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Health and Social Care Bill

My Lords, we have heard many expert contributions today, not least from the noble Baroness, Lady Greengross. As it happens I have a little expertise, or knowledge anyway, in this area, both as an ex-member of various regulatory bodies and an ex-member of the Royal Commission on Long Term Care for the Elderly chaired by the noble Lord, Lord Sutherland. But I want principally to contribute a different kind of expertise as someone who has long been steeped in Whitehall life, both as a political adviser and as a political journalist. Two syndromes that I spotted through this long life are relevant to this Bill. The first is what I would call the ““my greatest hits”” syndrome where the Government introduce a Bill, often very heavily opposed, which is thereafter acclaimed to be a success and so goes on the ““my greatest hits”” list. Whenever a problem in any way analogous arises, a Minister picks it off the shelf and says, ““My greatest hit was this. I will do that again””. This Government started off with their greatest ever hit which was the amalgamation of the financial services regulators under the Financial Services Act. Until Northern Rock recently it was proclaimed the most wonderful success. Then nearly as good, they tried it again with their next greatest hit, Ofcom. That was a pretty good success, too. Then—I am cutting the story a bit short—a few years later they tried it with the Equality Commission. It is too early to say whether it is a success. I personally have my reservations but it went on the list nevertheless. So here we are with health and social care. Let us have another greatest hit in the form of a new regulator. This does not mean of course that it is wrong to do this. It does mean that the House and the country should look at this issue with the greatest care because in my experience of popular music, which is even less than my experience of this field, one decade’s greatest hit is the next decade’s greatest flop. Another syndrome that I identify in the Bill lies in Ministers’ eternal desire, which is true of all Ministers of all parties at all times, to get the best of all worlds. In regulation it has worked like this: all Ministers of all parties, all times and all worlds are signed up to the better regulation agenda, by which is meant the less regulation agenda. However, they find a real difficulty with this. On detailed examination, they find that many of the existing regulations, if not most, are either justified or politically jolly difficult to get rid of. I am thinking of, for example, the way that we are told at one time that the regulations on school trips are so tough that they prevent children being taken to other countries or places where they would benefit from those experiences, and then some poor child suffers a misfortune and the same people explode into print, demanding tougher regulation to make sure that it does not happen again. So what is a poor Minister to do? In the field of regulation, the answer is that if you cannot get rid of the regulations, get rid of the regulators. So the present Prime Minister, as Chancellor, announced a big cut in the number of regulators, of which the Bill is one fruit. Again, that does not make it wrong, but it means that we should look at it with particular care. Legislating by rote law is not a good way of legislating. When we do, we find a great flaw, such as that that lies at the heart of the Government’s case for this Bill—at least for Part 1. The Government rightly point out that health and social care must come more closely together. The noble Lord, Lord Sutherland, and I have advocated that for years. But from that the Government leap to the conclusion that the two should be regulated in the same way and that the regulations should come more closely together. Regulating healthcare and social care are very different activities. Noble Lords should think about what is required if you are regulating a large hospital. You need data, facts and figures, statistical risk-assessment—for example, comparison of whether one hospital is doing better than another regarding its heart bypasses—and you need ultimate sanctions such as closing down the bloody place if it is failing. That is how health regulation works. Think what is required if you are regulating, say, a residential home for four elderly people, run, as many are, by an ex-nurse. Of course you need to be firm, but you need also to be flexible—to educate rather than instruct; to incentivise rather than penalise; and to help people achieve a higher standard. Remember that the ultimate sanction of closure may be all right for a hospital but is not all right for old peoples homes, because the evidence is that old people die if you move them in their extreme old age. I am reminded, too, of the Government’s previous venture into regulation in this field—the regulation of old persons homes. It stands out in my mind. I remember a proposal to metrify that Bill, whereby a room with two elderly people should measure at least 10 metres by 10 metres, instead of 10 yards by 10 yards, until it was pointed out to the Government that this measure would close a large number of uneconomic old persons homes up and down the country. The Government eventually backed off. Thank God they did, but that does not exactly reinforce one’s faith in the Department of Health as a regulator in this field. Anyone reading this Bill will see the emerging dominance of the health mode within it. Healthcare will run the show. As the briefing on this debate from Action on Elder Abuse states: "““There must be a retention of an inspection regime that carries out personal inspections and visits to services, rather than a data-trawling and survey-led approach as is currently used in health regulation””." We should consider also the costs of reorganisation. I was brought up in government in the 1970s in the Department of the Environment, where the mantra was: ““If there is one thing worse than local government reorganisation, it is local government re-reorganisation””. This is not a reorganisation, nor is it a re-reorganisation. It is a re-re-reorganisation—the third since 2002. The National Care Standards Commission, recommended by our royal commission, started work on April 1 and its abolition was announced on April 17. This is madness. Reorganisations involve back-minding, turf-grabbing and office politics of every kind. What convinces Ministers that the two-year hiatus in effective regulation that will accompany this merger justifies it? The only regulator in this field that I know well is CSCI and I think that it has done a first-class job. In conclusion, we should have one test and one test only for this Bill—will it improve services for users of healthcare and social care? Some of us believe that the case is not proven and that the legislation is therefore palpably premature. At the very least, big changes will have to be made to the Bill in this House—with ministerial agreement if possible; with the votes of your Lordships if not.