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Lord Skelmersdale: My Lords, what springs to the mind of the noble Baroness is somewhat different from what springs to my mind. As the noble Baroness has mentioned psychologists, which profession is very close--

Earl Howe: My Lords, we are on Report.

Lord Skelmersdale: My Lords, I know, but the noble Baroness gave way.

As the noble Baroness mentioned psychologists, who are very close to the established medical profession, that is fair enough, but others are very worried about, for example, psychotherapists, who are very akin to them, although the psychologists regard them as very much a lower form of animal.

Baroness Hayman: My Lords, whatever the profession--or the putative profession--concerned, there will be the opportunity to debate whether it is appropriate for it to be given professional self-regulation and the status of a profession that regulates itself. We shall have those debates with each group with which it seems appropriate to deal. I do not think that we can anticipate that. We have to decide whether it is appropriate, with the order-making power, to include new professions either within the new umbrella organisation that will replace the UKCC or in a separate free-standing regulatory scheme. The latter is the proposal which is envisaged in the Bill and I think that it is the appropriate one.

I turn now to the related devolution issues. If an order is made for a profession not reserved to the UK Parliament under the Scotland Act 1998--that is, those that are already regulated--and the proposal comes from Whitehall, to use the noble Lord's formulation, the Secretary of State must also lay the order before the Scottish Parliament. It must be approved by resolution of the Scottish Parliament before he can recommend to Her Majesty that the order be made for the whole of the United Kingdom. If within Scotland a new profession wants to be regulated on its own or refuses to be regulated with England and Wales, equally that will be a matter for the Scottish Parliament. So, there is an alternative approach for the new professions.

It is unlikely that Scotland would want to go ahead alone, for example, with the reflexologists. We would hope that both administrations would consider the issue in tandem and agree the best way forward. Our overall aim must be the protection of patients, wherever they live and wherever they are treated. That is the rationale for professional regulation being a reserved matter. We are dealing with the fact that we may have a changing situation. But I hope that that changing situation will be dealt with on a common basis and a common approach.

I hope that I have covered most of the points that were raised in the debate. I commend the amendment to the House.

On Question, amendment agreed to.

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10 p.m.

Baroness Hayman moved Amendments Nos. 80 to 85:

Page 38, line 17, leave out from ("any") to end of line and insert ("other profession which appears to Her to be concerned (wholly or partly) with the physical or mental health of individuals and to require regulation in pursuance of this section.").
Page 38, line 18, leave out ("those") and insert--
("(a) the professions").
Page 38, line 20, after ("1993") insert ("and").
Page 38, line 21, leave out first ("and") and insert--
("(b) the professions regulated by").
Page 38, line 21, at end insert--
("(c) the professions regulated by the Professions Supplementary to Medicine Act 1960,
(d) any other profession regulated by an Order in Council under this section.").
Page 38, line 22, leave out subsection (3).

The noble Baroness said: My Lords, with the leave of the House I shall move Amendments Nos. 80 to 85 en bloc. I beg to move.

On Question, amendments agreed to.

[Amendment No. 86 not moved.]

Baroness Hayman moved Amendment No. 87:

Page 38, line 29, leave out ("is") and insert ("and the Nurses, Midwives and Health Visitors Act 1997 are").

On Question, amendment agreed to.

Schedule 3 [Regulation of health care and associated professions]:

[Amendments Nos. 88 and 89 not moved.]

The Earl of Northesk moved Amendment No. 90:

Page 51, leave out lines 21 to 23.

The noble Earl said: My Lords, on this amendment I shall lead in place of my noble friend Lord Skelmersdale. I should emphasise that I do not approach this issue from any expertise in health matters. I should perhaps also say that I regret that this amendment "slipped through my net" at Committee; I suspect that it would have been more appropriate to debate it at that time. While in no way excusing my lapse, I offer by way of token defence the fact that it may also have escaped the attention of other noble Lords.

