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Earl Howe: If parliamentary approval is given to an order that embodies a direction given by the council,
why is it necessary to include the words "must comply" in Clause 25(4). If there is an affirmative resolution in Parliament, surely the regulatory body is bound to comply anyway. I wonder whether that part of the clause could be re-examined.
Lord Hunt of Kings Heath: I am happy to look at the technical wording. However, as I understand it, that was certainly the intent before we placed the amendments before the Committee; namely, if the regulator refused to comply with a direction made by the council, it would be open to the council to seek, by way of judicial review, an appropriate declaration or order from the court. Of course, I fully accept that, if Parliament had determined through an affirmative resolution that a direction should be made, it would be highly unusual for one of the regulatory bodies to say that it was not going to apply it. I will, however, look at the wording to ensure that it is consistent with the amendment, and I am grateful to the noble Earl for raising that point.
11.45 p.m.
Earl Howe: I thank the Minister for that reply. I shall make a few concluding comments, if I may. He is, of course, perfectly right to say that the regulatory bodies do not share—or, at least, have not expressed—the same concerns as I have. They have welcomed the Government's amendments, as do I. The amendments are a step in the right direction, and I do not wish to take anything away from that. Wider issues, however, remain unresolved, and they are the ones that I have tried to articulate.
The fact remains, that I fear, that the powers of direction proposed for the council in Clause 25 are potentially wide. As the Royal Pharmaceutical Society pointed out in a paper that it sent to me, no real limits are specified on the use of these powers, on how frequently they can be exercised, or on the circumstances in which they can be deployed. I do not feel any clearer on those points, having listened to the Minister's reply, and we need to be clear about them if we are to understand how the regulatory duties and responsibilities of the professional regulators are to be affected and influenced by the new council.
I do not think that the Minister answered my question about the Trustee Acts, or my question about whether the functions referred to in Clause 24(2)(c) could include ethical guidance and standards.
Lord Hunt of Kings Heath: I shall be happy to respond in writing to the noble Earl, but my understanding is that the council will operate in respect of all functions of the regulatory bodies, although the pharmacy bodies will be an exception because they serve as representative bodies as well as professional self-regulators. So, in relation to the power of direction under Clause 25, what the council will be able to do will depend entirely on what powers
the regulatory bodies have to make rules, and on whether directing a change in rules would be for the protection of the public.
Earl Howe: I am grateful to the Minister for that. As I said, the amendments tabled by the Government are welcome as additional safeguards against any possible maverick direction by the council. We need to be honest with ourselves, however. When all is said and done, the power of direction that is being conferred on the council brings to an end the concept of professional self-regulation. For me and for many others, that is a serious and very regrettable development. This has, however, been a useful exchange of views and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 7 [The Council for the Regulation of Health Care Professionals]:
Baroness Northover moved Amendment No. 161:
- Page 88, line 34, leave out "regulatory body" and insert "of the regulatory bodies referred to in section 23(3)(a) to (h)(i), and three members appointed by the regulatory body referred to in section 23(3)(h)(ii) or the successor regulatory body (within the meaning of Schedule 3 to the Health Act 1999 (c. 8)) to the Council for Professions Supplementary to Medicine (the Health Professions Council) established by order in Council under section 60 of that Act"
The noble Baroness said: I shall speak to Amendments Nos. 161 and 162. As currently proposed, the council will give equal weight to all existing regulatory bodies, regardless of their different sizes, and of whether the body in question regulates one, two or 12 separate professions. No doubt, this was the simplest way that the Department of Health could come up with, given the minefield that it was entering. At present, for example, the Bill allows for the appointment of only one representative on the council for the 12 allied health professions regulated by the Council for Professions Supplementary to Medicine. The allied health professions will, therefore, be regulated as though they were a single profession, despite the fact that they are 12 professions with little in common.
Although we recognise that the council could not reflect all the differing proportions of the various bodies, some recognition of this fact is surely due. The Bill allows the General Osteopathic Council and the General Chiropractic Council each to have one person on the over-arching council, despite the fact that the former represents only 3,000 registrants, and the latter only 1,600, while the allied health professions' organisation, which represents 111,000, would also have only one. That does not seem right. The situation is an historical accident. When new bodies are set up, they should not simply enshrine historical accidents but should look at things afresh. After all, the NHS, which was set up with the historical accident of having over-provision of hospitals in one place and under-provision in another, has spent the past half century trying to sort that one out. We should not let historical accident dictate in such cases. The body needs to be
able to take with it all its constituent parts if it is to work. I suggest that the issue should be addressed again.On Amendment No. 162, the Bill establishes an important principle, to which the noble Earl, Lord Howe, has already referred. There is a lay majority on the council. We do not feel that a lay majority is the answer to the problems that the Government are trying to tackle. We would have the professions answerable directly to Parliament. That is appropriate. Meanwhile, the professions themselves are surely best placed to regulate their members, provided they are then answerable to Parliament. I beg to move.
