Clause
39
Power
to modify Chapter in relation to newly regulated
activities
Question
proposed, That the clause stand part of the
Bill.
1.15
pm
Mr.
O'Brien:
As I am sure the Committee will have noticed,
there was an unselected amendment tabled to the clause. In fact the
point relating to that can be more sensibly dealt with in a stand part
debate.
The
memorandum on delegated legislation makes the helpful note that,
because the power in the clause will enable the Secretary of State to
modify the chapter by statutory instrument in its application to newly
regulated activities of a prescribed description, any regulations will
be subject to the affirmative resolution. The memorandum notes
that
“this is not
dissimilar to a Henry VIII
power”.
Speaking of Henry
VIII, I assure the Committee that, as he was wont to say to his wives,
“I shan’t be keeping you
long.”
Angela
Browning:
The old ones are the best
ones.
Mr.
O'Brien:
I have known the saying for years. I have heard
it many times, but I have never had the opportunity to use it. I thank
the Committee for its
indulgence.
To my
mind, the provision is a Henry VIII power, which is when primary
legislation is amended by statutory instrument. I hope that the
Minister can help me, because the provision makes all of part 2 subject
to a Henry VIII measure. We are concerning ourselves with primary
legislation, so that means that it can all be amended by statutory
instrument. My question might show my ignorance of procedure, but does
the provision include the potential for repeal?
I am sure that the Minister is
aware that Lord Justice Law suggested in 2002 in the Metric Martyrs
case that it was unfair to attribute such powers to his late Majesty
who reigned 100 years before the civil war and longer, yet before the
establishment of parliamentary legislative supremacy. In today’s
world, it would be interesting to know the thoughts of the Lords
Constitution Committee on the clause. I do not know whether there has
been an opportunity for informal or even formal consultation within the
Government.
It would
be helpful when considering the clause if the Minister could tell the
Committee what newly
regulated activities he envisages and what changes they might bring to
the legislation, accepting that the clause is designed to catch the
unforeseen. As an addendum, can he tell the Committee about the
provenance of the list under subsection (3)? Given our discussions and
those of the Liberal Democrats about not wanting to include in the past
certain lists to give priority of identification, such a proposal
suddenly seems to veer towards the Minister’s prescriptiveness.
I question that as a matter of both consistency and precedent. Will he
explain the provenance of the list as it might help us to understand
why he has chosen that list, but not the list that we
proposed?
Mr.
Bradshaw:
Clause 39, as the hon. Gentleman has
acknowledged, is intended to provide future flexibility so that the
system can adapt to changes in the way in which health and social care
are delivered. The delivery is becoming more integrated. It is
responding to people’s needs, and it is changing as a result of
innovation. It is possible that initially primary care will not come
within its remit but, as more elective surgery is being delivered in
the primary care setting, that change would require the flexibility
that we are
discussing.
It
is also important to recognise that the power to modify the Bill after
it is enacted does not apply to the registration of NHS bodies and
other providers registered with the new commission from the outset as
listed under clause 39(3). We have already made it clear that NHS
hospital services would be regulated. Respondents to our consultation
put forward convincing arguments for the inclusion of, for example, NHS
primary care providers within the regulatory framework. The reason
behind the provision is to provide the flexibility that we discussed
the day before yesterday in relation to some cosmetic procedures. I do
not want to rein in the future flexibility that might be
needed.
Anne
Milton (Guildford) (Con): I appreciate that health care is
changing rapidly and that we need flexibility to reflect the results of
the changes. I received information from the Patients Association that
the chief medical officer has commissioned a report from Joint
Commission International, which will be looking at how we accredit and
regulate health care organisations. It has suggested that such matters
are changing even as the ink is not dry on the
Bill.
Mr.
Bradshaw:
Which is exactly why we need the flexibility
that I have just described.
Mr.
O'Brien:
As the Minister was going through it, I was
hoping for some reassurance about how we had arrived at the list in
subsection (3). It occurs to me that something that we have already
touched on in earlier Committee proceedings is not included in the
list. For instance, for a housing association that produces many homes
with Telecare that are not known as care homes, but are known as
normal, independent homes that happen to have a lot of Telecare
facilities, it would be quite difficult to make that fit into that
prescriptive list. I think that it is a fair question, and I am hoping
to get an answer.
Mr.
Bradshaw:
I am advised that subsection (3) is about
excluding those registered at the
outset.
Question
put and agreed
to.
Clause 39
ordered to stand part of the
Bill.
