My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest as honorary parliamentary adviser over many years to the Royal British Legion.

The Question was as follows:

To ask Her Majesty's Government what representations they have received from the Secretary General of the Royal British Legion about vaccines used by the Ministry of Defence during the 1990–91 Gulf War and the renewed call for a full public inquiry.

My Lords, the Royal British Legion continues to campaign for such an inquiry. However, the Government are not convinced that a public inquiry would help. The possibility that we may look again at this matter has not been ruled out but, in the present circumstances, it is only through the programme of research initiated by the Government that we are ever likely to be able to establish the causes of Gulf veterans’ illnesses.

My Lords, I am grateful to my noble friend. Is it not a deeply serious parliamentary matter that, 13 years after the conflict, so many of our troops, some now terminally ill, are still left with medically unexplained illnesses? Are not the Government's frank admissions on 9th October—that medical record-keeping was abysmal and that an unlicensed vaccine was used on our troops—also cause for grave concern? As the MoD does not know what vaccines were given to whom and when, Porton Down's tests on animals cannot possibly have replicated the immunisation programme as administered. So how can it possibly be determined whether the vaccines were safe in any particular case? Surely the Secretary General's compelling case for a public inquiry now deserves a positive response.

My Lords, in answering my noble friend's question, I acknowledge the tremendous work that he carries out with the Royal British Legion on behalf of Gulf War veterans. Although we are aware of the tremendous frustration felt by Gulf War veterans in the years since the conflict, my noble friend, of all people, will appreciate the work undertaken by this Government since we came to office in 1997. We have initiated scientific research, provided medical help, given information and made that information available and transparent, and we have provided substantial financial assistance. We have acknowledged the problems of the poor record-keeping that occurred in 1990–91, as referred to by my noble friend. Indeed, we placed that in the public domain. In the intervening years, this Government have made many improvements to record-keeping.

In an Answer to my noble friend on 5th November, we said that, although the Government were not convinced that a public inquiry would help to answer the basic question of why Gulf veterans are ill, we have not ruled out the possibility that we may look at the matter again if circumstances change.

My Lords, can the Minister explain why the combined anthrax and pertussis vaccine was used to immunise troops in January, February and March 1991, given that the pertussis vaccine was not licensed for use in the United Kingdom and that the test results of the combined vaccine on mice resulted in severe weight loss, although guinea pigs showed no reaction? Furthermore, the then Deputy Chief Medical Officer, Dr Metters, recalls advising the MoD on 21st December 1990 of the importance and relevance of the information from the National Institute for Biological Standards and Control, stressing his own concerns and those of the institute. What were the reasons for going ahead with the immunisation programme when such serious concerns had been reported to the MoD and the Department of Health?

My Lords, the noble Lord, Lord Vivian, will know that the fact that a vaccine is unlicensed does not mean that it is untested and therefore inherently unsafe. He will also know that licensing procedures cannot be accelerated; hence, there was no possibility of obtaining a United Kingdom licence for any previously unlicensed products in the six months between the Iraq invasion of Kuwait and the coalition campaign to liberate it. Anthrax was licensed, as the noble Lord acknowledged, and pertussis was licensed for children but not for adults. As we said in our Written Answer of 9th October to my noble friend Lord Morris, we do not know whether or not heed was taken of the concerns expressed by the Chief Medical Officer. The test results referred to by the noble Lord, Lord Vivian, are interim results published at Porton Down. We await the final results at the end of the year.

My Lords, I share the indignation of the noble Lord, Lord Morris, in that it appears that the Government still do not know the consequences of their vaccination programme of some 12 years ago. Indeed, the noble Lord's Written Question, put to the Minister in January this year, was not replied to until October. That demonstrates that the facts and figures were not available to this Government.

Further to the question asked by the noble Lord, Lord Vivian, what was the status of those vaccines? The Minister's reply to the Written Question stated that it was offered to all personnel. Was that an offer that they could not refuse or was it a vaccine that was genuinely voluntary? What is the current status?

My Lords, the reason for taking so long to answer my noble friend's Question—it was tabled in January and answered on 9th October—is because it included several questions. We found it necessary to seek the advice of independent experts on the arrangements for administering anthrax and for MoD officials to consult colleagues in the Department of Health licensing department, who in turn needed to seek advice from others. In order to give the fullest possible Answer, it was decided to provide information on the use of the anthrax vaccine after 1990–91. Information about contraindication for the 13 vaccines used at that time was not readily available. Anthrax was not a compulsory vaccination and never has been. It has always been voluntary.

My Lords, is the same cocktail of vaccines being used for the troops in Iraq today?

My Lords, we have learnt many lessons from the problems identified in 1990–91. Today we have a very important schedule of vaccination times. Vaccines are given at certain times on a routine basis. As to the content of the vaccine, I shall contact the noble Baroness.

My Lords, I remember this issue being raised many years ago. It was not admitted then as freely as now that there were serious mistakes in medical record-keeping. That has been said for a long time. Does the Minister agree that if we can have public inquiries for a train or boat disaster, surely it is wholly unreasonable that we should still refuse to have one for more than 5, 000 people who are getting older and who have unexplained illnesses, and at a time when we have troops at war?

My Lords, it is still the view of this Government that only through a programme of research initiated by the Government are we ever likely to find the reasons why so many Gulf veterans are ill. As I said, the Government have not closed their mind.

asked Her Majesty's Government:

My Lords, a draft EU directive on hallmarking has been proposed, but the UK is opposing it because it would weaken the protection currently enjoyed by consumers in the UK. We think that we have a reasonable chance of success. The British Hallmarking Council has recommended changing UK legislation to mark mixed metal articles, but responses to a consultation on this did not make an adequate case for such changes.

My Lords, I thank the Minister for that Answer. I hope that it is still a draft directive rather than law. If we are forced down that road, can he ensure that we still retain, as a secondary mark, the established British hallmarking system on genuine goods, because some of the European states will not enforce a European directive?

My Lords, let me be clear. We oppose the directive because we believe that it would not maintain consumer confidence, that it would not be effectively enforced and that it would do nothing for the common market. The terms of the directive do not mean that an assay mark cannot be used; they simply mean that it does not have to be used and that one can rely on a manufacturer's mark plus market surveillance. We do not think that that is a good system. We want to retain the system we have. Even if the directive is passed—we shall oppose it—we could still put on the marks that we have.

My Lords, is it not a fact that nine of the 10 countries due to join the European Community next year favour compulsory hallmarking and that this is such a hazardous moment because of the Italian presidency? The Italians produce a good deal of jewellery in this country, but is it not also a fact that more Italian items are destroyed for undercaratage than any others? The major risk of losing the British hallmarking system, which is such a guarantee of standards to consumers, will remain until this presidency finishes at the end of the year.

My Lords, it is true that the Italians revived the hallmarking directive in July. It is an issue about which they feel very strongly. That has not in any way prevented imports of Italian jewellery in to this country. At present the discussions on the working party are not making great progress. The Italians have said that they will take this matter to the Committee of Permanent Representatives (COREPER). We think that that will not make progress. We shall continue to oppose the directive.

My Lords, I declare an interest. I wrote a brief for the British goldsmiths association arguing against the retention of the assay mark which, if considered carefully, is just an extra cost imposed on British jewellers. Countries elsewhere in the world can manage without such a system; it is just a market distortion. The sooner we do away with it the better. Will my noble friend reconsider his position and support the directive? That would make us more competitive in Europe.

My Lords, the mark is a very minor cost. We think that it is an essential piece of information. Far from it being a market distortion, it is a very good piece of information that gives consumers confidence in the product that they are buying. We have no intention of changing our policy on this matter.

My Lords, the Minister has told this House on more than one occasion that our Government are, fortunately, against this directive. Can the Minister say whether Her Majesty's Government are confident that they will have sufficient support at the next Council meeting at the end of the month to frustrate this Commission proposal?

