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Mr. Bercow: Does my hon. Friend agree that, in relation to this group of amendments, the Government must be convicted on one of two charges? Either the Minister of State knew perfectly well at, or shortly after, the conclusion of Committee on Thursday night what the content of the new amendments was to be--in which case it was, at the least, a gross discourtesy not to table them earlier and to give Members and outside organisations an opportunity to study them--or, alternatively, the right hon. Gentleman did not know until some time after 10 pm on Monday what the content was to be--which, if true, is even more disturbing.
Mr. Hammond: My hon. Friend is right. The latter prospect alarms me most; it suggests that rafts of further amendments will be tabled in the other place which we shall have an extremely limited opportunity to scrutinise in this place.
To take up my hon. Friend's first proposition, I was quite surprised to hear the Minister's comments on new clause 11. If I heard the right hon. Gentleman correctly, he suggested that the need for an enhanced criminal record certificate was identified during the consultation procedure last summer. If that is so, I am sure that my hon. Friend will agree that it begs the question--why did the Government not table the amendment during Committee? Indeed, why did they not draft the original Bill so that it reflected the requirement for an enhanced criminal record certificate? I intervened to ask the Minister whether he could throw any light on the matter, but I am none the wiser.
Mr. Bercow: The situation becomes curiouser and curiouser. As you know, Madam Deputy Speaker, I am a kindly chap and always charitable towards Ministers; far be it from me ever to cast aspersions on the competence--still less on the mindset--of Ministers. However, in the circumstances that my hon. Friend has just pithily described, is he not concerned that the Minister is becoming almost as unfocused as the right hon. Member for Hartlepool (Mr. Mandelson)?
Mr. Hammond: I suspect, Madam Deputy Speaker, that you would not want me to pursue the line of argument towards which my hon. Friend tempts me. I am sure that the Minister has heard my hon. Friend's comments and that he will reflect on his own state of mind in his private moments.
If the Government are telling us that an enhanced criminal record certificate is a vital part of the procedure--the mechanism outlined in the measure--new clause 11 is, of course, essential to the Bill's architecture and we have no argument with the substance of the provision. However, the Minister owes the House an explanation as to why, when the requirement appears to be central to the working of the Bill, the Government failed to identify it at an earlier stage; the provision is not about a missing comma--it is a major requirement that amends another piece of legislation. Had the Government failed to recognise the problem and amend this Bill, an absurd situation would have arisen: practitioners would
have been required to obtain a certificate under the Bill that they were not empowered to do under another piece of legislation--the Police Act 1997.Either the Minister must explain why the Government have only so recently identified that error in their thinking, or--to refer to the right hon. Gentleman's earlier remarks--he must explain why the Government neither included the requirement in the original Bill nor tabled it as an amendment in the Standing Committee. Bluntly, the Government ought to tell the House whether they became aware of that shortcoming only after the conclusion of the proceedings of the Standing Committee. I look forward to hearing from the Minister in due course.
Government new clause 12 provides for conditional inclusion in lists, with an adequate right of appeal against the conditions. Once again, we have no argument with the principle of the proposal. When I first read the new clause, I wondered why it applied only to providers of general medical, dental and ophthalmic services and so on. I initially concluded that the explanation was that the Bill will already write into the National Health Service Act 1977 proposed new sections 43D(3)(d) and 28DA(3)(d), which will, in effect, provide for conditional inclusion in lists. However, I continued to read the amendment paper and discovered that the Government will amend those provisions under Government amendments Nos. 69, 108, 112 and 113. I can only describe that as a mess.
It appears that the Government initially forgot to include part II services in the arrangements for conditional inclusion and now want to correct that under new clause 12, but they then realised that the arrangements that they had included on the conditional inclusion on lists of PMS and PDS providers were faulty and needed to be corrected, which they will do under Government amendments Nos. 69, 108, 109, 112 and 113. Perhaps the Minister will explain exactly what happened.
Perhaps the Minister will also explain why Government amendments Nos. 69, 108 and 109, under which the arrangements on conditional inclusion in lists for PMS and PDS providers will be amended, and Government amendments Nos. 112 and 113, under which the supplementary list will be similarly amended, do not use words similar to those in new clause 12. Why does the right hon. Gentleman still propose for PMS and PDS providers and for the supplementary lists a different regime from those that proposed in new clause 12?
In particular, the two provisions diverge on what I shall call a motive test. Under new clause 12, proposed new section 43ZA(2) will provide such a test. It states:
- "The imposition of conditions must be with a view to--
preventing any prejudice to the efficiency of the services . . . or preventing any acts or omissions within section 43F . . . "
Government amendments Nos. 40 to 109, which could give the House serious indigestion, are largely technical, but I want to make one or two other points on them. Of course, it is disappointing that the Government have had to table them on Report. On Government amendment No. 59, will the Minister tell us why it has been necessary to replace the term "director of" with the phrase
- "member of the body of persons controlling"?
-
A perfectly good definition of the word "director" exists in company law, which deals precisely with people who exercise the functions of a director and are part of the body controlling a company but may not be called a director. Why have the Government found that amendment necessary? Does that presage a wider amendment of company law to change the definition of the word "director"?
5.30 pm
At a substantive level, amendment No. 75 will create a situation in which, for example, the whole business of a chain of retail pharmacists could be placed in jeopardy by the actions or omissions of a director which may have taken place not during his service as a director but formerly. Perhaps he has failed to divulge information to his current employers. I am charitable enough to imagine that it is the Government's intention that the power in the amendment will in fact be used to impose a condition requiring that person to stand down or to cease to have control over, or a hand in, the running of the business. That would be entirely understandable, reasonable and fair. If the Minister could make that explicit when he winds up this short debate, we would feel much more comfortable.
Unless I missed it amid the routine of dealing with the other amendments, the Minister failed to acknowledge the small part that the Opposition played in amendments Nos. 84 and 85. We achieved a small victory in Committee by extending the period allowed to practitioners for appeal from 21 days to 28 days, bringing it into line with the appeal deadlines for General Medical Council hearings. We are grateful to the Minister for tabling the amendment, but not for his failing to acknowledge its provenance.
I have one other concern. Amendments Nos. 96 and 99 make changes to the use of the words "practitioner" and "person". They change the word "practitioner" to "person" in a number of places in new section 49K. Superficially, that is an attractive change. A practitioner is a practitioner if he practises, and if he is prevented from practising it is arguable that he ceases to be a practitioner, while remaining a person. However, the word "practitioner" remains in new section 49K(1) at lines 5 and 12 on page 28 of the Bill. Amendments Nos. 101 and 102 also change the references from "practitioner" to "person" in relation to the appeal procedure in new section 49K(4)--at line 32 on page 28, for those who follow such matters avidly. Amendment No. 102, which extends the same subsection, also uses the word "person". The wording appears to me and to my hon. Friends to be inconsistent, but that is possibly the result of shoddy drafting. We have ended up with a single subsection that refers both to "practitioner" and to "person".
This large group of amendments amply demonstrates the dangers of rushed legislation. It represents a warning to Ministers of the pitfalls of rushed legislation in general and of this Bill in particular. I am sure that the Minister cannot be happy that his officials, having trawled through the Bill, have found in the space of a week about 100 matters that need correction. He will be as alarmed as I am at the prospect that there will be hundreds more to come before the Bill sees the light of day in another place.
I concede that no issues of great significance are at stake in the substance of the amendments, but I should like to hear the Minister's answers to our specific questions about the Government amendments and new clauses, and to hear something of the story that lies behind the extensive and radical group of amendments that has become necessary.
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