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Then a second decision would have to be reached to say that the measure had become inoperable and whether any financial consequences arose from that. However, they would have to be direct financial consequences necessarily and unavoidably incurred as a result of our withdrawal from the measure. The two examples I gave concerned where a software program could no longer be used because the UK’s withdrawal from it meant that it had to be completely rewritten, or if we withdrew from an agency where we had staff we should bear the costs of repatriating them, make any redundancy payments and so on because it was because of us that they were having to be removed from the agency.

They are the only two examples that I can think of and the only two examples that make sense to me. There may be other circumstances, but I hope that the noble Lord will be reassured by the fact that there were not lots of circumstances where I could see inoperability applying and financial consequences unavoidably occurring as a direct result of what the UK had done. Those words reassure me. I am not an optimist or a pessimist, but a realist. If you look at what has been agreed and test those words against our understanding of what it would mean; if you look long and hard at what the consequences could be and

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think of examples where it might apply; then you have reached a realistic assessment of what we believe to be the case. Our Committee in your Lordships’ House recognised that this was a strict threshold. I do not know what else I can add; nor should I take your Lordships’ time in seeking to flower this any further. The wording is clear. It sets out the conditions that would have to be met and that could be tested in court if need be. I hope that the noble Lord will withdraw his amendment.

Lord Hunt of Wirral: My Lords, I put to the Minister an extension of her examples of an IT package or the costs of our staff having to come home. As I said in opening, my worry is that, because we refuse to opt in to an amended measure, it might become inoperable and, as a consequence, the whole package would have to be discarded. In those circumstances, my fear is that there would be an argument that the costs of all the other participants should be billed to the United Kingdom, because it was our action that caused the whole package to be discarded. The Minister has not dealt with that. She referred merely to the cost of bringing home our own staff. I wonder about the costs of all the other nations that are then unable to take forward the package because we have caused the whole operation to be discontinued.

Baroness Ashton of Upholland: My Lords, if I could think of a realistic example, I would be more inclined to consider it. However, I cannot think of anything that operates across the European Union, either in an agency or in a programme, where our removal from it would result in all the other 26 nations failing to function at all. I can see that we might have to rewrite a software program or bring our people back because we have left an agency in which the other 26 countries were operating. However, with the best will in the world, I cannot think of an example in which, because the UK is not there, all the other 26 nations find themselves incapable of continuing with it. I hesitate to say this to the noble Lord, but I do not think that his proposition bears much scrutiny.

Lord Hunt of Wirral: My Lords, I respond first to the noble Lord, Lord Wallace of Saltaire, who used emotive language about “foreigners across the channel” and “not expecting our partners to double cross”. I do not want to share too much private information, but when I was in government, I found that it was my own side that caused me the greatest concern. I am reminded of Winston Churchill showing around the House of Commons a keen young Member of Parliament on his side, who exclaimed excitedly, “It is marvellous that we’re facing the enemy and staring them straight in the eye”. Winston Churchill allegedly said, “No, that is the Opposition. The enemy is behind you”.

Noble Lords: How true!

Lord Hunt of Wirral: My Lords, I have many friends in the European Union, but I would not expect them to draw back if I had sabotaged or caused the collapse of a particular programme. That is what I am referring

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to. As the noble Lord knows, I am a strong European. I came in because of the vision of Europe as a peaceful and prosperous method of ensuring the continuity of the European ideal. I am not talking about “double- cross” or “foreigners across the Channel”. I am talking about people who might have a claim against us, because we had originally thought we might participate and then decided for various reasons not to. I recall that the biggest problem that I had was often with the Treasury, which, after I agreed to take forward a reform, would suddenly remove the funding. It is not beyond the bounds of possibility that we go quite a long way in a particular direction, only to find that we do not have the funding or the support of some of our colleagues.

I hope that I have reassured the noble Lord that I am looking at the worst-case scenario—this is what he acknowledged I was doing. He called it a belt and braces amendment. Belts and braces can be very useful, although perhaps only when one is a little larger than he and I are. I say to the Minister that I would love her—here I must not be quoted out of context—to go away and think through the sort of consequence that I am talking about, where the software system, as a result of our refusal to participate, is thrown into jeopardy. It may be that it was our own system that we were going to take through into the scheme. I would be reassured if she would think this through and reassure me, perhaps at Third Reading—

Baroness Ashton of Upholland: My Lords, as Leader of the House, I am very clear that we should use Third Reading for the purposes detailed in the Companion. I have nothing further to say to the noble Lord on this. If he disagrees with me, he will decide whether to seek the opinion of the House. However, I thought long and hard about all the other possible scenarios and came up with none that I felt was of any merit. The noble Lord gave an extreme example that I do not believe exists in real life. The language of the treaty is clear. The noble Lord must decide. We have debated this twice and if he wishes to test the opinion of the House, that is for him. However, I do not believe that it is an appropriate matter to bring back at Third Reading.

Lord Hunt of Wirral: My Lords, that was more said apropos the Companion than to take forward the discussion. I remind the Minister that this amendment would not operate until Her Majesty’s Government had decided to pay a penalty. The amendment merely says that, before paying any penalty, there should be an opportunity for Parliament to see what the agreed penalty is and why it should be paid. That is the purpose of the amendment and all that I am constantly seeking are ways of discovering whether this has been tested by the Minister’s colleagues in government to see what possible scenarios there could be where Her Majesty’s Government would have to pay.

