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8.01 pm

Earl Howe: My Lords, this has been a good debate. In the time available it is not possible to do more than skim the surface of some very important issues, although the noble Lord, Lord Turnberg, managed to do more than that. Most of us, I think, will have read the Government’s White Paper with a mixture of relief, acceptance and questioning: relief, because of what it might have said, but did not, especially in relation to undergraduate medical education; acceptance, because on the whole it appears carefully thought through; and questioning, because of the detail around some of the proposals, which is quite simply absent.

The really positive part of the White Paper is what it says about professionalism. Some feel that we are looking at the demise of professional self-regulation; I am not so gloomy. Certainly, with a 50:50 split of professional to lay members on the council, doctors will no longer hold sway over decision-making but, there again, nor will anyone else. As with so much in life, we are dealing here with public perceptions. That, I am afraid, is the answer to the BMA, which has questioned why members need to be appointed rather than elected and why it is necessary to have a separate adjudication body, given that already council members no longer sit on panels.

It is rather like the situation regarding the Food Standards Agency 10 years ago. There was nothing at all wrong with how MAFF dealt with food safety, but public perceptions were otherwise, and in terms of commanding public confidence the FSA has largely been a success. Indeed, that is what we have to remember throughout this debate: the system of medical regulation, if it is to work, has to command the confidence not only of the profession but also of patients and the public. The key thing for the profession is that the GMC should be independent of government, be in charge of setting professional standards, and be in control of training. All those things are retained under these proposals. But we need to ask what is next.

There is a whole lot here which is still a complete mystery. With revalidation, how on Earth can it be made to work fairly between different types of practitioner in different settings? How bureaucratic will it be? The

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concept of GMC affiliates is completely untried. We are looking at giving a lot of responsibility to single individuals; how can we make sure that the system is fair? The civil standard of proof and the sliding scale sound easy when they are explained, but how will that actually work in fitness to practise cases in a way that is just to patients and doctors and consistent between comparable cases? What appeal or redress will there be? These are some of the issues that will need working through in the next few months. I hope that the Minister can shed some light on them today.

8.04 pm

The Minister of State, Department of Health (Lord Hunt of Kings Heath): My Lords, this has been an excellent debate in which noble Lords have made some very telling points in a very limited time. I thank my noble friend Lord Turnberg and all other noble Lords who have spoken. I shall say more about how we intend to take the work forward, but this early opportunity for such an informed debate will be extremely valuable to me and my officials as we work through some of the details and answer some of the questions that noble Lords have raised tonight.

I commend the noble Lord, Lord Turnberg, for what he said about the common desire to raise standards and quality. I welcome his support for aspects of the White Paper and entirely endorse his comments and those of my noble friend Lady Jones of Whitchurch about the trust of patients in doctors. The noble Baroness, Lady O’Neill, is in the Chamber, although she has not spoken. When it comes to trust I think that one could do no better than to read her marvellous Reith lectures in that area. I have always taken that as a central foundation in the approach that we should take to the regulation of professionals.

We must also ensure, as the noble Earl, Lord Howe, said, that there is public confidence in the regulatory approach and the public can see that the regulatory approach is appropriate. The point that the noble Earl made about the Food Standards Agency is very telling; while there may be controversy about individual decisions made by the FSA from time to time, it has restored the public’s confidence in the regulatory approach to food. That is surely what we seek to do in taking forward the White Paper proposals.

I pay tribute to the current work of the regulatory bodies, on which my noble friend Lady Jones made some very important points. I am full of admiration for their work; I know the efforts that they put in to enhance credibility and the standard of their work and I pay tribute to the members of those regulatory bodies. I reiterate that point and respond particularly to the noble Earl, Lord Howe. I am very keen to ensure that healthcare professionals continue to be involved in professional regulation. I believe that over the past 100 to 150 years—and in the case of bodies such as the Royal College of Physicians and the Royal Colleges of surgeons, hundreds of years—they are the bodies that have been essentially responsible for upholding standards and enhancing the role of medical and health professionals.