No, my Lords. We hope that enough member states share our view to be able to block this measure, which is for qualified majority voting. However, we must recognise that there are member states which support the directive. That is why we are making a major effort to persuade other member states to come round to our point of view.

My Lords, is my noble friend aware that the noble Lord, Lord Desai, does not speak for all Members on this side of the House, the vast majority of whom would support the Government in their total opposition to this directive? If the noble Lord, Lord Desai, needs further direction on this matter, he is very welcome to come and talk to the people at the Birmingham Mint, who will soon put him right about this fundamental measure of consumer protection.

My Lords;, I am sure my noble friend Lord Desai would be horrified if it was ever thought that he was speaking for the majority of this House.

asked Her Majesty's Government:

My Lords, we remain confident that the systems are in place to ensure that humanitarian relief provided by the United Kingdom reaches those most in need. The World Food Programme and others distributing international food aid all have clear procedures and monitoring systems in place, and these are working well. Along with the United Nations, the EU and other donors, we continue to make it clear to the Zimbabwean Government that we will not tolerate political interference in the distribution of food aid.

My Lords, over the past two years, British taxpayers have poured £62 million worth of humanitarian aid into Zimbabwe. Independent reports say that that has been manipulated to help prop up the brutal dictatorship. Has the time not now come to table a UN resolution to seek monitors, not only for the distribution of food aid, but also for human rights issues?

My Lords, I have answered a number of Questions about the manipulation of food aid. I have made it absolutely clear that we think that the monitoring process we have put in place is robust and that there are investigations every time there is any kind of allegation. With respect to seeking a UN resolution, noble Lords will recall that in the United Nations there is no appetite for any such resolution. In fact, when we have put resolutions to the UN human rights committee, they have fallen as a result of the action taken by the African group as a whole.

My Lords, why does the United Kingdom have a history of recognising foreign governments which manifestly have adopted power by bypassing acceptable election processes?

My Lords, it is a long-standing convention that we recognise states not governments.

My Lords, the noble Baroness said that the World Food Programme is satisfied with the monitoring arrangements. Has she noted its statement that the number of people dependent on food aid will increase from 1.8 million in October to more than 5.5 million in the early months of next year? Is she satisfied that the arrangements are robust enough to cope with a trebling of the number receiving aid, particularly bearing in mind the acknowledged shortages which are occurring in the urban areas and, in particular, in Matabeleland? Will our programmes do everything possible to redress the discrimination against the urban areas and against Bulawayo where children are now starving to death from malnutrition?

My Lords, I received a report this morning from an official who was in Zimbabwe last week. The numbers will rise from 1.3 million to 5.5 million, but that is because we are approaching what is called the "hungry season". So the figures will be more in line with those last year. We are confident, following our discussions in Zimbabwe last week, that the monitoring systems are robust. We have given an additional £0.5 million to the World Food Programme to cover monitoring issues. We continue to feed some 1.1 million vulnerable people in Zimbabwe, including malnourished children.

My Lords, did not the very well respected international Human Rights Watch find incontrovertible evidence that food aid is being manipulated for political ends and that some horrible and brutal decisions are being taken?

We all recognise that the Government are very limited in what they can do about this issue—short of working very hard to get rid of Mugabe—but over the weekend did not the Minister hear the American President calling Zimbabwe an outpost of oppression? Is she not aware—I am sure she is—that day after day our high commissioner in Harare is subjected to the most appalling and outrageous threats and insults? Is it not time that we followed the example of the American Congress and spoke out more robustly and more strongly and pushed Mr Mbeki in South Africa into the action he has promised, which is to bring this horrific nightmare to an end?

My Lords, the noble Lord, Lord Howell, raised a number of different issues. First, how robust have the UK Government been? We cannot have been more robust. A decision would not have been taken at the Commonwealth Heads of Government meeting last year, which I attended, suspending Zimbabwe from the councils of the Commonwealth, if the UK Government and our Prime Minister had not been extremely robust. We were the first country to cease arms sales to Zimbabwe. We were part of the European Commission that agreed sanctions and an assets freeze. The US Government followed the European Union with respect to that.

We have been at the forefront of discussions, not just with our European partners, but with the United States and others about what we can do in Zimbabwe. I have said in this House many times that outside governments are extremely limited in what they can do regarding a government who are intent on repressing and harassing their own people. We have done our best. I have listened time and again to calls from the party opposite for us to do more, but have heard very little about what more we can do.

My Lords, can the Leader of the House explain what steps her Majesty's Government intend to take at the forthcoming Heads of Commonwealth conference in Abuja to promote a resolution to the political crisis in Zimbabwe and the flagrant abuse of human rights in that country?

My Lords, we shall continue to talk with other Commonwealth countries about this matter. Noble Lords will know that Zimbabwe has not been invited to the conference by the Nigerian Government, which is hosting the event.

My Lords, we have been told—and I am sure it is true—that we are working very closely with the EU on this matter. The EU is, in turn, beginning to work very closely with the African Union. I think that the Minister will agree that the African Union has consistently blocked our efforts to bring the issue to the United Nations. Is it part of our express policy to urge all our EU partners to press the African Union no longer to continue that opposition, but to allow a resolution to be properly discussed, as it should be, in the United Nations?

My Lords, we have continued to work with our EU partners. The noble Baroness will recall that the EU-Africa summit, which was due to be held earlier this year, did not go ahead precisely because the EU and the AU could not reach agreement about the possible attendance or non-attendance of Mugabe at that summit. We shall continue to do that work. The noble Baroness will also be aware that there are differences among European Union countries with respect to an ongoing strategy on Zimbabwe.

My Lords, perhaps I may take the noble Baroness back to the question posed by my noble friend Lord Howell. Is she satisfied that the South African Government are doing everything possible to apply pressure on Mugabe's regime to bring it to an immediate close?

My Lords, noble Lords will know that we have been in discussions over many months with the South African Government. They have assured us that they are engaged in discussions on these matters with the Government of Zimbabwe, and indeed with the MDC.

My Lords, the Minister talked about the monitoring of the distribution of food aid. Can she say how many irregularities have been detected recently?

My Lords, no irregularities have been detected recently.

Oh!

That is absolutely right, my Lords. I remind noble Lords of a point I have made in this House before. The international community provides food aid, but the Government of Zimbabwe itself provides food aid through the Grain Marketing Board. So many of the irregularities that may have been brought to your Lordships' attention relate not to international aid through either the World Food Programme or the Department for International Development but to the food aid being delivered by the Government of Zimbabwe. If noble Lords know of irregularities, I should be happy if they brought them to my attention.

asked Her Majesty's Government:

My Lords, the Government are committed to spending 90 per cent of DfID country programmes in low-income countries by 2005–06. That, together with contributing to the cost of recovery in Iraq, will lead to some reductions in aid to other middle-income countries in future years. Further details are provided in a Written Answer I have today given in reply to my noble friend Lord Radice. I have placed a copy of that Answer in the Library of the House.

My Lords, I thank the noble Baroness the Leader of the House for that reply and declare an interest as a board member of HelpAge International, an international development charity working for and on behalf of older people in many middle-income countries.

I welcome the Government's continued commitment to increase overall international development funding and support for multinational organisations such as HelpAge International. I hope that Iraq will soon rejoin the group of middle-income countries. However, I am disappointed that the extra spending on its reconstruction has meant that a further £50 million has been cut from funding for middle-income countries in the next two years. That may be especially harmful to programmes in Latin America and Eastern Europe.

Question!

My Lords, I seek the Minister's reassurance that central to her department's international development agenda on poverty reduction is another change in circumstances that we face, which is the global revolution in ageing, which is impacting on all parts of the world, especially developing countries.

