Health and Social Care Bill

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Clause 106

Constitution etc. of Council
Kelvin Hopkins: I beg to move amendment No. 250, in clause 106, page 52, line 7, leave out ‘one executive member’ and insert ‘two non-executive members’.
The Chairman: With this it will be convenient to discuss the following amendments: No. 52, in clause 106, page 52, line 13, leave out ‘three non-executive members’ and insert ‘one non-executive member’.
No. 251, in clause 106, page 52, line 13, leave out ‘three’ and insert ‘seven’.
No. 53, in clause 106, page 52, line 14, after ‘State’, insert—
‘( ) two non-executive members appointed by the Appointments Commission.’.
No. 163, in clause 106, page 52, line 14, after ‘State’ insert—
‘( ) one non-executive representative of the regulatory bodies.’.
No. 252, in clause 106, page 52, line 15, leave out ‘two executive members’ and insert ‘one executive member’.
Eagled-eyed Members will have noticed that amendment No. 365 refers to leaving out “one executive member”, when it should say, “one non-executive member”. I mention that to ensure that we are all singing from the same hymn sheet.
Kelvin Hopkins: The amendments deal with the membership and composition of the CHRE, and would, among other things, increase the number of Scottish members from one to two and the number of English members from three to seven, and cut the number of CHRE executive members from two to one. If the overriding objective is a UK-wide approach to professional health care regulation, we need to acknowledge the need to continue and strengthen the relationship with Scotland, something that I suggest is politically important at the moment—I do not think that any Scottish Members are present today, but I hope that if there were they would support what I am saying—by having a more Scotland-specific view. Other UK-wide bodies, such as the Food Standards Agency, have two non-executives from Scotland, so why not the CHRE?
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There is increasing fragmentation of health care across England, and CHRE needs to be able to reflect that in its composition, diversity and size. The extra English members will also provide reassurance that the CHRE council has the capacity to reflect a range of experience and expertise to span existing and additional functions indicated in the Bill. The CHRE’s senior executives already prepare council papers, attend, contribute and sit alongside council members and have considerable opportunity to influence CHRE decision making before, during and after council meetings. It would be more appropriate, and in keeping with the spirit of the White Paper, to focus on strengthening the CHRE’s lay membership. Our amendments are designed to achieve that through increasing English and Scottish membership, and therefore the council’s capacity to be, in the words of the White Paper, a truly
“authoritative independent voice for patients on the regulation of professionals, providing expert advice on policy”.
I think that I have made the case, and hope that my hon. Friend the Minister will be sympathetic to it.
Mr. O'Brien: I think that what the hon. Member for Luton, North is trying to achieve is not dissimilar to what we want to achieve. The power of appointment is always a difficult area, because at this stage it can look rather benign, but it can in practice prove very influential and representative.
Our amendment. No. 52 would limit the Secretary of State to appointing one non-executive member in line with one from Scotland and one from Wales. Amendment No. 53 is consequent on that, giving the Appointments Commission the power to appoint the other two. The question that the provisions pose to a Government who purport to believe in devolution is why the devolved Administrations are in this context subordinate to the Secretary of State. Our amendments Nos. 52 and 53 are intended to obtain equality, in effect, between the Secretary of State and his counterparts in the devolved Administrations, notwithstanding the fact that, to go by the Secretary of State’s response when challenged on Second Reading, all appointments are likely to be devolved to the Appointments Commission in any event. I seek some guidance about representative capacity.
Amendment No. 163 would leave on the CHRE some representative of the regulators. While in my view, currently, the council of 19 members, with every regulator represented, might be unwieldy, surely it is not right that their voice should be completely silenced, which is why the amendment would preserve it.
Mr. Bradshaw: The reason we are reforming the Council for Healthcare Regulatory Excellence is to ensure that it fits with the new regulatory landscape, including shifting its role from being the sum of the existing regulators to being the independent voice of the patient. Part of the change, we believe, merits reducing the size of the council from the rather large membership of 19 to nine—seven non-executive and two executive. That is consistent with the Government’s general approach in trying to make the professional regulatory bodies more board-like and strategic.
The amendments would significantly increase the size of the council, bringing it back up from nine to 16, and would alter its make-up by adding a non-executive member representing the regulatory bodies. Amendment No. 53 specifically would add two further non-executives appointed by the Appointments Commission alone. As I have said, it is already our intention for the Secretary of State to arrange for his appointments functions to be exercised by the Appointments Commission anyway, which I hope renders the amendment unnecessary.
I am particularly concerned about amendment No. 163, because of the point that I have just made. I am not clear whether the regulatory bodies would collectively nominate the member. The important point to note, however, is that the function of the council is changing, so that the CHRE can promote the interests of patients and members of the public in relation to the performance of regulatory bodies and be an authoritative independent voice on the regulation of professionals. It is not appropriate for regulatory bodies themselves to delegate or to send a representative to the body that regulates the professions.
Amendment No. 252 would decrease the number of executive members to just one. That would not be consistent with usual practice among other arm’s length bodies sponsored by my Department and others. For example, it is common practice for regulatory bodies to include their finance director on the board or council, and it obviously makes sense to allow the CHRE to follow that example if it so wishes.
In the light of those reassurances, I hope that my hon. Friend and the hon. Member for Eddisbury will not press their amendments.
Kelvin Hopkins: I thank my hon. Friend for his response, particularly on the Scottish point, and I entirely accept what he says. As he may recall, emphasis was placed during the hearings on the importance of having diverse representation on all health bodies, particularly in constituencies such as mine, and it is important for people from minorities to be genuinely represented. I will not press my amendments to a vote, but I hope that my hon. Friend will seek to ensure that diversity in gender and everything else is properly reflected in public appointments to all these bodies.
Mr. O'Brien: I shall not press my amendments to a vote because we have had our debate, and it has been helpful to have a bit more clarity from the Minister on the issue, although we may return to it. Clearly, this is an important issue, and I dare say that we shall all do some more thinking about it.
Kelvin Hopkins: I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. O'Brien: I beg to move amendment No. 164, in clause 106, page 52, leave out line 27.
The amendment can be dispatched very quickly, and I almost feel inclined to say, “Give us a break.” The clause seeks to replace the word “chairman” in the 2002 Act with the word “chair”. I could do a complete rant about political correctness. We have all moved on and we do not need to go back and completely redraft everything. I really think that the provision smacks of “Animal Farm”, and we could do without it. I therefore hope that the Minister will accept my amendment so that we can move on quickly.
Mr. Bradshaw: I imagine that the Equal Opportunities Commission would take exception to being compared to “Animal Farm”—
Mr. O'Brien: I was not talking about the commission.
Mr. Bradshaw: Yes, but it is the commission’s recommendation that we are carrying out by replacing the term “chairman” with the term “chair”. If the hon. Gentleman really wants to take up the Committee’s time by debating the issue at length or putting it to a vote, that is his call.
Mr. O'Brien: It is not worth the time. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 106 ordered to stand part of the Bill.

