Clause
90
General
interpretation of Part
1
Mr.
O'Brien:
I beg to move amendment No. 47, in
clause 90, page 45, line 8, after
‘regulations’, insert
‘approved by a resolution of each
House of
Parliament’.
The
Chairman:
With this it will be convenient to discuss
amendment No. 66, in
clause 150, page 101, line 30, at
end insert—
‘(aa)
regulations under section
6(2),
(ab) regulations under
section 9
(ac) regulations
under section 12,
(ad)
regulations under section
13,
(ae) regulations under
section 16,
(af) regulations
under section 31,
(ag)
regulations under section
34,
(ah) regulations under
section 36,
(ai) regulations
under section 38,
(aj)
regulations under section
42(9),
(ak) regulations under
section 44,
(al) regulations
under section 45,
(am)
regulations under section
50,
(an) regulations under
section 61,
(ao) regulations
under section 79,
(ap)
regulations under section
81,
(aq) regulations under
section 110,
(ar) regulations
under section 111,
(as)
regulations under section
112,
(at) regulations under
section 116,
(au) regulations
under section 119,
(av)
regulations under section
121,
(aw) regulations under
section 122,
(ax) regulations
under section 123,
(ay)
regulations under section
124,
(az) regulations under
section 125,
(aaa) regulations
under section 126,
(aab)
regulations under section
132,
(aac) regulations under
section 133,
(aad) regulations
under section 134,
(aae)
regulations under section
136,
(aaf) regulations under
section 138,
(aag) regulations
under section 140,
(aah)
regulations under section
141,
(aai) regulations under
section 142,
(aaj) regulations
under section 143,
(aak)
regulations under section
147,
(aal) regulations under
section 160,’.
Mr.
O'Brien:
I express my gratitude to Committee members
because we are staying slightly later than intended. However, I hope
that it is accepted that we have made pretty good cantering progress.
If we can get through this clause we will be able to conclude part 1,
which is a sensible
aim.
I hope to
reassure Committee members because amendment No. 66, which for their
convenience appears rather late on in the whites—the amendment
paper—is extraordinarily long. However, I would not want anyone
to take fright, because the principle is clear and simple, and in our
drafting of that amendment we have attempted to ensure that we are
consistent.
Amendment
No. 47 makes every resolution in part 1 affirmative. Amendment No. 66
would do the same for the whole of the Bill by amending clause 150. If,
during our deliberations, Committee members notice any imperfections in
that drafting, I am sure that if we establish the principle the detail
can be tidied up and sorted out. However, we should seek to establish
the principle of what we are trying to
achieve.
In sum, a
quarter of the clauses in the Bill are dependent on regulations, which
is a very high proportion. First, we have to set that in the context of
how that fits with the Prime Minister’s intention to strengthen
Parliament, given that regulations inevitably tend to receive rather
less detailed scrutiny than we can give to primary legislation. The
linking aspects of the Bill make the amendments and the clause
particularly relevant, because the effect of, for example, clause 39 is
to make every clause in chapter 2 a Henry VIII clause—primary
legislation that can be amended by regulation. By every test, it is a
genuinely colossal power to put in the hands of the Secretary of State.
We have had several discussions about the impact of regulations on the
functions, which, if we remember, equates to the duties, as opposed to
the guidance and the code, of the CQC. The ability to approve
legislation by the affirmative procedure becomes all the more apt and
relevant—not least to our accountability as
Members.
Clause 4 is one of the few
clauses that are already subject to the affirmative procedure, but I
hope that on Report the Minister does not have his own clause IV moment
and decide to change it, because that would be disastrous. It is
important therefore to recognise that, through clause 4, the Bill
contains a precedent for the affirmative procedure. The amendment is
important because it is procedural, and therefore always that much more
difficult to get one’s arms around. It is also important because
we are trying to make the attitude of the Bill consistent. It helps
that clause 4 has set that precedent.
4.45
pm
We have also
had a long discussion on the regulations and codes of practice on
health care associated infections. I hope that those discussions will
be reflected in the legislation. The ability to do that is very much
assisted by adopting the scheme set out in these lengthy but
straightforward amendments.
Amendment No. 66 stretches
beyond part 1. I forewarn the Minister, in case he is not aware of it,
that the Conservatives have been seeking to ensure that we
put true independence in place within both the bodies being created and
the regulation of health and social care professionals. I have grown
used to the idea that I may live in fear and trepidation that he will,
yet again, not give me the wonderful, unexpected joy of accepting my
amendment, but I hope that he does. If he does not accept the merit of
what I have just put forward, I need to reserve the right to attempt to
bring back specific regulatory powers and provisions in the Bill,
although it might have to be through separate amendments at a later
stage as it passes through our House and another place. I commend the
amendments to the
Committee.
Mr.
Bradshaw:
As the hon. Gentleman has said, clause 150 sets
out the arrangements for parliamentary control of the delegated powers
in the Bill and defines which powers will be subject to the affirmative
resolution procedure. They are set out in the clause, so I shall not
list them here. His amendment No. 47 would make all the delegated
powers in part 1 of the Bill, on the Care Quality Commission,
subject to the affirmative resolution procedure. Amendment No. 66 would
increase the number of delegated powers subject to the affirmative
procedure by 38. That is an unacceptably high increase and would place
an unacceptable burden on parliamentary time.
We are confident that both
clauses represent a sensible balance between the negative and
affirmative resolution procedures. They reflect the current situation.
We do not think that it would be sensible, for example, to move
regulation-making powers that the Healthcare Commission currently has
under the negative procedure to the affirmative, and we do not
think that it would be sensible or sustainable to make every delegated
power granted by Parliament subject to the affirmative
procedure. Given the limits of parliamentary time, it is necessary to
make some judgment as to which powers in the Bill are so crucial that
they warrant a higher level of scrutiny. That is what we are trying to
do.
Mr.
O'Brien:
The Minister’s answer has demonstrated
clearly that we are dealing with a matter of judgment. It is not
necessarily based on principled positions but more to do with the
capacity of the House as well as a normative approach. I am absolutely
sure that the reservation that I expressed earlier may be relevant, and
I shall continue to study the matter with some care, although it takes
an inordinate amount of work to do so. I suspect that we shall reserve
our position and mention later specific points on which we want the
affirmative resolution to apply, in addition to those for which it is
already provided in the Bill. Unless there is recognition of the need
for that, we are not really underpinning the Committee’s
intention to ensure that there is genuine scrutiny of the independent
body. Instead, there will be scrutiny that is over-burdened by being
refracted through the Minister and his Department. We shall return to
the point in some form or another at a later stage. I beg to ask leave
to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Clause
90 ordered to stand part of the
Bill.
Further
consideration adjourned.—[Steve
McCabe.]
Adjourned
accordingly at
eleven
minutes to Five o’clock till
Tuesday 22 January at half-past Ten
o’clock.
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