Clause 40
ordered to stand part of the
Bill.
Clause
41
Standards
set by Secretary of
State
Sandra
Gidley:
I beg to move amendment No. 197, in
clause 41, page 20, line 6, leave
out ‘NHS’ and insert ‘health and
social’.
This
is a simple amendment. As the clause stands, the Secretary of State is
mentioned only in the context of the NHS. We received a lot of oral and
written evidence about concerns that the social care function would be
lost. It is quite pertinent here to reflect on the words of Sir Ian
Kennedy during our first sitting. He
said:
“it is my position
that ultimately, bringing together health care and social care
regulations is desirable because the citizenry do not know, and care
less, under what system they are being looked after—they want it
to be seamlessly well-organised.”——[Official
Report, Health and Social Care Public Bill Committee, 8 January
2008; c. 6.]
We are all aware of
areas where the system perhaps comes apart at the seams, for want of a
better phrase. I use as an example the case of continuing care. I
suspect that every hon. Member in this Room has played a part in trying
to secure continuing care funding for a patient. Often, they have
Alzheimer’s and have significant health needs, but ultimately, a
decision is made by a person or persons unknown that their need is not
a health need, but a social care need, so they do not receive NHS
funding.
In most
cases, it is difficult to see where the division lies. I have had two
very similar cases; one could hardly see a difference in the
capabilities and illness levels of my two constituents. One received
the funding, but the other did not. It was down to the different
assessments on the day. Although the Government have made some attempts
to improve that, I still think that there is a problem. In the case
where the continuing funding was made available, the care was given in
a nursing home, which is not part of the NHS. Although the constituent
was NHS funded and she was receiving some NHS care from nurses, a lot
of the care was also being received from other workers in the home. It
seems rather perverse that the Secretary of State could make decisions
on part of that care, but not that other part. We ought to be aiming
for the seamless care that was described by Sir Ian Kennedy. Others
echoed his sentiments: Denise Platt said that she wanted a strong
social care focus to be retained. The amendment serves two purposes: to
try to have that seamless aspect, and to make it absolutely clear that
the focus on social care is retained in the
Bill.
Mr.
O'Brien:
It seems a sensible proposal. It is difficult to
understand why the Government are confining themselves to quality
standards in NHS care and not beyond. Under the current system in which
Ministers have day-to-day control of the NHS, one would have thought
they would be doing this anyway
and that the role would be distinct from that of the regulator. We must
question what the underlying reason is for the power here. That is the
argument.
Mr.
Bradshaw:
First, I agree that improving quality in adult
social care is every bit as important as improving it in the NHS, but
there are other mechanisms and methods already in place to do that.
Local authorities have their own local and national reporting and
accountability arrangements, and the Minister for Communities and Local
Government has powers to issue standards under the Local Government Act
2003. The Government are committed to a single performance framework
for local authorities across all their functions, rather than having a
duplication, which we think would be the impact of the
amendment.
On the issue
of independent health care providers, where a PCT uses private sector
providers to provide NHS health care, of course the standards set under
the clause will apply to those providers. As we have previously
discussed, the registration requirements will ensure that all private
and independent sector providers provide services at a particular
level. The hon. Lady’s amendment asks for the Government to
intervene as a performance manager in private transactions between
entirely fee-paying clients or patients. In terms of pushing up
standards, we do not believe that it is the Government’s role to
intervene on matters of purely private health care. We believe that
improvements in the commercial sector should be driven by the suppliers
themselves as they strive to improve and attract more fee-paying
patients. In a way it goes back to the argument we had two days ago
about cosmetics—we must decide on the proper boundary of the
role of the state.
Sandra
Gidley:
I find the Minister’s arguments hard to
follow. In the same nursing home there could be residents who are
purely NHS funded, those who receive funding via the local council and
some who are using their own funds for the time being, as they have the
money available. Is the Minister saying that we should apply standards
to one set and ignore the others? It seems to be a mixed
message.
Mr.
Bradshaw:
My point is that the hon. Lady asks us to push
the principle of performance management beyond what is generally
considered to be the role of performance management in the private
sector vis-Ã -vis the funded sector. However, in the situations
that she has described, those institutions will fall under the
registration requirement that will set minimum standards. She asks us
to performance manage the care delivered under a purely private
contractual arrangement between provider and client, and we do not feel
that that would be a desirable thing to do.