Clause 107

Powers of Secretary of State and devolved administrations
Mr. O'Brien: I beg to move amendment No. 207, in clause 107, page 53, leave out lines 13 to 17.
The amendment seeks to remove the Secretary of State’s power to direct the CHRE. The council is another of those so-called independent bodies in the Bill whose governance leads inexorably back to the Secretary of State. In response to a question from my hon. Friend the Member for Tiverton and Honiton during the evidence sessions, Lady Justice Smith said that,
“it is important, particularly in the health sphere, that the adjudicatory body should be seen to be independent of Government because the Government are a huge customer of healthcare; the biggest customer of healthcare. Therefore, it is important that there should be no suspicion that the Government are in a position to pull strings behind the scenes, as to what goes on. Absolute clarity and absolute independence are really important. ——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 42.]
On the basis of that, I rest my case.
Mr. Bradshaw: As I have said before in relation not just to the CHRE but to the Healthcare Commission, there is no intention to fetter the body’s freedom. The reason for this power is to ensure that, where necessary, a Secretary of State can ask the council to prioritise certain areas of its work load over others: for example, in cases in which there is particular public concern about a certain regulatory issue, or in which the expert input of the council is required in a particular Department of Health project. The powers could also be used to require the council to consult specific bodies, including the public, in undertaking its duty to inform and consult, which we discussed earlier. I hope that in the light of that explanation the hon. Gentleman feels reassured enough to withdraw his amendment.
Mr. O'Brien: Yes. We will probably have to allude to the matter on another occasion. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 107 ordered to stand part of the Bill.