My Lords, I assure the noble Baroness that the commitment of the Government and of the Department for International Development to the poorest countries in the world will continue. What is happening at present is an acceleration of the trend to which we are already committed. We have a target to move our spending from a current base of 78 per cent spent on the lowest income countries in the world to 90 per cent by 2005–06. Iraq counts as a middle-income country. We have considered how we spend the money that we allocate to middle-income countries and have had to reallocate within it. But our commitment to the poorest countries in the world continues.

My Lords, does the Minister recall that on 12th March 2003, it was stated:

"It would clearly be wrong to consider withdrawing DfID funding from other humanitarian emergencies or development efforts elsewhere in the world"?

Clare Short, the noble Baroness and the Prime Minister all said that reconstruction costs in Iraq would come from DfID reserves. However, on 6th November, Hilary Benn stated—and the noble Baroness echoes him—that the,

"withdrawal from programmes, earlier than we had previously decided".—[Official Report, Commons, 6/11/03; col. 42WS.],

was because of expenditure in Iraq. What other battles is DfID likely to lose over Iraq?

My Lords, the noble Baroness, Lady Northover, misunderstands the nature of DfID funding. The money we spend on humanitarian aid and emergencies around the world is separate from the money we spend on our bilateral and multilateral programmes. There has been no cut in our humanitarian or emergency assistance to any country as a result of our programmes in Iraq. What we have considered reallocating—not during this year but from next year—is the money spent in middle-income countries, which we were already doing in any event so that we could meet our commitment to 90 per cent of our spending going to low-income countries.

My Lords, the middle-income countries whose budgets have constantly been under threat under this Labour Government are still home to at least 140 million people living in poverty. The Secretary of State, Mr Benn, released a shocking Written Statement last week describing reduction of spending in middle-income countries of about £100 million. Only in October did he pledge £544 million for Iraq, with no mention of cutbacks.

Of course we support aid for reconstruction of Iraq, but not at the expense of countries such as Albania, Romania and Bulgaria, to mention but a few, or poor countries such as those in Latin America. Why do the Government continue to calculate by pure numbers of people per country, not by percentage? There will always be more people below the poverty line in China than Albania, for example. How do the Government expect aid programmes to continue if they are cut so suddenly?

My Lords, the noble Baroness represents a party which presided over a dramatic fall in the amount going to overseas development. Since 1998, UK aid spending has increased by 74 per cent in real terms. So I do not understand her point about our overseeing cuts in expenditure on development. We have made a commitment to the poorest in the world that 90 per cent of our bilateral funding will go to them through our commitment to low-income countries.

My Lords, some middle-income countries, such as South Africa, are being ravaged by HIV/AIDS. Their needs are perhaps even greater than those of Iraq, especially bearing in mind that they are not in receipt of the massive reconstruction budget presently offered by the USA to Iraq. Will the Leader of the House outline the key criteria applied by DfID in reallocating funds from middle-income countries to Iraq and confirm that those criteria are consistent with those usually followed by DfID in allocating funds?

My Lords, I reassure the noble Lord, Lord Joffe, that dealing with HIV/AIDS is central to our work in sub-Saharan Africa and will continue to be, regardless of whether it occurs in a middle-income country such as South Africa or elsewhere. On the criteria, post-conflict countries have always been important to our development agenda. We are developing a strategy for our work in middle-income countries.

My Lords, as the House will know, tomorrow is Armistice Day. Although the House will not be sitting at 11.00 a.m., Members of the House, their staff and officials of the House will be attending to their duties. I think that the House will agree that it is appropriate that we should join the nation in observing the two-minute silence at that time, so that we might remember those who gave their lives for their country to help to preserve our democratic freedom. Instructions will also be issued to Heads of Department, so that those members of staff who wish to observe the two-minute silence are enabled to do so.

My Lords, I beg to move that the Bill be now further considered on Report.

moved Amendment No. 233:

moved Amendments Nos. 235 to 239:

moved Amendment No. 241:

Page 13, line 2, leave out subsection (4).

moved Amendment No. 245:

Page 13, line 21, at end insert—

My Lords, I thank the Minister for introducing the government amendments as he did. They were not unexpected in view of the Minister's assurance in Committee carefully to consider an alternative to provide more comfort for patients' interests and to show that we are serious about patient involvement on the providers' side. Some of the subsidiary amendments are sensible tidying-up arrangements, as were the amendments tabled by the Liberal Democrats at the previous stage. To that extent, they are welcome. We welcome, in particular, Amendment No. 249, which amends Section 19 of the 2002 Act, and Amendment No. 252, which gives the commission the right role as regards foundation trusts. We very much welcome the introduction of statutory consultation requirements on merger proposals, which has been under debate.

We do not accept the underlying principle behind the Government's amendments. Patients' forums are a statutory link with the community, so the community should decide whether that link is severed, not the foundation trust. Amendment No. 245 and subsequent amendments tabled by the Government attempt to provide a consultation procedure, but it starts from the wrong end. It is no good to consult a foundation trust patients' forum without a duty to have regard to what it says. It is all very well to consult, but the process must be taken seriously, and there should be a duty to do so. Will the overview and scrutiny committees of local authorities be consulted? Those are essential pre-requisites to any power.

Our fundamental objection is that we see patients' forums as the standard operating requirement for patients' involvement in the NHS, whether an ordinary NHS trust or a foundation trust. They should, and will, be a useful independent informed voice for patients and will be able to act as a support for governors, counterbalancing the influence of trust management on the governing body. They should be able to link up accountability mechanisms, particularly through their powers of referral to overview and scrutiny committees. They should link up also with national accountability, through the referral of issues of concern to the commission.

The bottom line is that the Government themselves made a commitment that there should be a patients' forum in every trust and PCT. That was the underlying basis of the 2002 Act. By the simple expedient of getting rid of NHS trusts and turning them into foundation trusts, they are attempting to climb out of that commitment, albeit with that caveat. That is a major problem for us.

There are problems with individual amendments. What sticks out most is the aspect of timing. Under the Government's provisions, by my calculations, the minimum period for which a foundation trust should have a patients' forum is 15 months—I do not know whether the Minister will be able to confirm that. That is a ridiculously short time in which to have a patients' forum to see whether that will operate. Even in their own terms, the Government's amendments seem extraordinarily flawed.

Many of us have considerable doubts about what constitute adequate arrangements to secure the performance of functions corresponding to those of the patients' forum for that trust. One could go into detail specifying that; indeed, if we were to accept the provision, such detail would have to be included. But, having looked carefully at the provisions, I am afraid to say that I do not believe that the Government have gone far enough. They will have to stretch themselves to go that extra mile.

My Lords, I support the noble Lord, Lord Clement-Jones, in what he says on this group of amendments. I recognise that the Minister has tried to be helpful in tabling the government amendments, but I am sorry to say that, having read them, I do not think that they will do.

The central point is that the governors of a foundation trust should not be made judge and jury on the question of whether to get rid of a patients' forum. That is surely what they would be, as the consultation that they would be required to perform under proposed subsection (5) is only that—consultation. As the noble Lord said, it does not include a duty to pay attention to the feedback that the governors receive or to act accordingly.

The chairman of the board of governors is in a particularly awkward position since he is also the chairman of the trust, who would have a clear interest in wanting to remove the patients' forum. Like the noble Lord, Lord Clement-Jones, I do not see why the overview and scrutiny committee has been omitted from the consultation process. One of patients' forums' main powers is that of referral to the local overview and scrutiny committee. That is part and parcel of their democratic underpinning. It seems extraordinary to ignore the views of the OSC.

I agree that the Government need to explain the meaning of subsection (1) of Amendment No. 248. It is not clear what replacement arrangements there could be for a statutory power to refer a matter to the OSC or the Commission for Patient and Public Involvement in Health; nor is it clear what replacement arrangement there could be for a statutory duty to find out the views of patients.

