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Earl Howe moved Amendment No. 160:
- Page 29, line 27, leave out from beginning to end of line 30.
The noble Earl said: We come now to a significant group of amendments relating to the proposed council for the regulation of healthcare professionals. In moving the amendment, I shall speak also to Amendments Nos. 165, 166, 172 and 173.
We all know the origins of this part of the Bill. In his report on the Bristol Royal Infirmary, Professor Sir Ian Kennedy drew attention to the need for an independent body to oversee the activities of the various statutory regulators of the healthcare professions. In response, the council for the regulation of healthcare professionals is to be set up, with an explicit remit to promote the interests of patients and the public in the way that the regulatory bodies carry out their work. I have no problem with that general concept—indeed, I welcome it in so far as it provides a formalised means of promoting good practice and a consistent approach among all the regulators.
When the Bill was first published—indeed, right up until Second Reading in this House—the proposals for the new council excited no little degree of concern. The main concern related to the council's powers. Besides having the worthy and uncontroversial function of promoting best practice and co-operation between the regulators, it was also being given power to direct any or all of the regulators and, furthermore, to do so without reference to Parliament.
Two cardinal principles are thereby undermined: the accountability of each regulator to Parliament; and the regulator's independence from government. Since Second Reading, an agreement has been reached between the Government and the regulatory bodies that addresses at least part of those concerns. The Minister has already referred to that agreement. The amendments tabled by the Government, to which the Minister will no doubt shortly be speaking, embody the substance of that agreement.
The government amendments provide that any direction made by the council would come into force from a date specified by order and that such an order would be subject to affirmative resolution in both Houses of Parliament. Those provisions reflect the recommendations of your Lordships' Select Committee on Delegated Powers and Regulatory Reform. I am grateful to the Minister for so helpfully writing to me on the matter. I acknowledge that the amendments have been welcomed by the regulatory bodies.
If I am able to give only one-and-a-half cheers to the amendments, not three, that is because they do not go to the root of the concerns that I and many others have voiced. What do we mean by the term "profession"? The essence of a profession is its expertise and its standards. For many years, we have, in this country, had a mechanism for defining and overseeing professional expertise and standards. That mechanism—in the case of the medical profession, it is embodied in the GMC—is characterised by a professional majority in decision-making and by its independence from government. It is the profession, not the government, that decides what constitutes proper standards of practice, training and ethical behaviour. That is as it should be. Governments are in no position to second guess the standards that the professions set themselves. The day that that happens is the day on which the professions will be devalued; their ethos will no longer be their own.
Ultimately, of course, each profession and each professional regulator derives its authority from Parliament. However, Parliament allows them to operate independently. That independence is crucial in the setting of standards. The standards of behaviour and integrity expected of a professional person are higher than for other types of occupation and cover, for instance, sexual mores and the duty to maintain strict confidentiality. We cannot expect a professional to operate to an elevated code of conduct if, at the same time, we allow non-professionals to dictate to him how he should practise. Professional expertise and standards are inextricably intertwined.
What are we to say about the Bill through which an overarching council with a lay chairman and a lay majority is being given powers to direct the professional regulatory bodies? We must examine what the Bill says. Clause 24(2)(c) says that the council may,
- "recommend to a regulatory body changes to the way in which it performs any of its functions".
Whether or not such regulations are subject to affirmative resolution in Parliament, I am deeply troubled that I am being asked to approve a situation in which lay people have power to direct the professional majority and the Privy Council-appointed lay minority of the GMC, the GDC or other regulators. Such lay people will not have been elected and may have no experience of any of the health professions or of the performance or conduct committees that hear allegations against health professionals. They will not obviously have a better sense of the public interest than the lay members of a regulatory body.
I do not know what I would think if I had been appointed by the Privy Council to serve on the GMC and had served for several years only to be informed that the GMC must comply with an instruction issued by a small number of inexperienced lay people, most of them political appointees of one kind or another. I think I would feel demeaned and also that the medical profession was being demeaned.
Can the Minister clarify whether the duty of a regulator to comply with a direction from the council conflicts with the Trustee Acts? The GMC is a charity; its trustees have a duty to act in what they perceive to be the interests of their charity. How can they legitimately be required to do something they consider wrong just because 10 people in another body happen to disagree?
