NHS Reform and Health Care Professions Bill

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Mr. Heald: Does the hon. Gentleman agree that the health service commissioner's power to make special reports to both Houses of Parliament, on which the amendment is based, has worked well and is seen as almost the most powerful tool in bringing matters to

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a head? Such a provision has the advantage of leaving Parliament's accountability intact, while still being a pretty strong measure.

Dr. Harris: I strongly agree. If a clash between one of the regulatory bodies performing its functions as it saw fit and the council's function of protecting the public led to a direction being issued under the Bill, that is something that Parliament should know about. The amendment would put the onus on the Government to intervene through secondary legislation, or whatever is required, to bring about a resolution.

It is in the nature of such bodies that individual cases are discussed, if not behind closed doors, behind doors that are some way from the House, and I would be alarmed if I thought that arm-twisting, even of a statutory nature, was being applied to a regulatory body without the House being aware of it. This is an important issue for the public. The Government may pray that in aid of their desire to ensure that there are adequate powers of direction. On the contrary, however, it strengthens the case made by the movers of the amendment that Parliament should be made aware of any stand-off between a regulatory body and the council—especially given the Government's view that council members appointed by the regulatory bodies should not be in the majority.

Mr. Burns: I do not intend to detain the Committee for long. I support the amendments and agree with the comments of my hon. Friend the Member for North-East Hertfordshire and the hon. Member for Oxford, West and Abingdon.

Clause 23, which lays out the functions of the council, is couched in eminently reasonable, non-confrontational terms, using words such as ''encourage''. Clause 25 uses rather harsh language to give the council teeth. That may not be in the best interests of the working of the system once the Bill is enacted.

Before the Minister rejects the amendments out of hand, I urge him to give genuine consideration to amendment No. 186 in particular. Clause 25 takes a sledgehammer to crack a nut. I am not convinced that such harsh language is necessary, and the Government should be prepared to consider toning it down. We do not want the system to fail to achieve the Government's aims, but we want it to achieve them in a more conciliatory and reasonable way.

Dr. Murrison: I support amendments Nos. 186 and 238. The question is not simply one of language, although language is important. We want to encourage a constructive dialogue between the regulatory bodies and the council. Of course, the amendments are very much linked. In the event of a regulatory body's failing to take all reasonable steps, the commission would have recourse to Parliament under amendment No. 238, and I welcome that fact.

In the light of the Kennedy report and other such developments, we need to recognise the good work of the regulatory bodies in putting their own house in order. I agree with my hon. Friend that clause 25 looks a little harsh in the light of those improvements.

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5.30 pm

Mr. Hutton: Two issues arise from the amendments. The first, which arises from amendment No. 238, concerns the way in which we envisage that the duty to co-operate will apply. The hon. Member for North-East Hertfordshire is right: in deciding whether a regulatory body has complied with its duty to co-operate, a court will have to take into account the question of reasonableness. In that regard, there is not a great deal between us. He is right to say that that principle is implied in the Bill, and that is certainly how we expect the duty to apply.

The second issue relates to the heart of the matter—the council's relationship with the regulatory bodies, and the nature and purpose of its existence. Why is it there, what is it designed to achieve and what change will it ultimately be able to bring about? I have listened carefully to the arguments of Opposition Members and of the regulatory bodies, and I know that members of the Committee received copies of correspondence from Professor Wilson, who has acted as advocate for the regulatory bodies in the past few days. He and I have discussed the issues in some detail.

Dr. Harris: Is the Minister saying that all members of the Committee have received a copy of that correspondence? I have not seen a copy of it.

Mr. Hutton: My understanding was that all members of the Committee had received a copy. I will ensure that the correspondence is available to the hon. Gentleman and to others, because it is very important.

The issue is a fundamental, full-on question about the role of the council. I agree entirely with many of the points that Conservative Members made about the way in which this part of the Bill should work, and the distance between us is probably not as great as has been suggested this afternoon. In particular, I was struck by the comments of the hon. Member for West Chelmsford (Mr. Burns) about the need to conciliate and to avoid harshness. I agree that there is such a need, but his reading of the clause is not mine. I do not consider it harsh; nor has it been worded in anything other than a spirit of conciliation, particularly in light of amendments Nos. 247 and 248, which we shall discuss in a moment. A process of conciliation is precisely what we envisage will apply in such cases. I also agree with the hon. Member for Westbury about the need to encourage constructive dialogue. That will be reflected in the way in which the council goes about its business.