As a matter of drafting, the Government's amendments, taken together, cause me some puzzlement. Amendment No. 248 refers to the circumstances in which a patients' forum may be dissolved. That presupposes that a patients' forum exists to be dissolved. Yet, Amendment No. 245 says that a patients' forum need not be set up in the first place, if a resolution under Amendment No. 248 has been passed. How could that resolution have been passed if the patients' forum did not exist? I should be glad, if the Minister could explain.

I feel let down by the Government's approach to patients' forums in the Bill, despite the fact that they tried to meet us halfway. The promise was made only a few months ago—after three years of negotiation— that every hospital would have its own forum. If patients' forums are to be abandoned across the piece in acute trusts, the least that should happen is that the community itself should do the deciding. The government amendments adopt the wrong approach.

My Lords, I am pleased that the Government have listened and have moved a bit on foundation hospitals and patients' forums. As there are so many changes and new bodies in the National Health Service, I ask the Minister to spell out what patients' forums will do. There is confusion on so many bodies at the moment.

My Lords, on the last point, I can say that, under foundation trusts, patients' forums will do the same job as they do under the existing arrangements. There is no change in their functions. They will continue the functions that they have performed under an NHS trust, when that trust becomes an NHS foundation trust.

In response to the point made by the noble Earl, I say that, together, the amendments achieve the transfer of the patients' forum. We disagree with his view that they do not. I am happy to consider the point again with parliamentary counsel to ensure that the amendments achieve the purpose that we said they would achieve. It was my intention, in approving the amendments, that they should achieve that purpose. There would be no point in our making elaborate arrangements for possible dissolution, if we had not ensured that they would continue when the NHS trust became an NHS foundation trust. I hope that, with that reassurance, the noble Earl will accept that we have endeavoured to do that.

We think that some of the remarks made by the noble Lord, Lord Clement-Jones, are a bit harsh. If we examine the detail of what we have provided, we will see that there is a high threshold for getting rid of a patients' forum through a foundation trust. We have required a 75 per cent vote at a meeting of the board of governors. That is a fairly high threshold. The governors must be satisfied that there is alternative provision that satisfactorily carries out the functions of a patients' forum. There will have to be powerful evidence that an alternative to the patients' forum can be provided, and the vote must pass the 75 per cent threshold that we have specified.

My Lords, is the noble Lord withdrawing the amendment, so that we can go back to it at Third Reading? Is he going to consider it again between now and Third Reading? This is Report, and I do not believe that he will be able to consider the amendment again, if we agree it now.

My Lords, I am sorry if I have misled the House. I have absolute confidence in our amendments. I thought that I had moved the amendment earlier. For the avoidance of doubt, I beg to move.

moved Amendments Nos. 246 and 247:

Page 13, line 22, leave out subsection (2) and insert—

had given notice of his intention to move Amendment No. 248:

Page 13, line 32, at end insert—

My Lords, different considerations apply to the later amendments. On these Benches, we would not wish to move amendments in priority to government amendments. We would appreciate it if the Minister would move his amendments formally, to determine what the House might do in those circumstances.

My Lords, I am in some difficulty here. I am being encouraged by the noble Lord to move Amendment No. 248.I am being advised not to move Amendment No. 248 by my advisers on the grounds that, given the vote, we would not move our amendments in this group. We have to look at the amendments moved by the noble Lord, which have been carried, to determine whether, technically, they require any tidying up. In the light of that, we will not be moving Amendment No. 248.

My Lords, before the Minister sits down, we particularly wish that he would move Amendment No. 249.

moved Amendment No. 249:

Page 13, line 32, at end insert—

moved Amendment No. 252:

moved Amendment No. 256:

After Clause 34, insert the following new clause—

Amendments Nos. 258 to 260:

moved Amendment No. 262:

moved Amendment No. 265:

My Lords, I thank the noble Lord for listening to our arguments in Committee. I am pleased with the amendments.

moved Amendments Nos. 266 and 267:

moved Amendment No. 270:

moved Amendment No. 272:

My Lords, these are important amendments. There is a great difference between how it feels to be the chairman of a quango if you are appointed by the Secretary of State and your salary and conditions of service are fixed by him, and how it feels if you are appointed independently by someone else and your salary and conditions of service are determined by the body of which you are the chairman. It is a completely different feeling.

In my experience, there are two possible kinds of independence in these circumstances. If one has been appointed by the Secretary of State, there is independence within the broad spectrum of what is acceptable to him and to the Government of the day. Should one go on into a different kind of government, one's freedom changes slightly and one is prepared to accept that. However, if one is appointed quite independently, one can, if necessary, stand up to the Secretary of State and be truly independent. That is what we want in this case. We want the two bodies to be able to carry out, within their terms of reference, a completely independent job.

Of course we understand that there are two ways of doing so, but this is a new situation. Foundation trusts are supposed to be independent hospitals and they need independent bodies to inspect them. I strongly support the amendments.

My Lords, I support the amendments. When they first announced the merger of the acute inspection aspects of CHI and the National Care Standards Commission, the Government promised a new CHAI which would be every bit as independent of government as the Audit Commission. In a sense, these amendments are designed to ensure that the Government honour that obligation. They are a natural way of ensuring that the independence of CHAI and CSCI is absolutely clear. As the amendments are drafted in moderate tones, I shall be surprised if the Government can find any reason to resist them.

My Lords, the noble Earl has raised a number of issues. I shall deal with them steadily as I am not as practised a parliamentarian as I hope to be in the future.

I support Amendments Nos. 278 and 281 in relation to appointments because they reflect current practice in that chairs and board members are appointed by the NHS Appointments Commission. I do not understand therefore what difficulty there will be in establishing that as a pattern. It has nothing to do with the issue of accountability through Parliament and the Secretary of State for the work carried out, but it does give a degree of separation in terms of appointment. It is suggested that an independent element could be added to the system for the appointment and dismissal of the chair and board members. This is similar to the existing system for local authority chief executives. Both suggestions are valuable.

However, I have real concerns about the amendments that would allow the commissions— certainly in relation to CSCI, which I would understand more than I would CHAI—to repay borrowed money. This is because of the complexity in regard to how repayments would be made and how money would be raised in order to make such repayments. It must be remembered that these organisations will have the freedom to impose fees and to increase them in certain circumstances. I am concerned that fees should be kept at a proper level and not used to pay for borrowed money.

It would be extraordinarily helpful if CSCI and CHAI—I do not quite understand how the process works—were able to make direct submissions to spending reviews independent of the Department of Health. The problem at the moment is that they must make their submissions through the Department of Health's total submission, where they are in competition with other groups rather than able to make their own direct interventions.

A great difficulty may arise if both commissions are not properly resourced in the future by the Government, but I am sure that the noble Lord, Lord Warner, will assure us that they will have appropriate resourcing in the future.

My Lords, this large group of amendments concerns the appointment, pay and financial independence of the two commissions and the regulator.

The effect of Amendments Nos. 272, 273, 278, 406, 407 and 408 would be that all appointments to the boards of both CHAI and CSCI and also the independent regulator would be automatically delegated to a special health authority—effectively the NHS Appointments Commission.

I said previously that the Government envisage that the vast majority of national appointments for which the Department of Health is responsible will be delegated to the NHS Appointments Commission, with only a very small proportion of appointments being made directly by the Secretary of State. The position regarding CHAI and CSCI has already been made quite clear in Committee and in another place. The Government are committed to delegating all stages of the appointments processes for both commissions to the NHS Appointments Commission for chairs and non-executive members Ministers will not be involved other than by setting the criteria against which candidates are judged.

As regards the independent regulator for NHS foundation trusts, it is the Government's intention that the Secretary of State will appoint the regulator on first establishment. He may in the future consider delegating appointment of the independent regulator to the NHS Appointments Commission. It is likely that appointments to the new board structure will also be delegated in that way. Against this background, we do not believe that there is any need for the amendments.