Sandra
Gidley:
I am not wholly convinced by the Minister’s
arguments. There may be a better way of phrasing the measure so that it
encompasses what we wish to achieve. We may wish to revisit the matter,
but for now, I beg to ask leave to withdraw the amendment.
Amendment,
by leave,
withdrawn.
Mr.
O'Brien:
I beg to move amendment No. 29, in
clause 41, page 20, line 6, at
end insert—
‘(1A) statements
of standards must be established within the remit of the NHS Core
Principles.’.
The amendment seeks, insofar as
we are able within the scope of the Bill, to enshrine the NHS core
principles in the legislation. The Committee will be aware that we in
the Conservative party are fully committed to that, as stated in our
published NHS (Autonomy and Accountability) Bill. In support of that,
my right hon. Friend the Leader of the Opposition has consistently
confirmed our party’s commitment to the NHS, that it should be
and will continue to be under any incoming Conservative Government a
service free at the point of need, with access based on need and the
ability to pay. I hope that the Government would seek to support that
core
principle.
1.30
pm
One has to note
that in a consultation undertaken by the now Chief Secretary to the
Treasury in December 2006 on the core principles of the
NHS—principles that we have committed to enshrining in
legislation—the Government admitted the principle
that
“Public funds for
healthcare will be devoted solely to NHS
patients.”
It was a
surprising admission at the time, and even if the Minister will not
accept the amendment, I hope that he will tell us whether he still
wishes to get rid of this particular central pillar of the NHS. Members
of the Committee who sit on the Government Back Benches might want to
question whether they support the Minister in apparently seeking to
open the door to top-ups—[Interruption
.
]
I do bless him for his continual sneezing, but I hasten to say that
I have no clerical rights to do so.
In choosing
whether to support the amendment, the Minister should be aware that, as
we identified, he is choosing between his Secretary of State and the
Prime Minister. We should compare the Prime Minister’s new year
message to the NHS, which we have already quoted at least once in this
Committee, with the report eight days later in the
“Society” section of The Guardian that the
Secretary of State did not want a constitution to give lots of work to
lawyers by “enshrining”, as he put it, the constitution
in legislation.
This
important amendment provides an opportunity, which I hope will be
consensual, to enshrine this core principle. We have offered this and
many other opportunities to do what I should have thought would be
incontestable among us.
Mr.
Bradshaw:
The reason why we have trouble with the
amendment is that we do not think it sensible or desirable to restrict
the scope of the standards to the NHS core principles. Those core
principles have existed since 2000, so we do not think that there is a
need to legislate to introduce them. We have strengthened the force of
the principles by incorporating them into the standard NHS contracts
between primary care trusts and secondary care service providers, which
were introduced in 2007. Those contracts required all sides to have
regard to the NHS principles, and that is a more appropriate way of
confirming the commitment of NHS bodies to the principles than
enshrining them
in legislation, as they are by definition general principles of
behaviour that can be applied in practice in a variety of
ways.
Because we want
to put more power in the hands of front-line staff to get on with the
job and let local circumstances help them with the application of those
values, we believe that they will apply the core principles sensibly
and flexibly. It would not be sensible for us to predict what effect
the legal application would have on local practice, which is why we are
inclined to resist the amendment.
Mr.
O'Brien:
The Minister just said that he does not think
that the core principles should be enshrined in legislation. It is
helpful to repeat what the Prime Minister said in his widely reported
personal new year message to the NHS on 1 January, which can be read by
all at www.dh.gov.uk—I even have details of how to find the
particular sentence. He said
that
“we will also
examine how all these changes can be enshrined in the new constitution
of the NHS setting out for the first time the rights and
responsibilities associated with an entitlement to NHS
care.”
If that is not to
enshrine the core principles in legislation, one has to ask, what is? I
am conscious that I am not going to make progress with the
Minister—he has obviously decided what his position
is.
I think that
everybody is clear about our position on this: that it is appropriate
to seek to enshrine the NHS core principles in legislation. Most
unusually, we shall find an opportunity this Session for our NHS
(Autonomy and Accountability) Bill to be considered by the House. That
would be a better, more consistent and principled vehicle to use,
rather than pursuing an ad hoc approach in Committee with the Minister.
I hope that the Government will support our Bill, because otherwise, we
shall be the only ones offering the enshrining of the core principles
in legislation, notwithstanding the Prime Minister’s
well-reported remarks of 1 January. As we shall have plenty of chances
to revisit the issue, I am happy to beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Clause
41 ordered to stand part of the
Bill.
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