Mr.
Stephen O'Brien: I beg to move amendment 22, in
schedule 3, page 42, line 13, after
Ministers’, insert ‘after
consultation’. This
galloping through can be quite catching, Mr. Key. However, I
am afraid that a number of amendments have been tabled to schedule 3.
We will try to rattle through them, but from page 42 of the Bill, there
is a lot of detail that must be looked at
carefully. The
amendments on this schedule relate to the terms of office of members.
We want to explore aspects of the new suspension powers and how they
will bite on various bodies. What consultation does the Minister plan
to undertake before making these regulations? Why will this power be
created through regulations in relation to this Bill and not the other
Acts that are listed in the schedule? Will the Minister confirm which
bodies the power applies to, other than the Commission on Human
Medicines?
Mr.
Mike O'Brien: The amendment would place a duty on the
Minister to undertake consultation prior to any ancillary provisions
being made by regulations relating to the Commission on Human
Medicines, committees or expert advisory groups. The provision extends
beyond the commission to various committees and expert advisory groups.
The Secretary of State will work jointly with the Minister for Health,
Social Services and Public Safety in the Northern Ireland Executive to
enact any regulations. It is important that they have the flexibility
to react swiftly to changing circumstances. Consultation on the
technical detail of this essentially administrative process would take
time and could delay essential
appointments. Formal
consultation on the proposed suspension powers and processes has
already been undertaken. The devolved Administrations and the
non-executive communities support the proposals. I hope that the hon.
Gentleman will withdraw the amendment because the consultation on the
processes has already taken place and has secured
support.
Mr.
Stephen O'Brien: I beg to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn. 12.45
pm
Mr.
Stephen O'Brien: I beg to move amendment 23, in
schedule 3, page 43, line 9, at
end insert— ‘(9) The
Secretary of State may by regulations make provision for compensation
if the suspension is revoked under sub-paragraph
8(a).’.
The
Chairman: With this it will be convenient to discuss
amendment 24, in
schedule 3, page 44, line 42, at
end insert— ‘(9) The
Secretary of State may by regulations make provision for compensation
if the suspension is revoked under sub-paragraph
7(a).’.
Mr.
O'Brien: Amendment 23 would make provision for
compensation if a suspension from the Alcohol Education and Research
Council is revoked by the Secretary of State, and amendment 24 would
make a similar provision in relation to the Human Fertilisation and
Embryology Authority.
The
amendments would prevent the Secretary of State from wielding his power
lightly. An improper suspension could not only bring unnecessary
heartache to a hard-working non-executives and those around them, but
it could be detrimental to the boards that they serve. I reserve a
particular concern about the HFEA. Given the failure of the Government
to give a free vote on that legislation last year, I am concerned that
the Secretary of State is able to hang the threat of suspension over
non-executive members of the authority with whom he might disagree.
Obviously, in the rare case that the suspension is justified but
revoked, no compensation would be a suitable option, hence leaving the
Secretary of State free to make
regulations.
Mr.
Mike O'Brien: A decision to suspend an individual is
intended to be a neutral act taken to further an investigation and does
not indicate grounds for permanently removing an appointee from office.
That would be determined through a formal termination process, so
evidence would have to be sought, an investigation undertaken and a
decision
made. Allowing
compensation payments to be made in such circumstances would be
inconsistent with the sentiment of the proposed suspension policy. The
policy is already accepted within the NHS and indeed, such a provision
would probably have implications for wider employment law. When someone
has been suspended on full remuneration, it does not indicate guilt or
produce a requirement for compensation to be paid.
Suspended
appointees of the HFEA would continue to receive any remuneration to
which they are entitled throughout the period of suspension, but
members of the AERC are not currently remunerated. The Secretary of
State would have to take action in an appropriate, formal investigatory
way and reach an appropriate determination in any investigation. There
are protections within the process that enable any abuse by a Secretary
of State or anyone else to be dealt with
appropriately.
Mr.
Stephen O'Brien: The Minister is of course completely
right that a suspension is intended, and must be seen, to be a neutral
act, and it must always be presumed that someone will be retained and
confirmed in their position as much as it is presumed that they might
lose their position as a result of a period of suspension in which they
have had an opportunity to answer questions that might be put to them.