As regards Amendments Nos. 274, 275, 276, 279, 280 and 281—which concern the determination of remuneration and other allowances—we do not believe that the parallel with the Bank of England is at all valid. The effect of the amendments is that CHAI and CSCI would themselves be responsible for determining remuneration and other allowances, including pensions, of the chairmen and members of the commissions. This would be highly inappropriate because, as I said in Committee, it is proper that these functions should belong to the Secretary of State as he sets the overall budget for CHAI and CSCI in consultation with the inspectorates—and, in the case of CHAI, with the National Assembly for Wales—and he will be able to ensure that the remuneration paid to the chair and other members is appropriate and proportionate.

It would be a little bizarre to follow the path of the amendments because the chairs and other members of CHAI and CSCI are public appointees rather than employees of the commissions. As such, their remuneration should not be determined by themselves as that would hardly ensure proper public accountability. It cannot be right for the chair and other members of CHAI and CSCI to determine themselves the amount of remuneration they are to receive. I am not sure that they would wish to do so as this would leave them open to accusations of lining their own pockets. Certainly, as someone who has chaired an NDPB, I would not want to be in the position of effectively fixing my own pay. The backstop proposed by the noble Earl of the Secretary of State having to approve such determinations would put him in an impossible position because he might have to disagree publicly with the proposals put forward by the commissions.

I am unclear about what benefits the amendments would have. They would not serve to make the commissions more financially independent as the Secretary of State—in consultation with the Assembly in the case of CHAI—will remain responsible for setting the overall budget. The amendments would serve only to set up a system for CHAI and CSCI which, for no good reason, would be different from all other public appointments to NDPBs and would muddy the waters of accountability.

Amendments Nos. 277 and 282 seek to allow CHAI and CSCI to borrow money from the private sector. In Committee, I made clear that the Government are committed to ensuring that CHAI and CSCI are fully funded to carry out all their functions effectively, whether that funding is obtained through fee income or through central funding. Clearly, we would not wish to go to all the trouble and expense of setting up a new and powerful independent set of commissions only to render them incapable of doing their work due to lack of funding.

It would be unprecedented for NDPBs such as CHAI and CSCI to be able to raise money by borrowing from the private sector in this way. As I stated in Committee, there are good reasons, we think, in terms of value for money on interest rates and accountability for their core functions why we should not take this particular path. It is not the case, as the noble Earl has previously suggested, that this unwillingness to allow the commissions to borrow from the private sector undermines our stated belief in their capabilities and independence.

CHAI and CSCI will be independent inspectorates of health and social care, and we have every confidence in their undoubted expertise in these areas. However, I see no reason why we should depart from well established financial practices for NDPBs for CHAI and CSCI. I do not believe that these amendments make sense.

My Lords, I am grateful to the Minister for setting out the Government's stall so clearly. The way in which he has done so starkly opens up the difference in philosophy between ourselves and the Government on what these two bodies should look like. I thank my noble friend Lady Carnegy for what she said. I am grateful, too, for the support from the noble Baroness, Lady Howarth, at least in part, for what I had to say.

I simply do not think that the Minister has made the case for reserving a power of appointment to government. He has not said why or in what circumstances this power would be needed. If, as they say they do, the Government intend to use the NHS Appointments Commission for the vast bulk of these appointments, that is surely the track we should pursue. For the life of me, I cannot think why this should not be set down.

There is a very good reason for creating that Appointments Commission. Our memories do not need to be that long to recall that there was some of controversy during this Government's initial period in office over politically biased appointments. Whether the allegations were well founded is another matter, but the Appointments Commission was set up to address that concern, and I applauded it.

My Lords, will the noble Earl remember back to before 1997, when there was quite a lot of controversy, as I recall, about his government's appointments to NHS bodies? It is a bit rich to take a genuine effort by this Government to take many of these appointments out of the political arena and say that that action was simply a result of concerns about this Government's behaviour.

My Lords, I am the first to acknowledge that every government want to ensure that there are people in important public positions who are broadly sympathetic to the drift of government policy. Of course that is so. However, the Minister is being a little disingenuous; there is simply no comparison, if one looks at the statistics on politically biased appointments in the current Government's time and in that of the previous Government. Yes, of course Conservatives were appointed to some positions, but there was much more of a balance in those days than a few years ago. I say no more than that.

My Lords, I am grateful to the noble Earl for giving way. Is he really saying that the last government did not exercise political bias in their appointments to NHS bodies? My Lords, they did. They appointed a considerable number of Conservatives. Very few people who were identified as Labour Party members and supporters were appointed.

My Lords, I have just said that of course Conservatives were appointed to key positions, but it is a matter of degree. That is the point. The blatant attempt to bias the process when this Government came to power was there for all to see. I, for one, welcomed the creation of the Appointments Commission as a means of getting us away from all that and, to a very great extent, it has done so.

The Minister rejected the analogy I attempted to make with the Bank of England, and suggested that CHAI and CSCI were simply not the kind of non-departmental public bodies which could accommodate the freedoms that I propose in these amendments. Again, I simply do not agree with him. The fact that they are public servants—

My Lords, is the noble Earl aware that the chairman of the Audit Commission has his salary set by the Secretary of State? Is the noble Earl suggesting that the Audit Commission chair is not independent because his salary is set by the Secretary of State?

My Lords, I do not feel the need to comment on that. The analogy I was making was with the Governor of the Bank of England. He is a public servant, as much as the chairman of CHAI or of CSCI will be. There is a good argument for saying that if we want to make these bodies as independent and politically unbeholden as possible, we should look very seriously at the simple device of allowing these bodies to set salaries, with the veto of the Secretary of State. I am not suggesting that there should not be such a veto.

As the amendments make very clear, the Secretary of State would have a say in this. He would be able to disagree with whatever proposals he did not like, and I do not see what is wrong with that. It would be a public disagreement, but I do not see why that is undesirable.

As to the freedom to borrow, I hope I have made it clear that these proposals are simply designed as a safety valve. They would not be used in the routine course of events for capital requirements, but they could be used if needed. Again, I think that is a sensible proposal; each body would have to exercise its judgment responsibly and would be audited and examined on the strength of that judgment. It is not as if no controls or checks would be made on them.

I think we have reached an important point of disagreement between this side and the Government, and I would like to test the opinion of the House.

My Lords, it would be for the convenience of the House if I made clear a decision that we reached during the Division. We shall not press the amendments relating to financial freedoms; the only amendments that we shall press are the ones for which there is a wider consensus in the House and which relate to the independent appointment. I believe that the House has agreed to Amendments Nos. 272, 278, 407 and 408. I shall not move any of the other amendments.

moved Amendment No. 278:

moved Amendment No. 283:

My Lords, I support the amendment. I agree with the noble Baroness, Lady Barker, that there certainly was some confusion when the matter was discussed in Committee.

There used to be a clear dividing line between health and social care particularly for those patients who are cared for at home in the community. However, some very complex clinical scenarios now exist where independent living and rehabilitating someone back into society can occur only where there is a very high quality, highly specialised outreach service from the hospital combined with other infrastructure services to provide support in the patient's own home. A good example of that is patients who require intermittent positive pressure ventilation at night. The respiratory team will set that up and will be based in the acute hospital. The patient may be at home and may even be at work during the day but needs to be on ventilation over night and requires careful monitoring and support with the equipment, particularly if he or she has had a tracheotomy.

There is an increasing shift towards providing services where the patient wants them with more and more outreach services. The Bill's present wording seems to suggest that everything stops when someone has been treated. However, these patients have a continuum of rehabilitation and supportive care that often continues right through the rest of their lives. In some cases the acute medical infrastructure—I use the word "medical" in the broadest sense meaning all the medical health services—can later be withdrawn and the patient cared for with more of a social services infrastructure of support.

I have a slight concern that the amendment should contain the word "health" before "services" to make it read,

"health services to support independent living and rehabilitation".