I assure noble Lords that I want those professionals to continue to have ownership of that regulation in partnership with those members of the public who

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represent the public interest. But it is vital that we have the highest calibre of health professionals around the table of health regulators in future. Since it is my responsibility to take forward the White Paper, I fully intend to make sure that that happens.

I very much understand the comments of the noble Lord, Lord Walton, and my noble friend Lord Turnberg and their fears about over-regulation and bureaucracy. I, too, have read the report of the NHS Confederation and am ensuring that my officials work with that body so that we learn the lessons. I do not have time to talk about our more general proposals on regulation and pulling together some of the current regulators such as the Healthcare Commission and, in social care, the Mental Health Act Commission. I very much take the point that we must ensure that there is rigorous regulation for local NHS organisations which is not duplicated or overly bureaucratic. I am very much alive to the risks of bureaucracy in relation to the White Paper proposals; I shall want to prevent that. That is why the key reforms will be piloted in partnership with the professions and healthcare providers.

We want to ensure that proportionate action does not hamper patient care with heavy-handed bureaucratic regulation. I say to my noble friend that the regional medical regulation support team is not a formal regulatory function or a new layer of bureaucracy; it is about bringing together key individuals in the region concerned with maintaining high professional standards. It means that medical directors facing difficult cases—some medical directors may not have much experience with very difficult cases—can draw on local expertise to advise them. That is far from being bureaucratic; we hope that it will aid the speedy resolution of such cases.

The noble Baroness, Lady Murphy, mentioned the proportions “A third, a third, a third” in this context. That is a little harsh, although perhaps as politicians we would be prepared to accept that; I do not know. However, she is right: we want to get a balance between regulation, the development of the profession and standards. We want professional ownership in helping to develop those standards. That is what I want to see come out of this—the balance to which she referred.

The noble Baroness, Lady Barker, referred to disparate provision. I do not recognise that. If she is referring to a system where there are more diverse providers, then I recognise what she is saying. I agree with her that as we devolve more and more responsibility to a local level, both in providing and commissioning services, regulation is the method by which you ensure the consistency that she asked for. That is achieved partly through the professions’ individual regulatory bodies and partly through our proposals to have one regulator of services. I entirely agree with her about the end product of that regulatory action and that we need consistency of approach, not duplication and over bureaucracy. The noble Baroness raised the important issue of communication. She will know that in a few weeks’ time a local government Bill will arrive in your Lordships’ House. I understand that a number of noble Lords will take part in those discussions, which I very much welcome. She is right about communication.

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Dr Shipman was a much loved doctor, respected by his colleagues. Indeed, I believe that he was for some time secretary of the local medical committee. That shows some of the issues that have to be tackled. It is not just about the role of the GMC; it is about the role of a number of people and functions which we clearly need to improve. We will establish a national advisory group on regulation to help us tease out some of the answers to the questions noble Lords raised. It will be inclusive. I hope it will ensure that we get the proper balance that noble Lords require.

I understand the seriousness of the points that the noble Baroness, Lady Emerton, and the noble Lord, Lord Turnberg, made on the standard of proof, but moving to the civil standard of proof for all regulated bodies will ensure the consistency of approach that is required. I know that my noble friend Lord Turnberg is concerned about the use of the term “flexibility”, but the whole point about the civil standard of proof, which has worked perfectly satisfactorily in many cases, is that it can take account of the circumstances and gravity of individual cases. I am not aware that the regulatory bodies that use the civil standard have such problems. I suggest that there is an opportunity for all the regulatory bodies to come together to discuss this issue because there is current practice on the operation of the civil standard. Of course it must work fairly for professionals and patients. The noble Baroness, Lady Murphy, made very important points about the impact that the criminal standard has had on certain professionals who really ought not to be practising but, because of the standard of proof, have been allowed back into practice.

The noble Lord, Lord Patel, emphasised safety. As chair of the NPSA, he is in a very good position to do so. He emphasised the importance of revalidation, which allows health professionals to demonstrate that they remain up to date and fit to practise. That must be right. I very much sympathise with the relevant and important comments of the noble Baroness, Lady Murphy, on medical students. I am learning a lot about medical training as I consider the joys of the NMC. I say to the noble Lord, Lord Patel, that we shall look at how NHS appraisal systems can be developed to provide the GMC with the information that it requires.