Clause 108

Duty to inform and consult the public
Kelvin Hopkins: I beg to move amendment No. 255, in clause 108, page 53, line 37, leave out ‘seek the views of’ and insert ‘consult’.
The Chairman: With this it will be convenient to discuss the following amendments: No. 256, in clause 108, page 53, line 40, at end insert—
‘(c) such other organisations representing patient and public interests as the Secretary of State shall by regulation specify.’.
No. 257, in clause 108, page 53, line 41, after ‘matters’, insert ‘of policy’.
No. 258, in clause 108, page 53, line 41, at end add—
‘(5) The Council must—
(a) consult with public and patient organisations in England, Scotland, Wales and Northern Ireland on its work programme, including—
(i) the standards,
(ii) minimum requirements, and
(iii) supporting evidence, to be used in its regulatory performance review, and
(b) publish at least annually a report on its consultations in England, Scotland, Wales and Northern Ireland held in accordance with this section.’.
Kelvin Hopkins: The amendments seek to strengthen clause 108 by inserting in subsection (4) the word “consult” instead of “seek the views of”. It seems strange that the word “consult” is included in the clause heading and is then softened further down to “seek the views of”. The process of seeking views is less active, less mutual and weaker than the process of consulting. Consulting is a two-way process; “seeking the views of” is a one-way process. I, therefore, ask my hon. Friend the Minister to consider seriously this amendment.
The other component of my amendments would give more powers to my hon. Friend, or the Secretary of State, to specify other organisations that might be consulted. Proposed subsection (4)(c) would give the Secretary of State—in addition to the council—powers to specify other bodies that might represent patients and the public. It seems to me that giving extra powers to the Secretary of State might appeal to my hon. Friend, and I hope that he accepts the amendments. The firming up of the clause would be welcomed by those who are concerned about public and patient representation in health.
Mr. Bradshaw: As my hon. Friend has rightly pointed out, the CHRE will have a new duty to inform and consult the public about the exercise of its functions in the clause. That comes on top of the new main objective that we have already discussed about aligning the exercise of its duties with the interests of both patients and the wider public, and the improvement in the new board structure, which will be mainly lay with no regulatory body representatives. His amendment, however, would tie the CHRE’s hands as to how it consults. The view of the council’s current chief executive, which we share, is that such formal consultation as my hon. Friend refers to may not always be the most appropriate way to take soundings from people.
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We believe that the CHRE will be capable of making the right decisions about how to consult on particular issues, but as my hon. Friend has probably noticed, it will be possible use the new Secretary of State power to issue directions to the council on the manner in which it must exercise its functions. We have that safeguard if we feel that it is not consulting properly. As we discussed earlier, the council also has the obligation to promote best practice and good regulation, which will include good consultation.
Mr. O'Brien: As the Minister has seen, I did not participate in the debate on the amendments, but he has just prayed in aid the fact that he could use the Secretary of State’s reserved power to direct. That is what causes us some concern about independence. There is tension in the Bill between seeking to protect by having a power of direction and convincing many of us that there will be sufficient independence.
Mr. Bradshaw: We think it a sensible balance, which will meet the concerns expressed by my hon. Friend that the body might not consult adequately. It will provide a way for hon. Members to express their concerns, so we think that it is a sensible power to keep. We do not expect to have to use it.
On my hon. Friend’s amendment No. 258, paragraph 16 of schedule 7 to the 2002 Act already requires the council to
“prepare a report on the exercise of its functions during each financial year”,
so we do not think the amendment on that matter is necessary. The report that the council is required to table under the 2002 Act should include details about how it has undertaken its duty to consult and inform the public.
Although the amendments in the group are well intentioned, they are not strictly necessary. They are more prescriptive than the proposals in the Bill and would not enable anything that is not already possible given the council’s existing powers. In that light, I urge my hon. Friend to withdraw the amendment.
Kelvin Hopkins: I am rather disappointed that my hon. Friend has not at least accepted the amendment to substitute “consult” for “seek the views of.” There is a difference, and I know from my experience of dealing with health bodies in my constituency and local area that some health officials—I shall not name names—are less than enthusiastic about consulting the public. They will receive a letter and say, “Thank you very much”, but when it comes to consultation they are less enthusiastic. Sometimes we want to get our point across; we have an active patient and public involvement forum, with a redoubtable chairperson who would undoubtedly be considered a busybody by the health authority but is a fine representative of my constituents and a personal friend of mine.
Angela Browning (Tiverton and Honiton) (Con): I wish to articulate the thought that went through my mind when the Minister talked about “busybodies”. I can think of several people whom he might describe as busybodies, who are usually fine women of a certain age past whom no detail goes without their ensuring that it gets to the right desk. We need a few more busybodies examining what is going on in the health service. The fact that they do that in their free time is an asset.
Kelvin Hopkins: I did not want to start that hare running, but I say to the hon. Lady that I will not pass on the word “busybody” to my dear friend locally who is chair of our PPI forum and does a splendid job, especially as she happens to be, privately, a member of our party as well, which would probably automatically come under the general category of busybody. Our job as representatives is sometimes to be busybodies and I am a bit of a busybody myself. I hope that the Minister will think further on these matters and the wording of the provision and perhaps return with an improvement to the clause at a later stage. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 108 ordered to stand part of the Bill.
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