NHS Reform and Health Care Professions Bill

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Mr. Heald: To what extent does the Privy Council have discretion? If the recommendation is made, surely that is the end of it.

Mr. Hutton: No, I think not. The Privy Council has absolute discretion to accept, or not accept, rule changes. It is not as cut and dried as some of the hon. Gentleman's arguments have suggested.

Mr. Heald: Will the Minister give way again?

Mr. Hutton: I will in a second, but it is important to confirm that the UK council will not be writing the rules of the regulatory bodies.

Mr. Heald: Can the Minister give an example of a similar situation where the Privy Council has overturned a recommendation?

Mr. Hutton: There has never been a scenario such as that which the hon. Gentleman is countenancing. He is not a member of the Privy Council so he has not had the experience of seeing what happens. What happens is truly weird—I will not go into that because I would be out of order.

The Privy Council acts, and reaches its decisions, on the advice of Ministers. It is possible that a dispute could be resolved in that way. There may be arguments and different views, but the Privy Council acts on the advice of Ministers so it would be a mistake to assume that everything will be decided in accordance with the work that the hon. Gentleman described—it may not

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be so decided. We are now talking in the language of hypotheticals. However, the constitutional position is clear: the Privy Council will decide whether to approve the recommendation of a rule change that arrives from a regulatory body, even when it is acting under a direction received from the UK council.

That may have been a rather tortuous constitutional seminar, but it describes the position. It is a mistake to construe 25(2) as giving a direct power to the council to change the rules of a regulatory body. We have come to the view that the council should have the statutory power to require a change because we want the council to be an effective body, not an overbearing one. Professor Kennedy had no doubt that the council should have powers to ensure that it was able to carry out its functions effectively. He says:

    ''We believe that the Council should have statutory powers to require the various bodies to act in the interests of patients and conform to principles of good regulation.''

I well understand the argument of the hon. Member for Oxford, West and Abingdon and others that simply because Professor Kennedy has expressed a view does not mean that we must accept it—of course we should not. However, he has given us a convincing argument. I say that not to give the UK council the powers of the Nazi stormtroopers, but to reserve a baseline power so that public interest is served. The amendment tabled by the hon. Member for North-East Hertfordshire would not give us the opportunity to ensure that change was effected.

In the Government amendments, I have tried to make it clear that the Secretary of State will be able to make regulations about the procedure to be followed when the council directs the regulatory body to make a rule change. Government amendment No. 248 sets out what the regulations must cover and specifies that the process must include a period of consultation. According to any principle of fair play and even-handedness, it would be inconceivable not to have consultation preceding a council's final decision on whether it wanted to exercise its powers.

The hon. Member for Oxford, West and Abingdon made the good debating point that the amendment was the only Government amendment that he could remember that converted the word ''may'' to ''shall''; that is usually the prerogative of those in opposition, but I am happy to establish a precedent for regulatory-making powers. We believe that it is important to send a clear and obvious signal to the regulatory bodies, and the wider public, that we demand that the council acts in a fair and even-handed way. The amendment will ensure that that intention, which has always underpinned our thinking on the issue, is included in the Bill. We have decided to table it as a result of conversation with the regulatory bodies. I know that they would have liked us to go further, but we were unable to do so because it is important that the council has the reserve power as a last resort.

I may not have persuaded Opposition Members that it is necessary for the council to have the power, but I hope, at least, that I have reassured them that we considered the arguments carefully. We are amending the Bill to try to clarify the procedures that we expect to be followed and we have made it abundantly

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clear--I have tried hard to do so this afternoon--that the power in clause 25(2) is a reserve power to be used only when there is no alternative.

5.45 pm

Dr. Harris: I have plenty to say in response to the Minister. However, he said that he might mention a case or cite an example and I thought that he was coming to the end of his comments without doing so. Examples would be useful to focus our minds on the issues.

Mr. Hutton: There is an example of a regulatory body taking a decision about a medical practitioner who was distributing paedophile information. It decided not to suspend him from the register or to discipline him because he was doing that in his own time. That is the type of decision that justifies our proposal. I accept that clause 27 provides appeal rights, but there may be cases that give rise to concern about the rules of a regulatory body and would require and perhaps justify the exercise of such a power.

