NHS Reform and Health Care Professions Bill

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Mr. Burns: Oh yeah?

Mr. Hutton: Yes, it was. I can assure the hon. Gentleman of that.

Mr. Burns: But did the Minister decide that it was the amendment that he wanted to table after he had seen our amendment, in all its wisdom?

Mr. Hutton: I can honestly say to the hon. Gentleman—of course, everything that I say is honest—that I had not seen his amendment.

Mr. Burns: I do not believe that. [Hon. Members: ''Oh!'']

The Chairman: Order.

Mr. Hutton: I can give the hon. Gentleman my absolute, 100 per cent., personal assurance that I did not see his amendment until it was drawn to my attention by my officials when we were trying to table our amendment. Perhaps they had seen it earlier, but I had not, and I did not realise that it was an issue until that moment.

The hon. Gentleman did the right thing in tabling amendment No. 187. It is the first time that I can remember a Minister adding his name to an Opposition amendment. In fact, I do not think that it has ever happened before. I am not inviting you to participate in the debate, Miss Widdecombe, because that would not be right, and I am quite glad that you are not doing so. The amendment, which we obviously support, deals with the appointment of employees and further reinforces our determination to confirm the independence of the new council.

Amendment No. 226 would require the regulations about the appointment of members provided for in paragraph 5 to be made by affirmative order. As I am sure that the hon. Member for North-East Hertfordshire has anticipated, I am unable to accept it. I shall explain why in a moment.

Amendment No. 188 would ensure that the seven English members of the council who are not appointed by the regulatory bodies arrived there by a process of recommendation from the NHS Appointments Commission followed by appointment by the Secretary of State. There is a problem with the amendment in that it refers directly to the NHS Appointments Commission, which was set up under secondary legislation. It is, as Government amendment No. 203 makes clear, a special health authority, and the primary legislation needs to reflect that reality. Amendment No. 203 is designed to achieve precisely the same effect as the amendment tabled by the hon. Member for North-East Hertfordshire. I hope that he is therefore reassured about our intentions.

I am afraid that I have to disagree with the intention underlying amendments Nos. 189 and 256.

Dr. Harris: Amendment No. 203 states:

    ''The Secretary of State may direct a Special Health Authority''.

Could not it have been drafted to say that the Secretary of State ''shall'' so direct, given that under amendment No. 188 the appointment would be made on the recommendation of the NHS Appointments Commission instead?

Mr. Hutton: Let me make myself clear. The Secretary of State will delegate his powers of appointment to the special health authority, the NHS Appointments Commission. We chose the word ''may'' over ''shall'' to reflect the fact that appointments would be made by the NHS Appointments Commission on behalf of the Secretary of State, not by the Secretary of State himself. It is possible that another body could be set up to carry out a similar function, and if we used the word ''shall'' we could find ourselves locked into a pattern of appointing people in the same way as before. A degree of flexibility is therefore required.

I hope that I am making it clear that using ''may'' instead of ''shall''—we always have these debates in Standing Committee, and I could probably refer the hon. Gentleman to a debate that we had six months ago—does not change the substance of the Government's intention to delegate the function to the NHS Appointments Commission. The possibility that a future Secretary of State or Minister might decide that a different body should exercise the function on his behalf necessitates some flexibility but does not detract from that intention.

12.15 pm

Dr. Murrison: Will the Minister clarify that further? As I understand it, the purpose of the Government amendment is to get over the difficulty created by the reference to secondary legislation. I do not see why the word ''shall'' should not be used instead of ''may'', given that it would, as he said, firm up the Government's intention that the NHS Appointments Commission make such appointments. The hon. Member for Oxford, West and Abingdon made a good point.

Mr. Hutton: I apologise to the hon. Gentleman if my explanation was clumsy and he was unable to follow it.

At the moment, the only body that can make the appointments is the NHS Appointments Commission, but that could change in future if the Secretary of State decided that a different entity should do it. If the Bill says that it ''shall'' be done by the NHS Appointments Commission, difficulties will arise if we want to revisit that. Moreover, a wider problem stems from the fact that the legal basis of the NHS Appointments Commission is in secondary, not primary, legislation, so the Bill should not contain a direct reference to it.