My noble friend Lady Jones is right to say that the GMC has moved towards an internal separation of its investigation and adjudication functions. I pay tribute to the work that has been done and the impact it has had. But, rather as the noble Earl, Lord Howe, suggested, we feel that in order to meet some of the genuine criticisms that have been made, it is right that an independent body should adjudicate such matters. We are determined to follow that course.

The noble Lord, Lord Patel, raised some very interesting points on the creation of GMC affiliates, which I will ensure officials consider. We see great potential in affiliates. They will ensure that doctors working for the GMC in every part of the country are available to ensure that patients’ concerns are heard, investigated properly and tackled where necessary. For too long there has been a gap between what employers do locally to manage concerns about doctors and what

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the GMC can do nationally to address this. There is a great opportunity for early intervention. The benefit of early intervention is that in many cases problems can be nipped in the bud and dealt with rather than escalating and ending up at the GMC, perhaps many months later. Some cases ought to go to the GMC as quickly as possible but we know that in many cases the current system is simply too slow and inadequate to deal with problems when they first arise. Affiliates have a very important role to play.

The noble Baroness, Lady Emerton, raised an important point about forthcoming elections to some of the regulatory bodies. I understand the point and am considering what ought to happen in that case. There has been a warm welcome regarding the future appointment of members. I very much endorse the comments of the noble Lord, Lord Walton, about the need for independence in that process. I have no doubt that it is right that we have an independent process. Equally, we have to ensure that only the highest calibre people, whether professionals or lay people, are appointed. It is essential that the people around those regulatory tables command absolute confidence among professionals and the public.

I understand the issue that the noble Baroness, Lady Finlay, raised about recorded concerns. I should be very concerned about the practice of defensive medicine if what she mentioned were to happen, as clearly such practice is often not in the interests of the patients concerned. She has raised that point in previous debates on palliative care. I understand her points about fairness in the use of recorded concerns—getting the balance right between fairness to members of the public with legitimate concerns and fairness to the professional concerned. I shall ensure that her comments are fully considered in this work.

The noble Lord, Lord Colwyn, suggested four principles of regulation, with which I very much agree, and said that he did not want to see it fragmented. I also agree with him on that, although the argument for the independence of adjudication is very well made. I very much endorse ensuring consistency not just within a regulatory body but between regulatory bodies. I take his point about the importance of language. Clearly, we have to consider the issues of self-employed people. I gently point out to noble Lords that we are governed by European legislation in this area. I will not pretend that this is easy, but I accept that it is a very important challenge, which we must face up to.

I noted the comments about the Council for Healthcare Regulatory Excellence. It is appropriate for me to pay tribute to Jane Wesson, the chair of CHRE, who announced her resignation a few days ago. I do not want this to be a Big Brother agency; I do not want it to duplicate the work of the regulatory bodies. I want it to be there to provide strategic leadership and advice and to work well with the regulatory bodies.

This has been an excellent debate, and I thank all noble Lords for their very important points. I have no doubt that we will have a further opportunity to debate the issues, and I assure noble Lords that their comments will be fully taken into account in this work.

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Legal Services Bill [HL]

8.21 pm

Further consideration of amendments on Report resumed.

Clause 71 [“Licensable body”]:

The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland) moved Amendment No. 203:

Clause 71, page 40, line 35, leave out “an individual who is”

On Question, amendment agreed to.

Lord Hunt of Wirral moved Amendment No. 204:

Clause 71, page 40, line 38, at end insert—

“( ) A body is not a “licensable body” if it is regulated under section 9(A) of the Administration of Justice Act 1985.”

The noble Lord said: My Lords, the purpose of the amendment is to enable legal disciplinary practices that have a substantial majority of lawyers but which do not have external ownership and provide only the services that an ordinary solicitors’ firm can provide to be regulated under the Law Society’s mainstream regulatory amendments.

