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Mr. Bercow: Will my right hon. Friend give way?
Mr. Forth: Yes, I shall let my hon. Friend have a go.
Mr. Bercow: I understand my right hon. Friend's objection to, and general concern about, the excessive
rigidity or specificity, but is there not another concern, which I would usually expect him to express? Unless there is some codification in the Bill, the danger is that unamended Henry VIII clauses will allow a usurpation of a power, to which he would usually object.
Mr. Forth: Of course I accept what my hon. Friend says, but my assumption is that the Secretary of State will soon be a Conservative Secretary of State. Therefore, what my hon. Friends have in mind and what my hon. Friend the Member for Beckenham (Mrs. Lait) suggested a moment ago could be achieved elegantly and amply under the existing wording. I know that none of my hon. Friends assumes or even expects the Government to be re-elected, so there is no need to put a defensive and protective provision in the Bill and set it in concrete.
However, my hon. Friend the Member for Buckingham (Mr. Bercow) has made an important point, as usual, and, as always, we are in a dilemma as to whether we, as legislators, believe in a general power for a Secretary of State, with the flexibility that goes with it, or think it preferable to include ever more detail in legislation--perhaps to restrict the opportunities for a Secretary of State to intervene. There are more than sufficient powers for the Secretary of State in the Bill. Henry VIII is wandering through the Bill, and this attempt to pre-empt or restrict that probably will not succeed. I remain to be convinced by the amendments, although I will listen to the many different views that will be expressed over the next hour or two.
Amendment No. 82 may be the most interesting and worrying of the amendments and proposes something with which we have become familiar--the powers of delegation. It says:
- An authority may make arrangements with persons under which they, or members of their staff, may perform functions of members of the staff and of the authority.
Such provisions always lead to wider issues, as we have seen in other Bills. How far does the Minister believe the proposal will go? Could there be restrictions on the persons with whom arrangements are made and to whom delegation is given? Either we take a fairly restrictive view or there will be a flexible arrangement. The Minister must assure us that the exercise of powers under the amendment would be limited and restricted and that a guarantee or safety mechanism will be available so that there is no danger of delegation to persons who are not fully qualified.
If the authorities find themselves under pressure to fulfil their responsibilities, there may be a risk of delegating to the wrong people, and we will be right back at the difficulties with which the Bill is trying to deal. The present wording--even with the imprimatur of the Minister and the Secretary of State--worries me. I might have been reassured if it had said "appropriately qualified persons" or "persons with appropriate references". However, the current wording appears to leave the matter loose and over-flexible.
Mr. Hammond: Does my right hon. Friend conclude that those persons to whom the powers are delegated will have all the powers of entry that inspectors have under the Bill?
Mr. Forth: That must be a suspicion. Some wide powers may devolve, worryingly, to unspecified persons.
It is not good enough for the Minister to say that flexibility is needed and that provision must be made for other people to be brought in. In this of all matters--given all the sensitivities that surround it, and all the history behind it--if we are to legislate properly, and provide the reassurances and guarantees that are required, we must have a form of words that gives us more reassurance than we have now.5.45 pm
Mr. Bercow: As the devolution of responsibility may entail contracts with outsiders, can we at least be reassured by the Minister--in so far as he feels able to attend to the debate--that such arrangements will be undertaken only after a process of competitive tendering? Or will this take place simply on the basis of the old pals act?
Mr. Forth: I hope that others are listening, although the Minister patently is not. Perhaps he will be appropriately advised at the appropriate time, although it may take quite a bit longer than he thinks if he carries on in the same way. I may have to repeat everything when I think he is listening to me, and I doubt that he would want that.
My hon. Friend the Member for Buckingham has raised an interesting point. The mechanism whereby the delegation is to be achieved is unspecified. The wording gives no hint or clue about the connection between the delegating authority and those to whom the important powers may be delegated--including potentially, as my hon. Friend the Member for Runnymede and Weybridge (Mr. Hammond) pointed out a moment ago, powers of entry, inspection or whatever.
We are completely in the dark about who the people concerned may be, what guarantees or reassurances we may have about them, their relationship--contractual or otherwise--with the authority, and the extent to which the authority may have sought appropriate reassurances in terms of qualifications or references. We know none of that, and the wording gives no clues. I fear that amendment No. 82 poses at least the danger--I put it no higher than that: not the likelihood, but the possibility--that a risk of some kind could emerge. That, as I understand it, is exactly what the whole Bill is intended to avoid.
The new clause and Government amendments illustrate all too well the dangers that we encounter when we embark on the route of bureaucracies, regulations, regulatory powers, regulatory mechanisms and the like. No matter how well justified such measures may appear on the face of it, we can readily see those dangers just from this first canter around the course. For we have not yet reached the meat of the Bill: although we are discussing important matters, there is much more to come. Already, in scratching the surface in a rather superficial way, we have dug up all sorts of difficulties. The Minister could not reassure us, and--if I may say so--even my hon. Friend the Member for Runnymede and Weybridge,
in his much clearer and more concise speech, was unable to answer all the questions that, in my modest and very brief way, I have tried to pose.