Earl Howe: In the interests of time, I have decided not to speak to Amendments Nos. 163 and 164 and do not intend to move them. However, I shall say a few words about Amendment No. 162, which seems to get to the heart of the awkwardness that characterises the council's intended role. If there are points of agreement among all sides in the debate, they are that we want a council that is independent in its operation and is informed and effective in holding the regulatory bodies to account. The virtue of the Government's formula whereby the appointees of the regulatory bodies are in the minority is that no credible body that formally holds the regulators to account can be controlled by representatives of those regulators. To that extent, I venture to part company with the noble Baroness, Lady Northover.
On the other hand, the noble Baroness has made some very powerful points. How can we call the council independent when it will be controlled by individuals who owe their appointment to Ministers or to one of the regional assemblies? Were it not for the power of direction, I would have much less difficulty with the Government's formula, but I have come to think that there is no perfect answer to the conundrum. We need both the informed input of those who represent the regulatory bodies and the detached common sense of lay appointees, who will be there above all to represent the interests of patients and the public.
Perhaps the ideal formula would be for neither group to be able to force a majority. That would be a good discipline. If the council is to be worth anything, it should speak with a united voice and a voice of authority. It should consist—or be perceived as consisting—of two separate camps. If neither group was in the majority, all appointees would be bound to try to co-operate and work together by consensus. I wish that I had tabled an amendment to that effect. Perhaps the Minister would care to comment on the idea.
Lord Hunt of Kings Heath: The noble Baroness, Lady Northover, suggested that we were in a bit of a minefield on issues of representation of various regulatory bodies. She is right that the representation has historical roots. However, reopening that historic basis would be likely to lead to great problems between
the different professions and regulatory bodies. The regulatory bodies have accepted that this is a sensible way forward.We must also bear in mind that the health profession members of the council are there to perform a collective function. I revert to our earlier discussion on patients forums electing members to the boards of NHS trusts—which may be the route by which some members arrive at the table, and to which they will bring a great deal of public and patient experience. However, once they get to the table, they will have a collective responsibility. Surely the same applies to the health professional members of the council.
I think that rather than being seen to represent one sectional interest, the health profession members will bring an expertise in professional regulation in general. The council's work will not usually focus on a single profession but will instead consider the needs and problems applying to all professions. Where necessary, the council will be able to publish drafts for consultation, hold ad hoc meetings with interested parties and find other ways of obtaining the input of individual professions.
I tell the noble Baroness, Lady Northover, that the problem with accepting such an amendment is that it would risk damaging the spirit of co-operation that the regulated bodies have shown in welcoming the new council. Moreover, on a strict numbers case, it is probably the nurses and doctors who have a stronger argument than anyone. One thing that has struck me in all the discussions on changes to professional regulation which we have had with the professions in the past two or three years is that they have all accepted the need for a bit of give and take. In the interests of getting progress, movement and co-ordination, people have accepted that there will be discrepancies in relation to the membership of each council. I believe that the current proposal is the best way forward and that we would be opening a can of worms by reopening the whole question of representation and numbers. Ultimately, that would not lead to any improvement.
I also accept that Amendment No. 162 takes us back to our discussion on the previous group of amendments. This amendment would replace a majority of one for those representing the public with a majority for the professions. My argument has always been that we are trying to strike a balance between the necessity of professional self-regulation, the wider public interest and appropriate accountability to Parliament. The Government contend that, with professional self-regulation, the professions will have a majority on the regulated bodies. We have also already agreed the use of the affirmative resolution in terms of any directions made by the council. I think that there is a persuasive argument in favour of a narrow majority of one on the council in favour of the lay element.
I should also point out that those appointed will be chosen by the NHS Appointments Commission alongside the devolved administrations, who will appoint one member each. I also make it clear that the type of people whom we expect the Appointments
Commission to choose are those with experience who will be able to speak out for the patient and public interest in relation to the health service. We certainly do not expect the commission to choose, as was unkindly suggested, government stooges. The whole purpose of creating effective self-regulation is to ensure that the public interest is safeguarded. That is the case for a majority of one for lay people, who I believe will be of the highest calibre.
I tell the noble Earl, Lord Howe, that the regulated bodies themselves have not questioned being put in a minority of one on the council. Their concern was about the majority being appointed directly by the Government. However, that matter has already been dealt with by amendments in another place.
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