As the Minister will know well, I have on several occasions referred back to the excellent report by Sir David Clementi issued in December 2004. His review of the regulatory framework for legal services in England and Wales favoured a step-by-step approach, to which we have referred in previous debates. He ended up, in the final paragraph of his review—paragraph 104—by saying:

“The proposal of this Review is that attention should focus on the setting up of a new regulatory system for lawyers with the LSB at its centre, and the authorisation of LDPs”.

He continued:

“This would represent a major step towards MDPs, if at some subsequent juncture the regulatory authorities consider that sufficient safeguards could be put in place”.

That approach won the unanimous support of the Joint Committee, which I had the honour to chair. Legal disciplinary practices, as envisaged by Sir David Clementi, are practices that permit lawyers from different professional bodies to practise together as equals. He concluded in paragraph 1 that, so far as LDPs were concerned,

“non-lawyers should be permitted to be Managers of such practices, subject to the principle that lawyers should be in a majority by number in the management group. The non-lawyers would be there to enhance the services of the law practice, not to provide other services to the public”.

The amendments in the group are designed to simplify the operation of legal disciplinary practices. That is the whole purpose behind Amendment No. 204. Noble Lords will see that Amendments Nos. 498, 501 and 505 are grouped with this amendment. Amendment No. 498 inserts the provision that,

“at least three-quarters of the partners are authorised persons or are registered foreign lawyers”.

That is similar in terms to Amendments Nos. 501 and 505. Therefore, we very much follow Sir David Clementi’s views.

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The amendments do not refer to multidisciplinary practices or to firms that have external ownership. We are just dealing with the idea that there could be a legal disciplinary practice. In fact, the Law Society has supported legal disciplinary practice for many years. It is known in its terminology as “legal practice plus”. It is a means of ensuring that those who play a significant part in the running of a legal practice—for instance, a finance director—can be recognised with the status of a partner even if they are not a qualified lawyer.

Noble Lords will be aware of my registration of interest, in that I am a partner in the national commercial law firm of Beachcroft LLP, and next year I will have been a partner in that firm for 40 years.

Baroness Ashton of Upholland: You can’t be that old.

Lord Hunt of Wirral: My Lords, I hope that Hansard will record that comment.

Throughout that time, I have been aware that the status of a partner in a solicitor’s firm is something greatly to be envied by those who are not partners. It is a significant status symbol. It is tied up in the shadows of history that someone who is highly competent, who is an accountant and who is running the legal practice is not allowed to be a partner. Sir David Clementi saw that straightaway, and he thought, “Let us now recognise the status of these individuals as partners, even if they are not qualified lawyers”. Under the provisions in the Bill—the Government are to be commended for this, although I did not vote in the last Division—there is certainly scope for trying to evolve a system that will work.

It will now become possible for firms to make non-lawyers partners. But if that is to happen, suddenly the whole panoply of alternative business structures and their licensing regime comes into play. Therefore, the only way in which it will be possible for the finance director, or someone allied to that finance director, to become a partner is if the whole panoply, the separate ABS licensing regime, comes into force.

I have contended on several occasions, as the Minister will know, that we should not really have this enormous unnecessary, administrative, regulatory burden coming into effect for legal disciplinary practices. I can just see what will happen. The finance director will become a partner; immediately the firm has to become an alternative business structure, and one day the finance director will leave and immediately the poor firm, if it then has a lawyer taking on that position, will cease to qualify as an alternative business structure, when all that will have happened is that the finance director has been replaced by someone who does not fulfil the requirements of the ABS.

8.30 pm

Sir David Clementi’s analysis of the issues involved with the various forms of alternative business structures identified that significant additional considerations would arise with, for instance, external ownership. Also, if services were provided that could not be

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provided by an ordinary law firm, we would have to move step by step in the direction of alternative business structures. However, regarding LDPs that do not have external ownership, he made no sharp distinction between firms in which all the partners were qualified lawyers and firms in which a minority of the partners were non-lawyers.

I quote again from Sir David’s report. He said:

“LDPs are law practices which permit lawyers from different professional bodies, for example solicitors and barristers, to work together on an equal footing to provide legal services to third parties. They may permit others (e.g. HR professionals, accountants) to be Managers, but these others are there to enhance the services of the law practice, not to provide other services to the public”.

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