If we are looking for a way of improving the accountability to Parliament of the regulatory bodies, then a mechanism such as a Joint Select Committee would provide that. The Minister will have gathered that I regard the power of direction contained in Clause 25 to be misconceived and likely to lead to serious difficulties. But difficulties are also likely to arise in interpreting some of the wording elsewhere. In Clause 23(2)(c) and (d), dealing with the functions of the council, exactly what are we to understand by the words "encourage" and "promote co-operation"? In precisely what ways will this be done?
What are the implications of those words for the future of uni-professional regulation? Can the Minister say whether the Government are committed
to uni-professional regulation or is there an intention, over the longer term, to try to merge the regulation of the various healthcare professionals, not necessarily in a formal way but perhaps under a more de facto arrangement?If we look on a broader level at what the council will be charged to do, it is not immediately easy to see how a body tasked with policy making and promoting co-operation between the professional regulators will at one and the same time be effective wielding a stick as a regulator in its own right. Simultaneously it will be a facilitator trying to bring bodies together and a prosecutor, judge and jury on any actions of the professional bodies of which it does not approve. That is a potentially uncomfortable combination of roles and, I should have thought, a virtually automatic recipe for tension. I am therefore doubtful about how effective the council can hope to be in any of its stated roles.
Other features also puzzle me. Why is it that when the Secretary of State asks the council for advice on any matter connected with a healthcare profession, as he may under the terms of Clause 24(7), there is absolutely no requirement for the council to consult or seek advice from the profession concerned? I wonder what kind of advice the Secretary of State is likely to receive without such consultation. Furthermore, in Clause 25(1) there is a duty placed on each regulatory body in the exercise of its functions to "co-operate" with the council. Exactly what does that mean? What would a regulatory body have to do to fail in this duty and who would decide whether it had done so?
I am sorry to have spoken at more length than usual, in particular at this time of night, but it has been necessary to do so with such a large grouping of amendments. I beg to move.
Lord Hunt of Kings Heath: I want to reassure the noble Earl, Lord Howe, that I think his fears are overstated. Frankly, I do not believe that they are shared by the regulatory bodies themselves, as I intimated from the extracts of the statement made at the beginning of March by the regulatory bodies, in particular the presidents of the GMC and the GDC.
I share the view that promoting the best interests of patients through securing common principles of regulation and the adoption of best practice is the main goal. To achieve that, we are working with the regulatory bodies to strengthen the framework of professional self-regulation so that it explicitly puts patients' interests first, and provides for greater integration, co-ordination and the sharing of good practice between the regulators.
I understand the concerns raised by the noble Earl about how the new council will discharge its responsibilities. I have no doubt whatever that the new council will be able to achieve its goals in a light-touch way through persuasion, agreement and co-operation with the regulatory bodies on any necessary reform.
However, I also believe that it is important for the council to have the necessary tools to ensure that it can do its job properly, as advocated by Professor
Kennedy, in order to overcome obstacles to reform which could arise. Furthermore, the amendments that I shall speak to shortly and other amendments that have been tabled during the passage of the Bill, which ensure the council's main powers are subject to parliamentary approval, do provide the necessary safeguards in relation to the power of the council to direct the other regulatory bodies.I re-emphasise the enthusiasm with which the regulating bodies generally have welcomed plans to establish the council. One cannot ignore the fact that many of those regulatory bodies have issued statements which make it clear that they welcome the approach the Government have taken.
11.30 p.m.
Baroness Carnegy of Lour: I really cannot sit here while the noble Lord makes his speech. Does he not realise that in accepting the Kennedy report—which they did not have to do—they were doing so in an atmosphere of the "something must be done" syndrome? In accepting the report, the Government made it very difficult indeed for the regulatory bodies to do anything other than welcome it. What would the public have thought if they had refused? It is for Parliament to look at the democratic effect of what the Government are saying. To argue that the regulatory bodies and the professions are quite happy is simply not good enough.
My noble friend made an extremely important speech, which I hope the Minister will read with great care. He put all the points very clearly. The Government will have to be extremely careful. They are on very tricky ground indeed.
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