued and misunderstood the nature of that special relationship that we need to be very careful that that status is not in any way undermined. I was not a part of the group working through the Bill in Committee, for which I apologise, and I know that these thoughts were well represented.

Although I know that we are dealing with adults here, perhaps I may refer to the experience of children. I was at a meeting earlier today where a foster carer had two 13 year-old foster children with her. She said that when they came into her care they had a 30 per cent attendance rate at school; currently in her care, they both have a 100 per cent attendance rate and are doing very well in their studies—one wishes to go on to university. But in three years’ time, at the age of 16, they may have to move on from her care. Some 25 per cent of young people in care leave at the age of 16. I know that the Government are taking admirable steps to address this, but it will be a very long process.

If one compares what happens on the Continent—in Denmark, for instance—where a young person can be looked after in the same placement until their late 20s if they wish to, one sees that we have not recognised that enduring, long-term relationships can be so important in achieving what we wish. These children bear the cost of these long-term relationships not being valued by entering the criminal justice system and failing in various other ways; the adult population bear the cost of having to care for them in hospital when they might have been cared for at home if the necessary priority had been given. I am very worried about the status of those front-line people delivering the relationships which enable social care to function. There needs to be a recognition of the cost involved and that the best input into these carers is needed—foster carers in this case, and adult carers of other kinds.

I look forward to hearing reassurance from the Minister, which I am sure will be forthcoming. I also see that the new leader of the commission is here, so this is an opportunity to raise these issues with her.

My Lords, I was going to support Amendment No. 8, tabled by the noble Lord, Lord Lipsey. I do not see that the demands of integration, which are a real potential strength of the commission, are incompatible with the need for specialisation. Indeed, no cake is indivisible; it has to be split up in some way or another. The main board of the commission will probably need specialist advice on issues dealing with health, social care and mental health. It is the role of the main board of the commission to bring those streams together in an integrated way and achieve cross-fertilisation.

My position has moved somewhat, as has that of other noble Lords, as the debate has gone along. Indeed, it has moved further in the course of this debate, as I shall indicate in a moment.

As discussions have taken place between Committee and today, I have been keen to see that we are not too prescriptive about what we put in the Bill and that we leave the new commission room to make sufficiently flexible arrangements as to its structure so that they can be changed over time to meet changing circumstances. That does not absolutely preclude putting something definite, such as specialist committees, in the Bill. For example, the Commission for Equality and Human Rights, which is often referred to in this context, has a disability committee which has been established for five years and the question of whether it should continue at the end of that period will be subject to review. We could do something like that in this Bill. However, I am persuaded that we should not do anything too prescriptive, and perhaps Amendment No. 2 will achieve that.

I think—I should be glad if the noble Earl, Lord Howe, would confirm this—that Amendments Nos. 2, 5 and 6 hang together, so I would not want Amendment No. 2 to be agreed to without Amendments Nos. 5 and 6. They refer to slightly different things and stand together as a package. However, what has most decisively caused me to shift my position further today is the fact that the noble Lord, Lord Lipsey, no longer wishes to press his Amendment No. 8. Indeed, he pre-emptively withdrew it even more forcefully than he withdrew Amendment No. 1.

My Lords, I have not withdrawn my amendment. I said that I preferred others and that if another—or the process for finding an even better one—were accepted by the Minister, I would then be minded to do so.

My Lords, I apologise to the noble Lord for reading too much into what he said but I am very happy to align my position with his. If the Government could come up with a formula that took account of the need to recognise the respective fields of health, social care and mental health in the commission’s structure—indeed, if they are not able to come up with a formula today but would, as the noble Lord suggested, have further discussions with interested Peers with a view to getting the right form of words on which we could all move forward together—I should be very happy to support that position.

My Lords, I apologise for not taking a very large part in this debate but, as your Lordships know, a lot of competing Bills have been going through the House simultaneously and my time has been taken up with the Criminal Justice and Immigration Bill. However, things have clearly moved on and I have very much kept in touch with what has been said. I had enormous concerns at the beginning, very much along the lines of those of other people who have spoken today, but I have been impressed by the extent to which everyone has been persuaded along this road. I should make it clear that this approach of amalgamating a number of bodies—what I call the “Lord Carter of Coles process”—has been going on throughout my time in your Lordships’ House in a number of areas, including legal services, equality, the criminal justice system and communications, with Ofcom; this is another one.

I should have been very much in favour of a number, if not all, of these amendments—in particular, I should have liked to support the suggestions put forward by my noble friend Lady Howarth—but if you are setting up this sort of commission and inspectorate, is it really sensible to give one group special attention over and above the others, as we have heard already with regard to the disability group? There is bound to be a feeling of inequality.

What I have picked up, as has everyone else, is that we need to ask the Government to think through something that will meet those needs, because the provision is clearly not yet perfect. It is important that human rights are made explicit in the Bill. I very much like the phrase used by my noble friend Lady Howarth: the problem with nursing homes is that they have nursing but alas, in many cases, are no longer seen as homes for the elderly and those requiring full-time care. They do not get as much attention as they would if they were in their own homes.