That might remove some of the confusion. That is my only reservation with the wording of the amendment. I completely support its spirit.

My Lords, my noble friend Lady Finlay illustrated why I find it difficult to support the amendment, without the need for further clarification. When services move into the community many people would rather have a service that does not have a particular medical orientation. What they want to receive is a medical service in a social or community setting. One of the great difficulties that has arisen in providing services, for example, in old people's homes where people are heavily dependent on care, and with adult disabled people—I declare an interest as the president of John Groom's Association for Disabled People, so I have some knowledge of these kinds of services—is making sure that you have the right balance of care.

I do not underestimate the difficulty of making decisions as regards which camp they fall in. My great concern is that they do not all become health services with medical orientation, thus losing some of the social care issues that come with rehabilitation.

My Lords, we have already discussed the issues raised by Amendments Nos. 283, 354, 355 and 356 in Committee, and I wrote to Peers on them on 4th November. With respect to Amendment No. 283, I explained that we did not believe that we should change the existing definition of healthcare in such a way, because to do so would suggest that services concerned with rehabilitation and independent living were generally provided by NHS bodies. In fact, they are most frequently provided by local authorities as social services, with health services provided as ancillary to those services. I totally agree with the points made by the noble Baroness, Lady Howarth.

I want to be absolutely clear that I am not suggesting in any way that such services will always fall within the definition of social care or always be regulated by CSCI. The NHS also provides rehabilitation services and, where that is the case, those will fall within the definition of healthcare as services provided in connection with the treatment of illness, and will be subject to inspection by CHAI.

The terms "rehabilitation" and,

"services to support independent living",

used in the amendment are so broad that they could almost cover the entirety of adult social care. To amend the definition of healthcare as suggested would therefore give a misleading impression of the services to be dealt with by CHAI under the Bill, and those to be dealt with by CSCI.

I accept the point made by the noble Baroness, Lady Finlay of Llandaff, in terms of a continuum of care, and nothing that I say would seek to go against that. I shall give some examples to illustrate the point that I have been trying to make. In some cases, a discharge will be to onward rehabilitative care provided by the NHS. For instance, where an individual had recently had a limb amputated, they would be provided with ongoing pain management and rehabilitative services. Such services would be inspected by CHAI.

In other cases, a discharge might be made to a social care facility, where rehabilitation could take place. For example, a patient who had been admitted to hospital as a result of a fall might be discharged and provided with a care package to a sheltered housing facility. That facility would be subject to inspection by CSCI under the 2000 Act, even though there may be an element of healthcare such as community nursing in the care package. I am trying to illustrate that we want to see where the balance of effort lies in particular packages of care, always accepting that there will be a continuum of care. The definition in the Bill is appropriate.

Amendments Nos. 354, 355 and 356 were also tabled in Committee, and I return to the arguments that I made then. Services providing long-term care and treatment for drug and alcohol abuse are not providing acute medical intervention, as do hospitals, for people with those conditions. They primarily provide secondary care to aid recovery or manage ongoing secondary symptoms. Those facilities may have substantial input by nurses and allied health professionals, but have limited input from consultants or other doctors.

Nevertheless, those services are also providing substantial personal care for service users, including the most intimate forms of that care with toileting and bathing. In common with other care homes providing nursing input and personal care, those services should properly continue to be inspected by CSCI so that their welfare needs can be most appropriately met. CSCI will of course be able to seek assistance from CHAI where healthcare professional expertise is needed.

I understand the concerns highlighted by the noble Baroness, Lady Barker, about inconsistencies in registration for facilities providing services for long-term conditions and drug and alcohol abuse. We accept that in some cases the line between health and social care is very fine, and difficulties can occur around that line, regardless of where it is drawn. I agree that a consistent approach to registration should be taken, and CHAI and CSCI will work closely together and with providers to ensure such consistency of approach. However, the issue must be solved by working with the regulators themselves, rather than revisiting issues that were discussed, at length if I may say so, during the passage of the Care Standards Act in an attempt to redraw the boundary between health and social care.

The amendments will not solve the problem, but they could create new ones. They should not be pressed or they should be rejected.

My Lords, will the Minister clarify for me that the inspection process for patients who have a lot of clinical input as well as a lot of social care input will be conducted only by CSCI? Alternatively, is he saying that, for patients for whom there are big outreach services from hospital, there would be a joint inspection process to make sure that there were not gaps in provision and that the patient did not miss out on high quality services on both sides of their spectrum of need?

My Lords, I am saying exactly that— that the two inspectorates would work together, but who would lead would turn on where the balance of post-hospital care was being provided from. It would depend on whether there were, in effect, an outreach of the hospital or a transfer largely to the supervision of the social care agency.

My Lords, I thank the Minister for his answer, which served to strengthen my argument. There is still a tremendous lack of clarity about who will inspect medical services provided in the community. I agree with the noble Baroness, Lady Howarth, about the importance of social care and social rehabilitation. She and I have no argument on that at all. My concern remains about the quality of medical services, no matter how few or incidental they may be, to people cared for primarily in a social care service. I do not think that CSCI will ever be in a position to make clinical judgments about care of people in the community; that is the concern behind the amendment.

The comments of the noble Baroness, Lady Finlay of Llandaff, are helpful and have got us somewhere. Clearly we shall not get much further on the matter at this stage. We may not return to the issue, but professionals certainly will, time and again. I beg leave to withdraw the amendment.

moved Amendment No. 284:

My Lords, I shall speak to my Amendments Nos. 285 and 287. I hope that the Minister will be a little more receptive than he was last Thursday, when he accused my noble friend, of all people, almost of obstructing the Bill, which was the last thing he was seeking to do. He was so ungracious that the only people who were indebted to him— although I do not suppose that they thanked him as cordially as they might—were the Opposition Whips. They enjoyed a successful vote largely due to some of the language that the Minister used.

The amendments reflect the muddle that the Government are in in having two horses, the Department of Health and CHAI. The Bill states that the Secretary of State "may" prepare and publish statements of standards. It is important that somebody should publish statements of standards. It would be difficult for practitioners to comply with requirements that have not been made absolutely clear to them. I notice that Clause 46, which deals with the standards that are to be set by the Assembly, states:

"The Assembly may prepare and publish statements".

It goes on to state:

"The Assembly must keep the standards under review".

My amendment would put the Secretary of State under a clear duty to do that. The preparation and publication of statements of standards should not be carried out on a voluntary basis. It should be an obligation. Clause 45(2) states:

"The Secretary of State must keep the standards under review".

That is quite right, so why should he not be obliged to make them clear in the first place? I do not suppose that the Minister will accept the amendments, but they are tabled in the pious hope that he might perhaps be a little more receptive and not think that everybody on this side of the House is out simply to obstruct the passage of the Bill. We seek merely to help the Government. Some of us are hurt and upset that they appear to be as unappreciative as they usually are.

My Lords, the amendments are interesting because they draw out the distinction between clinical standards and service delivery targets. The latter are often called standards, but that is a misnomer.

Clinical standards are absolute. They are evidence based and they are the result of scientific inquiry— usually level one evidence from randomised control trials. Those standards are set within the context of national service frameworks. They are set according to NICE guidance; prescribing standards; the royal colleges' clinical standards; and the National Patient Safety Agency.

The second group are the targets: the service configuration standards, which vary according to political emphasis. They provide performance benchmarks such as waiting times. Clinical standards between England and Wales do not and cannot differ. It would be to fly in the face of scientific evidence to suggest that they could differ. However, performance standards inevitably will differ, because they will reflect policies, priorities, structures and circumstances on the two sides of the border. The Welsh Risk Pool, for example, has its own performance frameworks. The royal colleges' advice on service configuration will be interpreted slightly differently depending on the population to which it has to be applied. Service targets will arise from them that are within ministerial control.