Indeed, they might find that there is no question to answer. Therefore,
with those assurances, I beg to ask leave to withdraw the
amendment. Amendment,
by leave, withdrawn.
Mr.
Stephen O'Brien: I beg to move amendment 183, in
schedule 3, page 44, line 42, at
end insert— ‘(9) Where a
person is suspended under paragraph 5A, in relation to a condition
under paragraph 5(5)(c), the Secretary of State shall make a statement
to
Parliament.’.
The
Chairman: With this it will be convenient to discuss
amendment 30 , in
schedule 3, page 47, line 35, at
end insert— ‘(3) Where a
person is suspended under paragraph 2(2)(c), the Secretary of State
shall make a statement to
Parliament.’.
Mr.
O'Brien: Amendment 183 would introduce further safeguards
against the Secretary of State’s power and bring the matter
within the ambit of parliamentary scrutiny. The Bill gives the
Secretary of State the power to suspend a non-executive using the same
grounds on which the power to terminate employment rests. Those
grounds, which are outlined in paragraph 5 of schedule 1 to
the Human Fertilisation and Embryology Act 1990, are that a
person
“(a)
has been absent from meetings of the Authority for six consecutive
months or longer without the permission of the Authority, or...(b)
has become bankrupt or made an arrangement with his creditors, or, in
Scotland, has had his estate sequestrated or has granted a trust deed
for or entered into an arrangement with his creditors, or...(c) is
unable or unfit to discharge the functions of a
member”. Paragraphs
(a) and (b) are obviously discrete categories, but paragraph (c) is
more subjective. It therefore seems fitting that suspension on the
ground of paragraph (c) should be put before Parliament.
Amendment 30
refers to the suspension of monitors and non-executives in the same
terms. Under paragraph 2(2)(b) of schedule 8 to the NHS Act
2006, the Secretary of State can fire a person on the grounds of
incapacity or misbehaviour. If an individual is fired, the Secretary of
State would have to consider whether those grounds would stand up in
court. Suspension is much less likely to end up in the courts, so the
amendment seeks to mitigate the breadth of the power by giving
Parliament a role. The question is how it would have such a role. That
could be a matter under the ambit of a form such as the Select
Committee.
Mr.
Mike O'Brien: I have some concerns about the amendment.
There may be personal circumstances, perhaps ill health or other
issues, that we should have cognisance of when making decisions about
whether statements should be made to Parliament. Details would be in
the public domain under all circumstances where a public employee of a
body accountable to the Secretary of State is suspended; the awareness
of that suspension would become public. It is not necessary for a
separate statement to be made to Parliament when a public employee is
suspended from monitor or the HFEA. However, we need to consider
matters case by case to identify the most appropriate way of passing on
information that ought to be communicated to Parliament. It is not
usual for statements to be made under these circumstances. It is
difficult to know, if personal issues were involved, whether the
Minister would be able to detail those. In some cases it might be
appropriate to do that, in others it may not. Given the variability of
cases and the circumstances that apply, we should not be too
prescriptive about the way in which matters should be dealt with. To
some extent—and much as it may go against the grain—this
is an area where there must be an element of trust that the Ministers
and Secretary of State will make appropriate decisions about how much a
particular individual’s circumstances can be put into the public
domain. With those reassurances that we intend Parliament to be as
informed as it should appropriately be, I hope the hon. Gentleman will
withdraw his amendment.
Mr.
Stephen O'Brien: I am grateful. I acknowledge that the
Minister recognises that this is tricky territory that carries with it
the potential sensitivities of human circumstances. He talked about
that in terms of illness, but it also interrelates—if there is a
parliamentary opportunity—with operation of the sub judice rule.
That may or may not be invoked at that point, depending on whether
there is something before the courts, or indicated to be.
To some
degree, the thinking that lay behind the amendment came from
frustration about the accountability and timing that arose as a result
of wanting to discuss what happened at Maidstone and Tunbridge
Wells—particularly in relation to the former chief executive
Rose Gibb. That became a subject that was impossible to question, given
there were such deep anxieties, not least for the patients and their
families who were in the catchment area for that hospitals trust. The
thinking was to try to find a way of making sure there was an
opportunity to air some of the issues, despite suspension and the
operation of the sub judice rule under “Erskine May”, and
such things. It has been useful to air the amendment, but I do not wish
to press it. I beg to ask leave to withdraw the
amendment. Amendment,
by leave, withdrawn.