The ''may'' is not designed to give the Secretary of State the option on whether to delegate the power, but to leave open the question of whom he delegates it to. That is the difference between ''may'' and ''shall'' in this context. I hope that that has resolved the issue for the hon. Gentleman.

Dr. Murrison: Would the Minister have been happy to accept amendment No. 188 were the NHS Appointments Commission to be contained in primary legislation? In other words, is this purely a technical issue to do with the place that it occupies in primary or secondary legislation? If not, I still do not understand his objection to substituting the word ''shall'' for ''may''.

Mr. Hutton: It would certainly be easier to contemplate using the word ''shall'' in those circumstances, because the House would have established in primary legislation the legal framework for the appointment-making process to be located in a particular place. However, the House has not done that. The Secretary of State has used his powers under the 1977 Act to set up a special health authority to discharge those functions for him. Because that situation could easily change, it is best that we have a discretion as to who exercises the appointment-making function. That is what ''may'' rather than ''shall'' seeks to do. It does not seek to affect whether or not the Secretary of State delegates the function to the NHS Appointments Commission, because he will do that. The argument is partly about primary versus secondary legislation. That in turn affects the question of whom the Secretary of State can delegate the function to, which could change because it is not regulated by primary legislation.

Amendments Nos. 189 and 256 are more problematic. Amendment No. 189 would replace a majority of one on the council for those representing the needs of the public and health care providers with an equality of voices between those groups and the appointees of the regulatory bodies.

Amendment No. 256, which was tabled by the hon. Member for Oxford, West and Abingdon, would go a significant step further by giving the regulatory bodies a majority of one. I fundamentally question that approach. A key function of the council is to promote the interests of patients and other members of the public. Professor Kennedy was very clear about that. He said that

    ''it needs the widest involvement of professionals, of the principal employer and of the public. It cannot achieve its purpose if it is a system which is designed and operated solely by particular professionals for their professional peers. Nor can it achieve its purpose if it is solely a matter for employers within the NHS. An effective system of professional regulation must be owned collectively.''

That is what we are trying to do, but, as we made clear during the debate on clause 23 stand part, with a strong emphasis on what the council's main purpose should be.

Dr. Harris: Does the Minister accept that what he has just quoted—he accepted that he would necessarily quote selectively from such a bulky report, as we all have—referred to the system of regulation? That was the subject of his quote, not the council or even the council foreshadowed in the NHS plan. If it is read in context, it is a statement that the whole system of regulation needs to have the widest possible involvement. It might be thought to be slightly subverting the Kennedy report, as we all may be tempted to do, to imply that that is a direct response to amendment No. 109 or, particularly, to amendment No. 256.

Mr. Hutton: With the greatest respect to the hon. Gentleman, I do not think that he is right. The UK council will be part of the regulatory firmament; it will not be separated from it. The point made by Professor Kennedy applies equally pertinently to the establishment of the UK council.

Mr. Heald: Does the Kennedy report refer anywhere to giving the council a majority of lay representatives? My recollection is that Kennedy was anxious throughout the report to make the point that the council should be collective, equal and at arm's length from regulators and Government.

Mr. Hutton: The hon. Gentleman is right and there is no specific recommendation to the effect that the UK council should have a majority of one in the number of people who are not drawn from the regulatory bodies. We have looked at the spirit of the proposals in the report and laid our proposals before the Committee and the House to give effect to that. As I said in my opening comments, the Government believe that of all the alternatives on offer, the proposals in clause 23 are closest to the spirit of Professor Kennedy's report.

Mr. Heald: Will the Minister think about the matter over Christmas?

Mr. Hutton: I have many things to think about over Christmas. I shall be the Minister on duty in the Department of Health, so I shall be busy, but of course we are happy to reflect on the matter and take account of the hon. Gentleman's arguments. I assure him that we shall do so. However, I believe strongly that the proposals before the Committee enjoy the support of the regulatory bodies, particularly those concerning composition of the council, although I know that the BMA has a slightly different view. The regulatory bodies are supportive of our proposals for membership of the council and they probably enjoy the widest consensus and support that it is possible to imagine. I accept that others will have a different view and we have heard some of them today.

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Prepared 11 December 2001