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Mr. Paul Burstow (Sutton and Cheam) (LD): I beg to move amendment No. 1, in page 5, line 6, at end insert—

'(2A)   To facilitate co-operation the Agency shall consult with other bodies and publish protocols for co-operation.'.

I want to speak briefly to this amendment, which concerns an issue that we explored in some detail in Committee. The amendment relates to clause 5, which deals with co-operation between organisations, including the Health Protection Agency, not only to enable that agency to deliver its functions but, in other circumstances, to enable other bodies to discharge some of theirs. There is a mutual duty to co-operate.

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One of my concerns, which arose partly from a speech made on Second Reading by the hon. Member for North-West Leicestershire (David Taylor), and also from other hon. Members' speeches, is that the clause's drafting leaves open quite a few questions about how the duty to co-operate will be realised in practice. I tabled an amendment in Committee that was intended to include in the Bill permission for the HPA to draw up and consult on protocols on discharging the duty of co-operation with other agencies. In exchanges in Committee, the Minister resisted the amendment, because, in her words, it was both burdensome and prescriptive. It was far from my intention to create a burdensome and prescriptive measure. I sought assurance after the Committee consideration of the amendment about whether the wording could be construed as prescriptive or whether it could be more appropriately construed as permissive. I am advised—and have therefore re-tabled it for consideration today—that its character is more permissive than prescriptive.

The intention of the amendment is simply to introduce a mechanism into the Bill that provides for the Health Protection Agency, when it must work with other bodies in order to discharge its functions, to consult on and draw up protocols. It is permissive, because reference is made to the body having the power to do that. I commend the amendment to the scrutiny of hon. Members.

In Committee, we had a useful contribution from the hon. Member for Newark (Patrick Mercer), who raised a number of concerns about the need for such protocols, not least to deal with arrangements between the Health Protection Agency and other bodies, such as local authorities, in the event of radiological, biological or chemical attacks. On Second Reading, the hon. Member for North-West Leicestershire expressed concern about the lack of co-operation at times between the Environment Agency and other bodies, particularly the Health Protection Agency.

In Committee, I raised the issue of who took responsibility, and where the buck stopped, in the handling of outbreaks—particularly outbreaks that might involve zoonosis, or potential transfer from animals to humans. The Minister asserted several times that a protocol specifying who might, in certain circumstances, make the decision would be inappropriate and that it would be appropriate for that to be dealt with solely through co-operation. That, surely, is a recipe for chaos. Protocols can clarify such questions as whether a Minister or an agency will make the decision.

The amendment is intended to improve the Bill and to provide, on a permissive rather than a prescriptive basis, a mechanism enabling the HPA, with partner agencies, to draw up suitable fit-for-purpose protocols at the least possible cost to the taxpayer and with the greatest possible benefit in terms of effective service with co-operation being the key.

Dr. Andrew Murrison (Westbury) (Con): I support this sensible amendment. My hon. Friend the Member for Newark (Patrick Mercer) went to some trouble in Committee to outline his views on co-operation, especially in emergencies. The hon. Member for Sutton and Cheam (Mr. Burstow) talked about that as well.
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The amendment sets out, in a reasonably prescriptive way, the arrangements that might exist between the HPA and other bodies. As the Minister will recall, I pointed out in Committee that those bodies were not specified in the Bill. She gave me a reasonable explanation, but it is a burden for the bodies that are expected to co-operate with the agency not to know who they are. The Minister and I discussed that in some detail.

The amendment will probably help by describing the precise nature of the co-operation. That will be particularly beneficial when there is not enough time to make detailed decisions on any form of working arrangement. The work is being done before the emergency arises. I am sure that, if my hon. Friend the Member for Newark were present, he would strongly support a measure that would deal with some of the anxieties he expressed at length in Committee.

Miss Melanie Johnson: As I explained in Committee, our 2002 consultation paper noted that the agency would need to co-operate with other bodies, and the responses supported that proposal. That is why clause 4 provides for the agency and other bodies exercising related functions to have a mutual duty of co-operation.

Although the thinking behind the amendment is clear, it is not clear how it would work in practice. Let me explain a few things. First, the principle of imposing a duty of co-operation is not new. The HPA already has a duty to co-operate with other NHS bodies and local authorities. Section 26 of the Health Act 1999 imposes a duty on NHS bodies to co-operate with each other and section 22 of the National Health Service Act 1977 creates a duty of co-operation between NHS bodies and local authorities. Secondly, "co-operation" means just that: it implies not wholesale rewriting of each other's priorities, but sensible working together to ensure that the public are served to best effect. Thirdly, it is normal and sensible to leave the details of how co-operation will work in practice to the parties concerned rather than prescribing them in primary legislation. Different levels and forms of working together will be appropriate in different circumstances and with different bodies.

6.15 pm

I do not believe that anything will be gained by our writing into the Bill a requirement for the agency to publish protocols on co-operation with other bodies. Such a requirement has not been found necessary in other contexts. There is, for example, no requirement in legislation for NHS bodies and local authorities to produce protocols explaining how they will co-operate. In practice, the agency and some of the bodies with which it will co-operate might well want to produce protocols or other forms of agreement if they were regularly to involve each other in certain procedures, but there might be cases in which protocols would not be appropriate and would not be required. Judgments about operational matters are best left to the agency and its partners rather than being prescribed in legislation.

It is difficult to assess whether the amendment is meaningful. I realise that the hon. Member for Sutton and Cheam (Mr. Burstow) has tried to resist the
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temptation to prescribe in detail what co-operation should mean, but my first objection is that he is doing that. He has suggested a general requirement to produce and publish protocols on co-operation. He explained in Committee that the requirement

The hon. Gentleman cannot have it both ways. His amendment is prescriptive: it dictates to the agency and its partners that they should have protocols. If, as he has argued, that is a natural part of what we would expect the HPA to undertake, there is no need to dictate to it and its partners that they should have such protocols.

If the amendment is not too prescriptive—although it certainly could be—it can equally be interpreted as being meaningless. In some circumstances in which it is reasonable in the circumstances, the agency could discharge a proposed duty simply by producing a protocol saying that there shall be co-operation in appropriate circumstances and by appropriate means. Nothing would be gained by such a meaningless requirement. As I said in Committee, a legal requirement to publish protocols would also ignore the fact that there could be good reasons against publication in some circumstances. For example, there might well be a need for the agency to co-operate with the security services, but it would not necessarily be desirable for the details of that co-operation to be put in the public domain.

The amendment is generally far too prescriptive. It undermines the hon. Gentleman's recognition in Committee that we do not wish to prescribe such matters. The hon. Member for Westbury (Dr. Murrison) described it as "reasonably prescriptive". I am not sure what that means, but I think that it is far too prescriptive, because it writes into primary legislation a requirement to publish protocols in co-operation with other bodies, which we do not need to do. The arrangements are already in place. I have already specified the precedents that show that this is unnecessary. We should give the bodies a certain amount of flexibility, because in certain circumstances prescription would be inappropriate.

I hope that the House will reject the amendment, because I do not think it would necessarily have the effect that the hon. Gentleman wants. Good co-operation and good work on protocols will continue. That, not prescription in primary legislation, is what will deliver.

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