Mr.
Stephen O'Brien: I beg to move amendment 27, in
schedule 3, page 47, leave out lines 14 to
16 and insert ‘the Commission must have
regard to the Secretary of State’s advice regarding the
appointment of the
vice-chairman’.
The
Chairman: With this it will be convenient to discuss
amendment 26 , in
schedule 3, page 47, line 19, at
end insert— ‘(c) make
provision about the appointment of new non-executives, and of one as
vice-chairman in the event that all non-executives are
suspended.’.
Mr.
O'Brien: Briefly, amendment 27 breaks the convention that
the legislation carries the Secretary of State as the actor, but, as
has been confirmed, action is devolved to the appointments commission.
This part of the schedule addresses the Appointments Commission itself.
Given the power the appointment has, and the Government’s
tendency to meddle in appointments—as we have argued—it
is even more essential that the Secretary of State is kept on a tight
leash. I hope the Minister can tell the Committee how the Appointments
Commission appoints its own non-executives and the Secretary of
State’s role in that.
Amendment 26
is merely a probing amendment to find out what happens in the,
admittedly, unlikely but not implausible event that all the
non-executives are suspended.
Mr.
Mike O'Brien: Suspending the chairman of a board or the
entire non-executive team is a drastic action. In such circumstances,
it is essential that the Secretary of State can provide for someone to
lead the commission during such a challenging period.
Schedule 4 to the Health Act 2006 already allows the
Secretary of State to appoint non-executives to the commission, so
amendment 26 is not necessary.
If the chair
alone were suspended, the full expectation is that the vice-chair
appointed by the commission’s board would, in most cases, be
well placed to remain as vice-chair. Where that is not the case, it
would not be appropriate for the commission to elect its own
vice-chair, even with the benefit of the Secretary of State’s
advice.
Although the
commission is an impartial organisation, it must remain accountable to
the Secretary of State, who is accountable to Parliament. That requires
that the Secretary of State has the power to make provision for
appointing the leadership of commission’s board.
That is the
way in which we would seek to proceed. With those reassurances, I hope
that the hon. Gentleman will withdraw the
amendment.
Mr.
Stephen O'Brien: I beg to ask leave to withdraw the
amendment.
Amendment,
by leave, withdrawn.
Mr.
Stephen O'Brien: I beg to move amendment 28, in
schedule 3, page 47, line 22, leave
out ‘for paragraph 9(d) substitute’ and
insert ‘at
end of paragraph 9(d)
insert’.
The
Chairman: With this it will be convenient to discuss
amendment 29, in
schedule 3, page 47, line 26, leave
out ‘for paragraph 5(d) substitute’ and insert
‘at end of
paragraph 5(d)
insert’.
Mr.
O'Brien: Amendment 28 refers to the provision in schedule
3, paragraph 10, to replace paragraph 9(d) of schedule 2 to the
National Health Service Act 2006, which makes provision for regulations
regarding “the
circumstances in which a member of a Strategic Health Authority who is
(or must be regarded as) an officer of the Strategic Health Authority
may be suspended from performing his functions as a
member”. Similarly,
amendment 29 refers to the provision in schedule 3, paragraph 11, to
replace paragraph 5(d) of schedule 6 to the Act, which makes provision
for regulations regarding similar points.
I hope that
the Minister can explain why those changes have been made. Given that
the Act is from 2006, it is strange that the Government did not get it
right the first time.
Mr.
Mike O'Brien: This is a great Government, but we are not
infallible. We live and
learn— [Interruption.] We will live for
quite a while longer. One never knows.
The Bill
replaces paragraphs 9(d) of schedule 2 and 5(d) of schedule
6 to the 2006 Act, both of which refer only
to officer members of strategic health authorities or special health
authorities. The replacement paragraphs include chairs, vice-chairs and
other members. The
amendments would serve only to duplicate the regulation-making
provisions for members. With that clarification, I hope that the hon.
Gentleman will not press his amendments.
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