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Lord Hunt of Kings Heath: I do not accept that point at all. The fact is that we have had long and detailed discussions with all the regulatory bodies over the past few months. We have come to an agreement over the use of affirmative resolutions in relation to the discharge of the power of direction which is to be given to the new council. In a statement—not at the height of the publication of the Kennedy report but only a few weeks ago—the regulatory bodies themselves have said that they are agreeable to what is being proposed. One cannot discount the views being expressed by the regulatory bodies.

Baroness Finlay of Llandaff: I thank the Minister for giving way. While he is on the point, can he confirm that an affirmative resolution of the power of direction must not merely be laid before Parliament but must be debated and will be subject to a free vote?

Lord Hunt of Kings Heath: Clearly, if it is an affirmative resolution it will have to be debated. I dare not talk about free votes with the Government Chief Whip in his place. That is not a matter for me. However, as my noble friend has pointed out, there is always the prospect of a free vote for Cross-Benchers.

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I find it difficult to support Amendment No. 160. It would give a less proactive role to the council to encourage co-operation between the regulatory bodies and to conform to good principles of regulation. The amendment would only hinder the council in its constructive activities of ensuring a consistency of approach between the different regulatory bodies. That again was surely a point made by Kennedy. It was a part of his rationale for establishing the council. It was also, in his view, a reason for the council to work closely with other quality-related bodies.

The amendment would make it harder for the council, should it find it necessary, to promote co-operation between, for example, the regulatory body and the quality assurance agency in regard to the fitness for purpose of educational courses and qualifications; or between all of the regulatory bodies and, for example, the General Social Care Council; or between the GMC, the GDC and the National Clinical Assessment Authority in regard to the thresholds at which poor performance by a doctor or dentist must lead to referral to his or her regulatory body.

Of course these dialogues could take place without the council's encouragement—some already do at the moment—but if they were breaking down, the amendment would make it hard for the council to use its good offices to salvage them. The amendment would also delete the council's role in encouraging regulatory bodies to conform with the principles of good, professional self-regulation but that is just what we want the council to do. I do not believe that the regulatory bodies have any problems with that concept.

Amendment No. 165 deletes one of the examples of the council's powers from Clause 24(2). It takes away the words

"recommend to a regulatory body changes to the way in which it performs any of its functions".

We want the council to be able to recommend changes to a regulator. Surely that flows naturally from the other functions of reporting on performance and, where appropriate, comparing the regulatory bodies mentioned in Clause 24(2). That is also a necessary way of carrying out the functions bestowed on the council in Clause 23. The purpose of the council is to provide energy for improvement. If we agree that—as Clause 23 states—the council should promote best practice, for anyone not already following best practice surely that amounts to a recommendation for change.

The council's working methods are for it to decide. It might decide to invite regulators to pool their experience on an issue such as using the findings of overseas regulatory bodies. That might show that one or two bodies with more experience had better systems than the others. The council might publish guidance suggesting the advantages of their approach. Surely that should be encouraged.

Amendments Nos. 165YA and 165ZA address the same subsection. Instead of deleting it, they would make minor changes to the wording. They would not alter the effect of the Bill. I do not believe that it is

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necessary to spell out that any changes recommended would need to be improvements. The council would not suggest changes unless it believed that to be the case.

Amendment No. 166 requires the council to consult a profession on which a Minister has asked its advice before giving that advice. I agree that is a reasonable way to expect the council to proceed but I do not think that needs to be written into the Bill. There may be situations where it would be appropriate for the council to consult the professions before giving advice. Equally, we can envisage situations where the council would consult regulatory bodies frequently through consultations, meetings and documents in the legitimate way that it goes about its business. There may be a situation where Ministers need information about a profession to which the council already has access. Some of that information may be fairly routine. If the council had to consult before it could give such advice, that would surely cause unnecessary delay.

I listened with great interest to the noble Earl's comments about the dangers, as he saw them, of a lay majority on the council but it will contain also nine members appointed by the regulatory bodies who will have expertise of particular health professions. They will be in a good position to give advice on the information that should be provided directly to Ministers and on the issues that may need appropriate consultation with the regulatory body. It would be inflexible if such processes needed to be prescribed in the Bill—particularly since one is talking about giving advice.

I understand that the purpose of Amendment No. 172 is to seek reassurance that the duty to co-operate is not absolute. When a comparable amendment was debated in Committee in another place, my right honourable friend the Minister of State for Health, Mr. John Hutton, gave an assurance that in approaching any decision, the council would have to act reasonably and on the basis of evidence that would support its determination, which shows that there are sufficient safeguards in the system.

I can also offer the reassurance that the duty to co-operate is not absolute. If any court is ever called upon to consider whether a regulatory body was in default, I expect that reasonableness would be very much part of the courts determination. In essence, that is the answer to the noble Earl. If a regulator refused to comply with a direction made under the clause, it would be open to the council to seek, by way of judicial review, an appropriate declaration or order from the courts. Then it would be up to the courts to make such a decision.

Turning to Amendment No. 173, Clause 25 contemplates a situation where the council has identified a problem with the way in which one regulatory body's rules operate. There will have been discussions, perhaps extended ones, but no meeting of minds. If this is about some minor matter, it can clearly be allowed to rest there, but if the council has concluded that change is necessary for the protection of members of the public it needs to have some means

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to allow it to carry on its work. That is why we must retain the power of the council to impose a change, although we envisage this rarely if ever being used. My right honourable friend the Minister for Health also gave such assurances in Committee in another place. Amendment No. 173 would weaken the council and its ability to work in the interest of the public.

I repeat that there have been statements of support from regulators. For example, the UKCC of nurses, midwives and health visitors welcomes the suggested accountability arrangements. The chief executive of the UKCC said last August:

"Being accountable to Parliament through the new council seems sensible and simple and ensures independence from the government of the day".

I have other quotations with which I shall not trouble the Committee at this late hour.

I now turn to the government amendments, which are important to our debate. Amendments Nos. 174 to 179 and 189 to 194 ensure that before the council could use its reserve power to direct a regulator to change its rules, the direction would need to be approved by affirmative resolution of both Houses of Parliament.

The council should, as a last resort, be able to require a regulator to change its rules in the public interest provided that both Houses of Parliament agree. Surely, adopting this approach preserves the principle that regulators are accountable to Parliament.

The drafting is a little complex for two reasons. The Bill puts all the provisions relating to orders together in Clause 36. Secondly, the amendments have to cover all eventualities, including directions which vary or revoke earlier directions. I hasten to add that the number of words used is not a guide to the frequency with which this power is likely to be used.

The key amendments are Amendments Nos. 176 and 191. Together, these provide that a direction shall come into force on a date specificed by the Secretary of State by order, such draft order being approved by resolution of each House. That is the change which the Select Committee on Delegated Powers and Regulatory Reform recommended in its report on the Bill. I am grateful to the committee for its report. As I have said, the changes it suggested have won the approval of the professional regulatory bodies, leading to a satisfactory conclusion.

I do not under-estimate the original concerns of some of the regulatory bodies. I take in good faith the criticisms that the noble Earl, Lord Howe, has brought together. I strongly believe in professional self-regulation. I believe that the new council will enhance that self-regulation, and that the amendments that I now propose will ensure the primacy of Parliament in having to agree through the affirmative resolution procedure any use of such a direction.

A balance must always be held between professional self-regulation, parliamentary accountabilty and the public interest. I believe that, taken together with these amendments, we have got the balance right.

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