As the Select Committee on Delegated Powers and Deregulation observes, the effect of paragraph 2 of Schedule 3 is to make the order-making power contained in Clause 47 a Henry VIII power. My limited experience of your Lordships' House advises me that, with every justification, we are always nervous of such powers being granted to Ministers. As my noble friend Lord Mackay of Ardbrecknish commented in debate only yesterday, it was this House that set up the Delegated Powers Scrutiny Committee to examine primary legislation and to be particularly vigilant on Henry VIII clauses.

Of course, the real difficulty here is the generally agreed perception that neither House is in a position to

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scrutinise secondary legislation properly. The order-making power on the face of the Bill of,

    "amending or repealing any enactment...or prerogative instrument and any other instrument or document",
creates the position where secondary legislation can be used to amend primary legislation. At any time that is a dangerous precedent. Indeed, as the Minister herself said earlier, it is important to ensure that these wide-ranging powers on the face of the Bill are not untrammelled.

As a matter of principle, Henry VIII clauses sit very uneasily with me, the more so because I simply cannot see the justification for such in this instance. That may well be my own failing. However, I hope that the Minister can elucidate the matter for me. The Explanatory Memorandum offers no assistance. I beg to move.

Lord Skelmersdale: My Lords, my noble friend has virtually said it all. However, I shall read from page 6 of the 7th Report from the Select Committee on Delegated Powers and Deregulation which says, at paragraph 30:

    "The Committee wishes to draw the attention of the House to its recommendations concerning the lack of Parliamentary control over the creation of Primary Care Trusts"--
in which we are not presently interested--

    "the provisions in the Bill for pharmaceutical price regulation"--
with which we dealt with a little earlier--"and", most importantly,

    "the provision enabling the Queen to regulate health care and associated professions by Order in Council (Clause 47 and Schedule 3)".
In this case, Schedule 3 gives the nuts and bolts, as schedules are wont to do, for Clause 47. I feel it necessary to repeat my question. I have had an answer from the noble Lord, Lord Walton, but I have not really heard an answer from the Minister. Are such wide ranging powers appropriate for secondary legislation?

Baroness Hayman: My Lords, the noble Earl and the noble Lord have raised a fundamental issue. It is a fundamental issue that I tried to address on Second Reading, in Committee and on Report. The reason for taking these powers and suggesting that they are appropriate is very much the need to be able to protect patients by being able to provide strong and effective professional self regulation. We need to be able to do that not only in theory but also in practice. The delay that has taken place in terms of waiting for primary legislative slots to do something as simple, for example, as increasing the number of lay members of the General Dental Council as well as something as substantial as replacing the Professions Supplementary to Medicine Act 1960 has been the motivation for the professions being willing and, I believe, from their reaction this evening, welcoming of a properly constrained order-making power in this respect.

The amendment before us would prevent the order-making power being used to amend any current legislation. I appreciate the concerns that have been raised in general, in principle and, indeed, specifically. However, when one looks carefully at the report of the

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Select Committee on Delegated Powers and Deregulation, it will be seen that it recognised the need for such a power in this case if appropriately safeguarded.

We had a very helpful debate in Committee on our intentions as regards the power and on the safeguards and limitations that were needed to reassure Parliament and the professions of those good intentions. We have taken note of what has been said at the various stages of the Bill, the concerns raised by the professions and the recommendations of the Select Committee on Delegated Powers and Deregulation. I hope that noble Lords will agree that we now have provisions that strike the appropriate balance between flexibility and safeguards and which allow us to make progress in what is a very important area.

We are not taking these powers for the sake of it; indeed, we are taking them because we need to work with the professions to strengthen professional self-regulation in a way that will protect patients. I hope that the government amendments brought forward today--and, in the case of consultation, to be brought forward at a future stage--will reassure the House and the professions that we have taken care to ensure that the safeguards and limitations on the use of this power are sufficient to meet the concerns that have been expressed. Indeed, I trust that the noble Earl and the noble Lord will not feel it necessary to press the amendment.

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