NHS Reform and Health Care Professions Bill

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Mr. Heald: We have obviously taken the matter as far as we can. These amendments are not designed to be put to a Division, and we should return to the subject on report. Obviously, if the Minister is able to write to me over Christmas, setting out any more detail about what is proposed, the size of the body, what assurances could be given that it would have an adequate budget for taking matters to court and issues of that sort, we would be grateful. Equally, we would welcome any assurances that the terms and conditions on which money is given will not be so restricted that the body feels that it does not have genuine independence. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Hutton: I beg to move amendment No.207, in page 75, line 34, leave out '14' and insert '15'.

The Chairman: With this it will be convenient to take Government amendment No. 208.

Mr. Hutton: Amendment No. 207 quite literally corrects a typographical error. It makes clear that the definition of ''financial year'', given in paragraph 14 of

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the schedule, also applies to paragraph 15. It is quite simply an amendment that alters one numeral on the face of the Bill. I hope that it will not be seen as controversial.

Mr. Heald: It would be helpful if the Minister briefly outlined what amendment No. 208 proposes, as it is obviously related to Northern Ireland. I do not know whether it is a typing error, or something similar.

Mr. Hutton: I apologise to the Committee. I do not seem to have my notes in my file, which is slightly embarrassing, but down to me.

Amendment No. 208 deals with the Northern Ireland Assembly's powers to request reports from the council, which, under the Bill, the council must comply with. The effect of amendment No. 208 is to specify more exactly than the original Bill the limits to what the council must do in these circumstances. In addition to confining the requests that must be answered to those subjects that come under the Northern Ireland Assembly's jurisdiction, it specifies that the Assembly's request must only be complied with if the subjects relate to Northern Ireland. For example, the regulation of pharmacy is a reserved matter. As it stands under the Bill, the council would be obliged to comply with the request to lay a report before the Northern Ireland Assembly on the regulation of pharmacy generally. This would clearly give the Assembly wider powers than the Scottish Parliament, and I think hat that would be inappropriate. The amendment would confine the scope of a request to report on pharmacy regulation, continuing the example to the regulation of pharmacy in Northern Ireland. That would be a more suitable topic for the Assembly to be asked about.

Mr. Burns: What would be the implications for the Bill if, at some point in the future, the Northern Ireland Assembly were, regrettably, to be suspended?

Mr. Hutton: In that event, the functions would revert to the Secretary of State; that is, the Government. I hope that that will not prove to be necessary.

Mr. Burns: I understand that if the Assembly is suspended, the Secretary of State and London take over the running of the Province for the period of the suspension. However, would that automatically mean that the powers in the Bill went to London, or would this part of the Bill be rendered inoperable?

4.45 pm

Mr. Hutton: My understanding is that powers would revert automatically to the Secretary of State. However, this is obviously a fine constitutional issue, and I do not want to mislead the Committee. I shall write to the hon. Gentleman with the information that he requests.

Amendment agreed to.

Amendment made: No. 208, in page 76, line 7, leave out from 'matters' to end of line 9 and insert

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    'concerning Northern Ireland (''transferred matters'' having the meaning given by section 4(1) of the Northern Ireland Act 1998 (c.47)).'.—[Mr. Hutton.]

Mr. Heald: On a point of order, Mr. Hurst. We were told earlier that only a very narrow debate, if any, would be allowed on schedule 7 stand part. In the light of the previous discussion, can I ask the Minister a question about paragraph 18?

The Chairman: I will allow the hon. Gentleman to do that in the context of a limited stand part debate.

Question proposed, That this schedule, as amended, be the Seventh schedule to the Bill.

Mr. Heald: I have just noticed that paragraph 18, which deals with meetings of the council in Northern Ireland, implies that public access to those meetings will be restricted under sections 23 to 27 of the Local Government Act (Northern Ireland) 1972. Is that so? Equally, what will be the position in the rest of the United Kingdom? Will meetings of the council normally be open to the public, or is it envisaged that they will take place in private?

Mr. Hutton: The hon. Gentleman is right about paragraph 18. On whether meetings of the council will be open to the public, the answer must be yes. The council will have to consider that issue when it undertakes its programme of work.

Schedule 7, as amended, agreed to.

Clause 24

Powers and duties of the Council: general

Amendment made: No. 199, in page 29, line 19, leave out '(5)' and insert '(5A)'.—[Mr. Hutton.]

Mr. Burns: On a point of order, Mr. Hurst. I thought I heard you say that we had approved amendment No. 119.

The Chairman: No, it was amendment No. 199.

Mr. Hutton: I beg to move amendment No. 200, in page 29, line 40, leave out from 'ended' to end of line 42.