We are down this road. The Government are determined to get all these groups to work together. They have been planning it in all the different areas that I mentioned ever since I came into your Lordships' House. That is their pattern. We have gone along with it to a certain extent and in some cases have approved the path that we are on. I have and will continue to have my reservations about what has been done, but we are where we are, as has been said by others, so I support the amendment.

My Lords, I recognise the need for the right competencies and expertise in particular areas of the commission’s work. I also understand and support the intentions behind most of the amendments.

As has been pointed out, last week the shadow chair of the Care Quality Commission—the noble Baroness, Lady Young—wrote to Peers signalling her commitment, working with the Appointments Commission, to ensure that the collective skills, expertise and background experience of the commission’s membership reflects the importance of mental health and social care as well as health and other users’ interests.

As the noble Lord, Lord Walton, pointed out, our purpose here is to achieve the right competencies to achieve the right integration. However, the amendments in this group reflect different approaches to ensuring that the Bill reflects that crucial aim.

I have some sympathy with Amendments Nos. 2, 5 and 6, proposed by the noble Earl, Lord Howe, and supported by the noble Baronesses, Lady Cumberlege, Lady Murphy and Lady Meacher. They propose flexible mechanisms which seek to ensure that the commission’s chair, members, committees and sub-committees collectively represent the range of the commission’s statutory functions. I will have to reflect on whether the noble Earl’s approach, which focuses on the commission’s vital role in monitoring the use of powers under the Mental Health Act and its review functions specifically under Clauses 42 and 44, really delivers the desired result. However, I applaud his ambition to secure proper representation while maintaining flexibility for the commission itself to decide how best to deliver its statutory functions. I am delighted to have heard that in recent days many noble Lords have acknowledged that it is vital for the commission to maintain that flexibility.

I appreciate the intention behind the alternative model proposed by the noble Baroness, Lady Howarth, in her Amendments Nos. 3 and 4, which is to ensure that social care and human rights are properly represented within the commission’s governance. However, I am not sure that the proposed mechanism to achieve that end is through legislation requiring specific posts. Also, although I agree with the intentions of the noble Lord, Lord Lipsey, in his Amendment No. 8, I do not feel that the right way is to create separate sub-commissions to achieve that purpose, each representing one of the current three commissions.

There is no doubt that the new commission will build on the expertise of the three existing commissions, while maximising the advantages of integrated regulation. As we said in Grand Committee, we envisage that much of the expertise will transfer from the current commissions.

However, rather than creating silos—which we are trying to break here—in the shape of the sub-commissions that the noble Lord proposes, the new commission needs to take the existing differences into account and build on the best of each of the current commissions to release the potential benefits that we all aspire to achieve; for example, the benefits to the provider of both healthcare and social care services, and the benefits to the user of seamless regulation across their care pathway. Once again, I believe that it must be for the commission to decide how best to structure itself and deliver its functions, be that through sub-committees, specific posts or other mechanisms. After all, we are trying to create an independent regulator—something that I know that noble Lords fully support.

I remind noble Lords that the Government have sought to reassure all sides through the Bill process that social care and mental health interests will not be lost in the new commission. I hope that the fact that the Commission for Social Care Inspection and the Mental Health Act Commission welcome and support government amendments will provide further reassurance, in particular to the noble Baroness, Lady Howarth, and the noble Lord, Lord Lipsey. There are already further necessary checks on the Care Quality Commission in the Bill. The current drafting explicitly requires that the commission report annually to Parliament and the Government on the provision of adult social care services, on the exercise of its Mental Health Act functions, and on the way in which it has exercised its more general functions.

Once again, I stress that I have sympathy with noble Lords’ efforts to ensure, through various approaches, that the commission’s governance structures will reflect the skills, expertise and focus needed to carry out its full range of functions, without the focus of any one of them being at the expense of any other. As I hope I have made clear, while I do not support amendments that would impose inflexibility on the commission in the way that it performs its statutory functions, I support noble Lords’ intentions and am happy to reflect on this debate and seek their thoughts further, prior to bringing this back for Third Reading with amendments that will fulfil their aspirations. With that reassurance, I ask noble Lords not to press their respective amendments.

My Lords, I am grateful to all noble Lords who have taken part in this debate, and particularly to the Minister for his encouraging reply—encouraging in so far as he agreed to reflect on my amendments, from which I take heart, and in his acknowledgement that the issue of the commission’s membership is important.

I believe that all noble Lords—especially perhaps the noble Baroness, Lady Barker, and the noble Lord, Lord Walton—were clear that we need to focus on the composition of the membership. The question is how we achieve precisely what we all want. The noble Baroness, Lady Barker, made the very helpful suggestion that we should talk to existing commissioners to see what has made the difference for them in performing their respective roles.

As the Minister has said, the challenge is to avoid undue prescriptiveness and to ensure sufficient flexibility in whatever wording we look for. The noble Lord, Lord Low, was absolutely right about that. If the Minister is willing to search for consensus between now and Third Reading, I am more than happy to join him in that endeavour. I am encouraged by the contributions from noble Lords to believe that we have the basis for such a consensus. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 3 to 6 not moved.]