Health and Social Care Bill

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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.
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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