This amendment, which I was trying to speak to earlier, deals with an inconsistency in the drafting of this clause and of clause 27(1). Subsections 24(3) and (4) are designed to do three things: to prevent the council from intervening in the cases of individuals that a regulatory body is considering; to allow the council to investigate a complaint about maladministration, which is dealt with further in clause 26; and to allow the council to exercise its public interest appeals powers as described in clause 27, but only after the regulatory body's proceedings have ended. As drafted, the words in brackets in clause 24(4), which the amendment will delete, suggest that, under clause 27, the council could take action, even in cases where it was decided not to undertake regulatory body proceedings. It was never intended that clause 27 should apply in such cases, and the amendment will remove any possible inconsistency between the two clauses.

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It might also help if I make clear the definition of ''proceedings'' in clause 24(10), which states that

    '''proceedings', in relation to a regulatory body, or one of its committees or officers, includes a process of decision-making by which a decision could be made affecting the registration of the individual in question.''

Mr. Heald: If a regulatory body refuses to investigate a complaint, can the council do nothing?

Mr. Hutton: The issue is dealt with in other clauses in terms of the meaning of final decisions, and the council's ability to exercise its right of appeal to the High Court in cases where an unduly lenient decision has been taken. The hon. Gentleman's point is an interesting one and I understand it entirely. In an effort to avoid deciding on a difficult case, proceedings might not be instigated at all. That could raise different subsidiary issues about the work of that regulatory body, which the council itself might want to initiate. However, we are discussing the public interest right of appeal in clause 27 and how it is supposed to be triggered. It is based on an unduly lenient decision of the regulatory body itself. The council might have to consider an alternative route for dealing with such issues, rather than using clause 27 to exercise its right of appeal against unduly lenient decisions.

The hon. Gentleman has raised a fair point about the regulatory body's deciding not to initiate a process. In that event, the matter would have to be dealt with in the first instance by the regulatory body itself. Any suggestion of a deliberate attempt to circumvent natural justice or proper public safety and scrutiny would be a matter of serious concern that the council would want to raise with the regulatory body. I ask the hon. Gentleman to give me time to reflect. In clearing up the inconsistency between clauses 24 and 27, it is certainly not the Government's intention to create a further loophole that would subvert the provision of better public confidence in professionally led self-regulation.

Mr. Heald: I simply wondered whether the council could undertake a judicial review of the regulatory body's decision under mandamus, and thereby require it to take a decision. Alternatively, is there some method by which it might be required to undertake an investigation? I am clearly happy for the Minister to give the matter further thought—I simply wondered whether a common law route might be available.

Mr. Hutton: It might well be, but the problem might also be solved by reference to the Secretary of State's powers in clause 26 to construct a regulation dealing with maladministration complaints. It is important to place on record the fact that it would be difficult to imagine a regulatory body discharging its functions properly in the sort of example that he gave. If there were clear evidence of such a decision by a regulatory body, it would certainly give rise to serious concern in the House and among the public at large. I am not aware of any complaints about regulatory bodies making such decisions, but I am aware that concern has been expressed by the public and Members of the

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House about decisions of regulatory bodies' fitness to practise committees, and so on. The hon. Member for Westbury (Dr. Murrison) will be aware of some of those. That complaint is more typical and common than complaints about decisions not to initiate proceedings.

We have tried to draw a distinction between decision-making processes involving the General Medical Council, the General Dental Council and any other body, because there is insufficient evidence to merit a proper fitness-to-practise decision-making process being initiated, and the decisions of the fitness to practise committee. The public interest is served in the case that we have tried to specify in the Bill when an unduly lenient decision raises serious issues of public concern. That is where we envisage council intervention. We certainly do not intend the UK council to have competence to examine every decision by a regulatory body not to initiate proceedings. As a matter of common sense and judgment, that must properly be left to the decision-making processes of the regulatory bodies.

Amendment agreed to.

Amendment made: No. 201, in page 30, line 7, at end insert—

    '(5A) The Council may not do anything in relation to the functions of the Pharmaceutical Society of Northern Ireland (or its Council, or an officer or committee of the Society) unless those functions are—

    (a) conferred on the Society (or its Council, or an officer or committee of the Society) by or by virtue of any provision of the Pharmacy (Northern Ireland) Order 1976 (S.I. 1976/1213 (N.I. 22)), other than Article 3(3)(e) (the benevolent functions),

    (b) conferred as mentioned in paragraph (a) by, or by virtue of, an Order in Council under section 60 of the 1999 Act or an order under section 56 of the Health and Personal Social Services Act (Northern Ireland) 2001 (c. 3) (which makes provision corresponding to section 60 of the 1999 Act), or

    (c) otherwise conferred as mentioned in paragraph (a) and relate to the regulation of the profession regulated by the Pharmacy (Northern Ireland) Order 1976.'.

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