However, I disagree with Opposition Members' suggestion that clause 25(2), which is at the heart of the matter, is open-ended. No one who reads it could possibly construe it as having been designed to be open-ended. It makes it clear that, before taking action, the council must be satisfied

    ''that it would be desirable to do so for the protection of members of the public''.

That is a clear steer that the provision in no way constitutes a right to roam across the regulatory landscape at will, interfering in the rule-making freedoms of regulatory bodies. It is a specifically focused power, which we have drafted as best we can,

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for dealing with what can best be described as extreme cases where a majority of the council believe that action must be taken to protect members of the public. That is an important caveat. If there were no such qualification, I would agree with the hon. Member for Westbury that the provision constituted a right to roam across the rules of regulatory bodies, but there is such a qualification. We would never include a provision that was designed to give the council such far-reaching powers.

In setting up the council, it is very important that we give it only the powers that it needs to do the job that we think needs to be done. That is what both clause 25(2) and clause 27(2) seek to do in relation to public interest in the right of appeal to the High Court in cases of unduly lenient decisions by a regulatory body. Those two powers are specific and are designed to operate in limited circumstances. During an earlier debate, I was asked in how many cases we envisaged such powers being exercised. I should be disappointed if there were any. We look to the regulatory bodies to safeguard the public properly, but there have been cases—I shall refer to one in due course—where there was substantial doubt as to whether that happened. In the limited number of cases where a serious issue affects public safety, the council is undoubtedly the right body to take a step forward by ensuring that the rules are tightened.

I understand perfectly the concerns expressed by the regulatory bodies, and we have tried to meet them half way through the amendments that we tabled today. We cannot meet them 100 per cent., however, because we believe that the council should have this last-ditch, last resort power. In that regard, there is a clear difference between Government and Opposition members of the Committee. If we accept the amendment tabled by the hon. Member for North-East Hertfordshire, there is a danger that we will create a toothless tiger, and there is no point in wasting the time of this place by doing that.

Mr. John Baron (Billericay): Does the Minister accept the sweeping generalisation that only Parliament should be able to direct regulators on fundamental matters? We seem to be creating a slight conflict of interest. It is accepted that we must give the council sufficient powers to carry out its functions, but there is a fine line to be drawn. At the end of the day, this is a fundamental issue and Parliament should be the only body to direct regulators in the performance of their functions.

Mr. Hutton: That is a very interesting argument, but it is not the present position. At the moment, Parliament cannot act in that way and the matter is essentially one for the Privy Council, so the hon. Gentleman's proposal would require a substantial change in current arrangements for approving rules. However, there is certainly an argument to be made about the role of Parliament, and I shall return to it in a moment, as I am pretty much on the hon. Gentleman's side. That is why the Bill has made it clear that the council will report to Parliament.

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In moving his amendment, the hon. Member for North-East Hertfordshire expressed concern about the role of Parliament where the council and the regulatory body are in conflict over rules and the council feels the need to exercise its powers. I hope that that situation never arises and it will be a huge disappointment if it ever does, but there would be every opportunity for Parliament to express its opinion. It could do so in a number of ways, including through the Select Committee on Health. Of course, the council itself will report to Parliament. If such a terrible situation arose, I would be gobsmacked if it were not the subject of detailed commentary in the council's report to both Houses of Parliament.

It is perfectly reasonable for us to have this argument, but the alternative prescription is not adequate. It would leave the status of the report in no man's land—in a hinterland in which there is no absolute clarity about the role of Parliament and what would happen in such cases.

There is another important point that we must not lose sight of. Even if the power under clause 25(2) were exercised and the council recommended a change in the rules with which the regulatory body must comply, such a change would have to be approved by the Privy Council. The council itself will not write the rules of the regulatory body. The regulatory body must give effect to the directions that it receives and the Privy Council must ultimately decide whether to approve rule changes. There has been some misunderstanding of that.

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