I shall try to illustrate that difference with one clear example. The diabetes national service framework suggested that retinopathy should be detected early through a retinopathy screening programme. In Wales, that was instigated immediately, but there was a lag in England and Scotland. Nobody has disputed the clinical standard against which retinopathy should be screened, but the service targets varied on the two sides of the border. I am proud that England and Wales have now decided to follow the Welsh example.

That is a clear example of how distinct the clinical standards are. The amendments draw out that distinction and clarify that the guardian of the clinical standards cannot be within ministerial control. Those standards must relate to the bodies which conduct the background research and systematic reviews and which produce the hard, often irrefutable evidence that dictates the direction in which the service should go.

My Lords, I support my noble friend. I shall also take up the remarks of the noble Baroness, Lady Finlay. To a lay person, the distinction between the two sets of standards is sometimes blurred. I remember an announcement of the Minister of Health in the Scottish Executive about improving standards of cleanliness and asking everybody to wash their hands. I do not know if that is a clinical judgment. It is a grey area; it falls on the borderline.

I shall mention an aspect of the issue on which my noble friend did not touch, but which was prominent in the debate in Committee; that is, the effect on finance of decisions on standards. On the fourth Committee day, the Minister said:

"I was very interested in the noble Earl's view that one can let an inspection body set the standards, irrespective of the cost of funding those standards in the public arena. I suggest that that would be an interesting approach to budget-setting for any future Chancellor of an alternative government to the present one".— [Official Report, 16/10/03; col. 1135.]

The Minister was assuming that an improvement in standards would automatically be more expensive—or perhaps he was assuming it might be cheaper. If CHAI were setting the standards, it would not be able to change the budget because that would be the Minister's responsibility. As is illustrated by the hand-washing episode, not all improvements are expensive. It costs no more to wash your hands than not to wash them. It costs no more to clean the ward properly than to go around not cleaning it properly.

I do not want to trivialise the issue, but it is not right to assume that improvements in standards are bound to be more expensive. In any case, as my noble friend Lord Howe said, budget setting and standard setting would not necessarily be separated. An alteration in standards which would cost money would never be set by the chairman of CHAI without discussing the desirability with the Secretary of State. There would be plenty of consultation. I do not therefore believe that the money argument should apply.

There is not the smallest question but that the temptation is great for the Secretary of State to use announcements about standards here and there and at different times because a focus group has made a complaint or because the press has reported something and a comment needs to be made. It is used as a political tool. It has been by all governments and it always will be. That temptation would be greatly enhanced if the Secretary of State took all the decisions. It is desirable that CHAI should have this role and I hope that the House will see that argument.

My Lords, the amendment presents a huge temptation. To have standards and to be free from some of the political interventions of the National Care Standards Commission makes me want to vote for it. However, I have some real reservations.

It can be an elephant trap for a commission to set its standards and be the keeper of those standards and it lets the Government off the hook. It is up to the Secretary of State and the government department to be clear about the policy drive. That must take us into the way in which the standards are being implemented.

It is crucially important that the responsibility for publishing standards is a joint one. As the noble Earl, Lord Howe, said, many of them are put together in consultation. However, there might be some differences in the way in which standards are set in CSCI and CHAI. I agree with my noble friend Lady Finlay that there is great confusion about clinical standards, which we use also in social care.

Targets and standards are distinctly different issues and we should be pressing the Government to clarify them. Frameworks and sets of standards are clearly set out and from those the targets emerge. As regards CSCI, once we have the standards we can get on with the targets and not be deflected by government intervention.

I find it difficult to support the amendment, although noble Lords will be able to hear from my hesitation that I am tempted by it. I would like to be able to set such standards but it is a temptation I should resist.

My Lords, I am grateful for the noble Baroness's promise to resist temptation in this area. I was chided by the noble Lord, Lord Peyton, for being unappreciative of offers of help from the Opposition Benches to improve the Government's Bill—

My Lords, I did not say Opposition Benches; I said Opposition Whips.

My Lords, perhaps I may reassure the noble Lord that I did not get much thanks from the Opposition Whips either. I do not propose to conduct a seminar, though the temptation is enormous, on standards criteria for meeting them and methodologies for rating those criteria. However, I must set out the Government's position on the issue, which is both principled and rational.

The report from the Office of Public Service Reform, published earlier this year, clearly sets out government policy on the respective roles and responsibilities for those involved in the inspection of public services. It remains our view, as stated in that report, that the role of Ministers and their departments is,

"to set standards determining how the service is to be delivered and to make sure effective performance management systems are in place".

It also remains our view that it is wrong for the bodies responsible for inspecting services, in order to ensure that they comply with standards, to be responsible also for setting those standards, as these amendments propose. Furthermore, it is also entirely wrong for the Government to abrogate their responsibility for setting the standards of care for NHS patients and those in receipt of social care to independent commissions. That would be the effect of these amendments.

It is not clear to me what noble Lords opposite are trying to achieve. Amendments Nos. 284 and 288 give the healthcare standards-setting role to CHAI, while Amendment No. 286 seems to go half way to trying to restrict the publication of healthcare standards to those that the Secretary of State,

"considers to be of considerable significance."

We on this side of the House do not believe that healthcare standards can be carved up in this way.

It remains our view that, as Clause 45 provides, it is for the government of the day to determine the standards and framework within which the NHS should operate and to set the budget commensurately. Setting the standards for health and social care provision enables the department to match performance expectations with funding. It would be entirely inappropriate, even irresponsible, to divorce the function of setting standards for the performance of public services from the function of determining the level of funding that those services should receive.

I must point out to the noble Earl that I had a number of interesting discussions with the chairman of CHAI. He is totally comfortable with the idea that it is for the government of the day to set standards and it is for him, as under the Bill, to propose the criteria. He has no problems with that approach, which the noble Earl seems to have.

The publication of standards by government is also a vital tool for ensuring the democratic accountability of health and social services. Were governments to be prevented from setting standards for health and social care, it is difficult to see how they could be held accountable to Parliament for the performance of those same services.

In our response to Sir Ian Kennedy's Bristol report, we undertook to ensure the development of standards for the NHS. This remains a core function for the Secretary of State deriving directly from the department's responsibilities for securing resources and delivering healthcare services of an acceptable level. This has been no secret. It is not as though we suddenly announced that approach. When the Government announced the setting up of CHAI in Delivering the NHS Plan, we stated there would be inspection against clear national standards committing the Secretary of State to publish such statements of standards and to keep these under review. We fully intend to fulfil this undertaking.

Well before CHAI takes up its responsibilities, we shall have draft NHS standards in the public arena for consultation with interested parties, including CHAI. I can assure the noble Earl that they will be considerably fewer in number than the 700 or so that we have at present and that were around under his government.

It is obviously desirable that the Secretary of State should continue to update the statements of standards from time to time—perhaps reflecting advice and guidance provided by CHAI, which we are enabling it to do under Clause 53. A similar power is provided to CSCI in relation to social care standards under Clause 75 of the Bill.

As I have already said, the power of defining the standards will be an inclusive one. As I made clear in Committee, earlier this year, during the preparation of the draft healthcare standards on which we consulted, the Department of Health held numerous workshops and meetings. Those were attended by key stakeholders drawn from patients, clinicians, representatives of professional and voluntary organisations, NHS managers and many others. The advice from all those individuals is helping in the development of the draft standards, which we shall publish.

For English local authority social services, there is a long and well tested route for setting out standards as guidance under Section 7 of the Local Authority Social Services Act 1970. Guidance often takes the form of national service frameworks. Guidance issued under Section 7 is well known and respected by local authorities and, in the past, has been used in the assessment of performance by the Social Services Inspectorate. CSCI will continue that practice and will be able to take an overview of the quality of all social care services using the guidance issued under Section 7 and national minimum standards when; applicable— for example, under the Care Standards Act functions and local authority adoption and fostering functions—issued under the Care Standards Act.

