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Health Bill [H.L.]

3.33 p.m.

The Parliamentary Under-Secretary of State, Department of Health (Baroness Hayman): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.--(Baroness Hayman.)

On Question, Motion agreed to.

House in Committee accordingly.


Clause 47 [Regulation of health care and associated professions]:

Lord Clement-Jones moved Amendment No. 194:

Page 38, line 14, after ("Council") insert ("within the period of one year from the coming into force of this section").

The noble Lord said: In moving this amendment, perhaps I may say first what a pleasure it is to debate parts of this Bill in daylight. I thank the usual channels for that. We have now come to one of the most crucial parts of the Bill and it is good to be considering it at a time that will allow a considerable number of members of professions relating to healthcare to watch our proceedings with interest.

The effect of the amendment would be to ensure that the considerable powers of Clause 47 will be exercisable for only a single year. We on these Benches said at Second Reading that this so-called Henry VIIIth clause went far too far. As Members of the Committee will know, we were supported in that view by the Select Committee on Delegated Powers and Deregulation, which stated:

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That report was extremely balanced. It did not damn the whole of Clause 47. The Select Committee understood the need for flexibility but recognised that, as currently framed, the clause goes far too far. We have received representations on that point as, I am sure, have other Members of the Committee. Our amendment is designed to put a finite limit on the Government's ability to use the clause while it is of the breadth currently drafted.

At this stage, Amendment No. 194 is essentially a probing amendment to ascertain whether the Government will accede to the request of the professions and their regulatory bodies to build in the safeguards that we and they believe to be essential. Many of those safeguards are subject to the amendments which stand in the name of the noble Lord, Lord Walton of Detchant-- I refer to Amendments Nos. 202 to 204--and to our own later amendments. The protections are sought by all those professions which are currently regulated and include such important matters as provisions relating to lay representation; consent and proper consultation over rule changes; the transfer of functions to other bodies; the removal of Privy Council jurisdiction and, last but certainly not least, the whole question of protection of common titles.

We understand the desires of all parties to have a flexible framework, but that must not be at the expense of allowing self-regulation to give way to government regulation. The Minister said at Second Reading:

    "This power is not about dismantling self-regulation. We share the common aspiration to strengthen, not weaken, that self-regulation".--[Official Report, 9/2/99; col. 112.]
I very much hope that the Minister can indicate a certain flexibility in this clause. We very much look forward to her response. I beg to move.

Baroness Hayman: I am grateful to the noble Lord, Lord Clement-Jones, for the way in which he moved the amendment and for making clear the fact that he is not totally wedded to a time frame of one year, but rather wanted to debate some of the more general issues. With the best will in the world, given the scale of the task in front of us and what needs to be done, allowing only one year for such an order-making power would be unrealistic. It is perhaps worth looking at why it would be unrealistic and considering the motivation for including an order-making power in the Bill in the first place. There were two reasons. First, there is an enormous backlog of desirable changes to be made to the legislation governing professional self-regulation. The replacement of legislation for the professions allied to medicine will require a substantial order of a similar size to the present Professions Supplementary to Medicine Act 1960. The professions have been pressing for that for some time, as the noble Lord and the Committee are aware.

We also want to replace the nurses, midwives and health visitors legislation and have recently published the review and the Government's response to it. Desirable changes for dentists, opticians and pharmacists are already well developed. There is also the challenge posed for us by professions which are not at present regulated by statute. The Government intend

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in time that the power can be used to introduce new regulatory schemes for such professional groups as psychologists or counsellors. A great number of professions linked to medicine are looking at ways of strengthening public protection through their systems of self-regulation.

There is a large quantum of work. What has also been clear from the debates in Committee is the desire that, in doing this work through secondary legislation, we should not curtail proper debate and discussion on these important issues. That means that we would not want to see anything rushed through without sufficient time to consult properly and fully with the professions concerned and with other interests. We shall come to specific amendments about them later. We want to work in partnership with the professions and thus ensure that we have enough time to develop the framework that is most appropriate for all the groups which might be affected or might wish to be considered. We must have time to ensure that the public is afforded the protection for which this clause is primarily designed.

Prior to the making of an order under Clause 47, we intend that there will be full consultation with the profession concerned and other interested groups; for example, patient groups, the Welsh and Northern Ireland Assemblies and the Scottish Parliament. We anticipate that the professional and regulatory bodies will wish to consult their members. Once an order has been drafted the draft must be published at least three months in advance of the draft order being laid before Parliament. Consultation on the draft order must be carried out. All this takes time.

Even if it were possible to clear just the current backlog of desirable proposals within the next few years, time-limiting the power would not be desirable. That is because this power is not designed as a quick fix to deal with problems built up over the past few years. The modernisation of the statutory regulatory bodies is an on-going process. Clause 47 and Schedule 3 provide a way of ensuring that the process of updating legislation can be more responsive to changing expectations of the professions and the public. For example, the GMC's proposals for revalidation, which, I believe, have been met with universal approval, will take at least two years to develop and implement. It may be some time before it is clear whether any changes to the law are necessary to underpin that.

I understand the motivation behind this amendment and assure the Committee that we have built in a system of appropriate checks and balances. I hope that we have taken into account the spirit of the comments of the Delegated Powers and Deregulation Committee which undertook, as the noble Lord pointed out, particular consideration of this issue. The committee recognised that the problem was,

    "striking the right balance to protect the interests of all concerned bodies",
rather than saying that an order-making power was not the appropriate way to tackle this task. That committee recognised that we had already built in a number of important procedural safeguards. It also suggested that the House consider two further safeguards: a requirement for the Minister, when laying a draft order,

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also to lay before Parliament a summary of representations received, showing in particular whether the professional body affected by the draft order had, first, been consulted, and what was the result of that consultation; secondly had agreed the provisions in the order; and, thirdly, if not, the reasons for making the order without the consent of the professions concerned. Its second recommendation was that the Bill might be amended to include a statement of the criteria against which the Minister could act in the absence of agreement with the professional body or bodies concerned--that is to say,

    "for the protection of the public and for the better development of the profession".
The Government accept these recommendations in principle and will look to bring forward appropriate amendments.

I hope that the Committee will agree that to impose a cut-off point after which the order-making power could not be used would therefore severely damage its usefulness in allowing the professions to develop and in allowing the Government to discharge their duty of protecting the public. It is, I believe, significant that the delegated powers committee did not advise the House that the power was drawn inappropriately wide, or that it should be time-limited. In accepting the committee's recommendations, I believe that we have now struck the right balance in terms of procedural safeguards and I hope that the noble Lord is reassured and will withdraw his amendment.

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