Mr. Bercow: Will my right hon. Friend give way?
Mr. Forth: I will give way once more, but I am trying to conclude my speech.
Mr. Bercow: I am exceptionally grateful to my right hon. Friend for his characteristic generosity. I am sorry to interrupt his flow, but I wonder whether he can answer a question. Speaking to amendment No. 32, the hon. Member for Sutton and Cheam (Mr. Burstow) argued that the regulations that he advocated should be subject to the negative or the affirmative procedure. The capacity to debate the regulations, however, is surely of the essence.
Mr. Forth: It is to my hon. Friend and me, but I do not recall the hon. Member for Sutton and Cheam (Mr. Burstow) saying as much. I do not think that the Liberal Democrats are all that bothered about parliamentary scrutiny, or about negative or affirmative resolutions. They are not here very often, and when they are they seem to be in the Government's pocket. My hon. Friend and I pay close attention to such matters, but I do not think that we can look to the Liberal Democrats to help us, now or in the future.
All in all, an awful lot more will have to be said about the new clause and some of the amendments before I am satisfied. Although the Minister did not listen to some of what I said--I cannot imagine why--I know that, having been properly advised, he will be able to give full and comprehensive answers to my points and those made by others. We shall have to make our judgment on the basis of those answers when--somewhat later, I suspect--we vote on the new clause and amendments. The position is certainly not self-evident to me.
Dr. Brand: This is the first time that I have had the privilege of following the right hon. Member for Bromley and Chislehurst (Mr. Forth) and it is a curious experience. At the outset of his contribution, he declared himself as a legislative nihilist--he does not believe in regulation and clearly feels that the safety of vulnerable people should be left either to the marketplace or to self-regulation. He then talked about having more powers for the Secretary of State without making them explicit in the Bill, and turned that argument round and said that the Bill was not explicit enough, so I find that confusing.
The right hon. Gentleman made a threat, which I did not find alarming; I was not surprised at his comment. It was not even an implied threat. It was that we might all be punished tonight by some means not yet declared if we did not toe the line. I am not aware that activities in the Chamber are designed to indulge either masochist or sadistic tendencies. I am sure that we will get many contributions from the right hon. Gentleman. If he would let me know how long he is going to take, we can rest while he makes them.
I address my main remarks to amendment No. 31, which deals with clause 31. There is a concern that we do not give the commission undue powers. Clause 31 says
that the registration authority can require--presumably, it is a statutory requirement--to have information made available if it is "necessary or expedient". I can see that it may be expedient for a registration authority to ask for all sorts of information, but I am also aware that red tape is a major imposition, especially for small businesses, and that information does not come free. It takes time and resources. Incidentally, it also takes time and resources to analyse it once it has been obtained. It is clear from the rest of the Bill and from some of the earlier comments that the commission will have a role over and beyond registration and inspection.It is right that the commission should have statutory powers to require information to be made available where it is dealing with the safety of the public. Therefore, in relation to its registration and inspection function, it is totally appropriate that anyone running an establishment described under the Bill should be made to provide information when it is requested, but I have an anxiety that that statutory requirement might be extended, because it is convenient and expedient for the registration authority, to other areas such as the giving of strategic advice to the Minister on how many beds might be needed in 10 years, and what the industry's intentions are on retirement and non-retirement.
Those are important issues. Clearly, consultation with the industry is important, but it should be consultation on equal terms, rather than a requirement by law. It is a simple amendment. I hope that the Minister will take it on board. It in no way diminishes the powers of the registration authority in its primary function: the protection of the public.
I touch on the other amendments in the group, notably Nos. 3 and 32. My hon. Friend the Member for Sutton and Cheam (Mr. Burstow) Sutton has squared the circle in relation to regulation and inspection of acute and chronic services in the private and public sectors. In my clinical practice, I sometimes find it difficult to decide in which of the four categories a particular patient is in the course of treatment or the course of a disease. The permutations are quite large. It would be helpful if we had a common regulation and inspection regime.
To have the Commission for Health Improvement as the specialist hospital arm, the specialist medical arm, of a national commission makes extraordinary sense. It would still allow the Government to have their own machinery to advise them, but it would also create a healthy, slightly arm's-length relationship, between the Secretary of State in his managerial function with regard to the national health service and the Secretary of State in his regulatory role through the Commission for Health Improvement. I urge the Government to look at that as a way of still accepting that the NHS is different from the private sector, but overcoming their dogmatic doubts about a common way of dealing with the problem.
As usual--it is the usual phrase that we used in Committee--I look forward to the Minister's response. I hope that he will give us some confidence on small matters, but that he will consider the real nub of the argument, which is the safety and quality of standards for all people needing medical, nursing or caring services, irrespective of who provides it and where it is provided.
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