The national service frameworks issued under Section 7 guidance are well respected. The amendments would place conflicting duties upon social care providers, who would be under duties to take into account both the Section 7 guidance and the standards drawn up by CSCI. It is unclear what would happen if CSCI decided to issue different standards from those already in place under Section 7.

We believe that the amendments will create confusion among providers and hinder the delivery of effective standards. We consider the present structure of the Bill to be appropriate with the Secretary of State setting standards and CHAI providing the criteria, which ultimately the Secretary of State must approve to ensure that the criteria are consistent with the standards set for the National Health Service.

My Lords, this has been a very interesting debate. I am grateful, not for the first time, for the comments made by my noble friend Lord Peyton in my defence. I am also very grateful to the noble Baroness, Lady Finlay, for her helpful comments, particularly those which sought to point out the distinction between standards and targets. I thank my noble friend Lady Carnegy for her wise observations on the financial effects of standard setting.

The noble Baroness, Lady Howarth, made a characteristically thoughtful intervention. I believe her hesitation would be understandable if we were talking about a few key clinically based standards emanating from government. Like her, I have less of a problem with that notion. The trouble is that we are likely to be considering a large number of standards, many of which may well be quite prescriptive and more appropriately classified as targets.

I listened carefully to the Minister's warnings about the amendments and the comments of other noble Lords. In the light of those, I have decided not to press the amendments today as I want to reflect further on the whole matter. I cannot guarantee that I shall not return to this issue at Third Reading but, for the time being, I believe it is appropriate that I withdraw the amendment.

moved Amendment No. 289:

My Lords, I quake when I hear the noble Earl, Lord Howe, describe the differences between England and Wales. Offa's Dyke is not a Berlin Wall; it is an administrative boundary which is permeable and across which patients flow in both directions. I shall return to the figures of patient flow.

Because of that flow, the Assembly inspectorate, which will be Health Inspection Wales, and CHAI must co-operate and collaborate. I have already outlined why there can be no difference in clinical standards between England and Wales. However, there are, indeed, differences in the way that the service is being prioritised within Wales, and these are the standards which differ. For example, the National Assembly for Wales has set a 24-hour wait to be seen in primary care, not a 48-hour wait. Different priorities are set for emergency care. There is a priority for screening, immunisation and vaccination, all within Wales, and there are free prescriptions, which are meant to be for Welsh residents. I fear that there may be some abuse of that service at present but that will be addressed by a Question and not within this debate.

The demography in Wales differs from England, and across Wales there are vast differences. Overall 2 per cent more of the population in Wales are over 65, but in Cardiff 14 per cent are over 65 compared with 23 per cent being over 65 in Conwy. So, the Assembly has huge challenges in its devolved functions in delivering appropriate healthcare. Mortality rates vary enormously with Merthyr having a 50 per cent higher mortality rate than some rural areas.

I have said how the configuration of NHS systems differs. The local health boards took over the commissioning in Wales in March 2003. Health Commission Wales was established in April 2003 and commissioned specialist services. It commissioned £40 million worth of specialist services in England, which is 10 per cent of its total budget. It is specifically for that reason that there must be collaboration with CHAI and CHAI must be involved in setting thematic reviews; for example, of cancer services, diabetic services and coronary heart disease.

The reason that the Assembly needs to have an inspectorate is to have this strong focus on Welsh health priorities but it must in the process collaborate with CHAI. I hope that that is the spirit of the wording of the amendments tabled in my name. In Wales we have community health councils, which are able to identify gaps in provision. The Welsh NHS structure needs to be considered. Assembly Ministers also need to be able to respond to the intense scrutiny they are now under through robust, transparent, thorough and speedy reviews that can withstand that scrutiny.

I shall move on to why the chair of an inspection service in Wales must be independently appointed. The appointment of the head of Health Inspection Wales should be by an independent process. I understand that the Minister should not be able to veto the appointment of the individual but only the whole process and require that it starts again. Health Inspection Wales must have editorial control over its reports and those reports must go simultaneously to the Minister for Health and Social Services in Wales and to the Assembly Committee for Health and Social Services. They would also go simultaneously to CHAI.

The director should be accountable to a senior assembly director, who is not the director of the NHS in Wales and should have right of independent access to the Ministers and the Assembly Committee for Health and Social Services. Complaints should be dealt with by the Assembly complaints procedure and the Ombudsman. Delegation of functions will be through the permanent secretary, not the director of NHS in Wales.

Formal protocols are required for working between Health Inspection Wales and other parts of the Assembly, and formal agreements are required for working collaboratively between Health Inspection Wales and CHAI because of the cross-border flows. The inspectors should be made up of permanent inspectors and lay assessors. I hope that there will be an exchange scheme within the NHS within the whole of the UK including exchange with inspectors in the NHS Quality Improvement Scotland so that we establish methodologies and robust cross-border inspections as patients move across the borders.

For Health Inspection Wales the work programme should be generated by them and signed off by the Minister. Within Wales, co-operation and co-working needs to be with other bodies, such as the Audit Commission, the Care Standards Inspectorate for Wales and Social Services Inspectorate for Wales, all working with the community health council. That means that Health Inspection Wales will take over inspecting all services which deal with patients in Wales, including those that have home care teams that are currently subject to inspection by other departments. I am not sure that the noble Earl, Lord Howe, is aware that some teams have not been subject to health service inspections at present and have been inspected by bodies such as weights and measures, which is completely inappropriate. Health Inspection Wales will address all of that within Wales. However, when we come to the cross-border flows it must work collaboratively with CHAI as part of the contract monitoring process.

The simultaneous inspections will look at clinical and financial performance by all providers and that needs to be wherever the patients are cared for. The information from that process will be in the public domain and any inspections and information obtained by Health Inspection Wales will be fast-tracked back to CHAI.

I turn to the data. Last year 31, 500 Welsh patients were cared for by English providers; 20, 000 of whom were elective and 11, 500 emergency treatment patients. However, the flow is also in the other direction. There were 11, 500 English patients treated in Wales; 2, 800 electively and 8, 700 as emergency patients. So to try to separate the way that patients are cared for across Offa's Dyke does not become feasible.

The cost of Health Inspection Wales will be contained within the current envelope of £3.1 million and the collaboration should meet the criticisms of the noble Baroness, Lady Noakes, raised in Committee, that the Secretary of State needs advice through CHAI. Health Inspection Wales reports which are on the web will certainly be immediately available to everyone. But the collaboration that must be established—I sought to provide for that in Amendment No. 330 tabled in my name—is to ensure that the minutiae of detail of intelligence that is available to Health Inspection Wales would be fast tracked into CHAI through their collaborative working arrangements and they would develop joint methodologies.

The amendments standing in my name support how the inspectorates within Wales are driven by the Assembly but also support collaborative arrangements in both directions across the administrative divide between the Assembly and the Department of Health.

My Lords, before the noble Baroness sits down, is she saying that a hospital surgeon in a given hospital might have to operate different standards depending on whether a person came from Wales or England? That sounds as if it would be very difficult.

My Lords, I am grateful to the noble Baroness, Lady Carnegy, for raising the question and for the opportunity to clarify it. No, the clinical standards are absolute. The clinical standards to which the patient must be subject will be the same wherever the patient is but the way that the service is delivered and configured is different, particularly as regards community care. For example, patients who receive care in England for a transplant will be transferred back into Wales for their ongoing care and support. Protocols need to be established between providers in Wales and England concerning the point at which referral back to the English service is triggered and about what is delivered and conducted within Wales so that patients will receive long-term care close to their home. However, acute management, for example, of transplants, or specialist paediatric services, will be conducted under the contract of the specialised commissioning services within this £40 million envelope. The contract monitoring processes need to check that the flow of care on both sides of the border does not mean that patients hit a gap when they transfer from the English provider back to Wales.