I can tell from the expressions on Opposition Members' faces that my argument might not have been 100 per cent. successful, but we have thought carefully about the right way of taking the legislation forward and I hope that the record of our proceedings today will show the Government's intentions on clause 25(2) and our strong desire that the process should be conciliation, discussion and consultation in the first instance. That process will be reinforced by the amendments that we tabled today. In the last resort, the Committee and the House must decide whether the UK council should have the power to require a rule change to be submitted to the Privy Council.

Dr. Murrison: I should like to clarify one issue. The Minister cited a specific case, which sounded awful. Does he believe that the regulatory bodies might not give the right steer in some cases and that the council might be able to steer them in a more appropriate direction?

I want to be clear about an important matter that has not yet been aired. The anecdotal experience of the General Medical Council, for example, is that the professionals on the council tend to be more censorious than the lay people serving alongside them. The Minister should not presume that the council will necessarily take a more censorious view than the regulatory bodies. That is important and he may wish to note the point.

Mr. Hutton: I agree with the hon. Gentleman. I am not making any assumptions about how the council will approach the task. I am trying to place on the record the Government's intention in making the proposal: to give the council, as a last resort, the power to require a rule change by the regulatory body, subject to the final approval of the Privy Council. I am not making a judgment about the attitude of mind that lay or professional members will bring to bear. My strong hope is that there will be a clear consensus that that is the right thing to do before the council goes down that path. However, ultimately, they are matters for the

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council. If we were to deny the council even the opportunity to take that road if it thought that desirable to protect the public, we would disarm the council and remove a last-ditch power without which there would be a substantial risk that it would not achieve the ambitious objectives that we have set for it.

Dr. Harris: I am not sure that I remember the case cited by the Minister, but let us suppose that the council was concerned about a similar case in which a regulatory body during its preliminary proceedings decided not to take the case forward. I understand that preliminary proceedings are not necessarily conducted in public because there may be unfounded allegations and people must be protected from libel. Does the Minister believe that as the council has a duty to protect the public and seeing this power, it might decide that it wants a regulatory body to take forward some of the cases that it had decided not to take forward? That would usurp the role of the regulatory bodies.

Mr. Hutton: No; I do not. Nothing in the Bill would give the council that opportunity and it is certainly not what we expect it to do. I made it clear earlier that I do not expect the UK council to interfere in every fitness-to-practise decision taken by the regulatory bodies. The proposal is not designed for that and we do not envisage the council doing that. It might want to exercise its powers under clause 25(2), but, with respect to the hon. Gentleman, that is a dead end and it is not worth spending the Committee's time discussing it because I will not take the decisions. I have absolutely no intention of substituting my judgment for the eventual decision-making processes of the UK council. It is fruitless to hypothesise on that today.

Mr. Baron: I take the Minister's point, but is he not worried that when the UK council can direct regulators on all matters pertaining to the Privy Council, that brings into doubt the independence of the regulatory bodies—something that the Kennedy report emphasised? It is a question of balance, but when, as a last resort, the UK council can direct the regulatory bodies, that must bring their independence into doubt. Does the Minister agree?

Mr. Hutton: I understood that the hon. Gentleman was arguing for Parliament to be able to do that. I am not entirely sure that there is a distinction between who does it in terms of the independence of the regulatory bodies. Whether Parliament or the UK council has the reserve power, I do not believe that it fundamentally affects the independence of the regulatory bodies. We are determined to ensure that they remain professionally led, self-regulatory bodies. The fundamental question for the hon. Gentleman and, I suspect, his hon. Friends, is whether there should be someone with a reserve power to direct such a rule change, if it is clearly necessary and desirable to do so to protect the public. Our view is that accountability should properly be with the UK council, which in turn reports to Parliament. I accept that there is a wider debate about the role of Parliament and I am not precluding that; it is appropriate. However, the

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bottom line on which he and I hold different views is whether such a power should exist. I say yes, but I am not sure whether he also says yes. I say that the UK council should have that power, but I think that he says Parliament. Neither my argument nor his fundamentally detracts from the need to preserve independence.

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