Baroness Ashton of Upholland: My Lords, I am grateful to the noble Lord, because I sat down too early and did not get to the nub of the amendment. Of course, were we to be at the point where there was any

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suggestion that the inoperability of a programme led to financial consequences, that would, first, be part of any discussion that we would have with the Select Committee and, secondly, we would make sure that Parliament was informed. That would be the natural course of events. There is no need for an amendment telling us to do that because, as part of the general scrutiny by Parliament, in your Lordships’ House and another place, that information would be made available. I have no difficulty with that so the amendment is unnecessary. I was merely saying that I have nothing to add and that I do not want to waste your Lordships’ time.

Lord Hunt of Wirral: My Lords, that has been a most valuable undertaking by the Minister. I am grateful to her for going as far as she has, which is, I am sure, well beyond what her brief instructed her to say. In view of the fact that she has been so helpful, I have no alternative but to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bach: My Lords, I beg to move that consideration on Report be now adjourned. In moving the Motion, I suggest that Report begin again not before 8.29 pm.

Moved accordingly and, on Question, Motion agreed to.

Nursing and Midwifery (Amendment) Order 2008

7.30 pm

Baroness Thornton rose to move, That the draft order laid before the House on 22 April be approved.

The noble Baroness said: My Lords, this draft order is the first in a planned series of affirmative resolution orders that will be brought before this House as part of the implementation of the White Paper Trust, Assurance and Safety. The aim of the reforms is to enhance public confidence in the ability of the healthcare regulatory bodies such as the Nursing and Midwifery Council to protect the public interest and deal with poor professional standards.

Public concern has been highlighted by a number of high-profile cases, such as those involving Dr Shipman and the nurse Beverly Allitt. Those cases led to a number of detailed inquiries—including the Shipman inquiry led by Dame Janet Smith—that have made a number of far-reaching recommendations. The order is part of the process of implementing those recommendations. It makes various amendments to the framework legislation for the regulation of nurses and midwives—the Nursing and Midwifery Order 2001.

The main changes relate to the governance arrangements of the NMC. They include moving the NMC from a partially elected to a fully appointed council, in response to the recommendation from Dame Janet Smith that professional interests should not unduly influence council members. Members are to be appointed by the independent Appointments Commission against specified skills and competencies. There will be provision for a separate constitution order to specify

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the numbers of lay and professional members and their terms of office, and there will be provisions with respect to the suspension and removal of members. We expect that the NMC will have seven registrant and seven lay members, making it smaller, more board-like and more strategy-focused.

There will be changes to the provisions relating to the NMC’s committee structure to make them less prescriptive. The changes were originally included in the Health Care and Associated Professions (Miscellaneous Amendments) Order, which was published for consultation on 22 November last year. In its response to that consultation, the NMC raised concerns about the timescale for making the changes, in particular about the difficulties for it if it needed to hold elections to its council in 2008. Each year, a quarter of the elected representatives on the council come up for re-election. The NMC asked if its provisions in the draft order could be brought forward in a separate order in time to avoid this summer’s elections, hence this order standing separately from the other orders, which are still to come.

The Government have similarly responded to requests to avoid elections made last year by the General Medical Council and the General Dental Council. We recognise that the cost and disruption of holding an election for council members who will serve at most one year of a four-year term would not be sensible. The order therefore includes provisions to cancel the elections that were due this year, which were for the elected representatives on the council in the English national constituency.

The order also makes a number of other miscellaneous amendments. Those worth noting in particular include the following. For the first time, the council’s annual report will have to include a description of the arrangements that the council has put in place to ensure that it adheres to good practice in relation to equality and diversity. The NMC will be able to give enhanced prescribing rights to more of its registrants in an emergency such as pandemic flu. The NMC will be able to strike off registrants who are barred from working with children or vulnerable adults when the new independent barring board is established. All those measures are supported by the NMC. I commend the order to the House. I beg to move.

Moved, That the draft order laid before the House on 22 April be approved. 17th Report from the Joint Committee on Statutory Instruments.—(Baroness Thornton.)

Baroness Hanham: My Lords, I apologise to the Minister. The clock ticked over on the second floor before I had a chance to get down to the Chamber. I heard most of what she said. I have read the order and the instructions that go with it, and I thank her for that explanation.

This is another one of those occasions when one says, “Oh no, not another reorganisation”. The impact of what is being proposed is far-reaching, and perhaps more far-reaching than one would think at first sight. To restructure the supervising body of any profession is not to be undertaken lightly. One might start by

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asking the Minister about the reconstitution of the council into a body of appointed members rather than elected members. I do not know whether this is in any way unique, but it seems to me that it is unusual for the Appointments Commission to be in a position of appointing professional people. My first question is, in terms of those who will be appointed, will the Appointments Commission use senior royal college members to act as adjudicators or judges of who is going to go forward? Who will it get to help with those appointments? Lay members are easier to appoint, because they have a completely different role to play, but professional members have a specific role. They will need to be people of the utmost quality. That needs to be carefully guarded.

The other thing that struck me was the constitution. I understand that will be covered by yet another order, and I presume that it will be drawn up only after the new body has been formed; or is it to be formed now in conjunction with the current Nursing and Midwifery Council, before it is abolished? Which comes first the chicken or the egg, in terms of the constitution?

I know that the Royal College of Midwives has had concerns about the cancellation of the elections this year for England. I am now less concerned. I understand that it has an issue with that, but it seems to me that if you are going to make a change as major as this, you will want to put new people in place as soon as you can.

I know that this is tied up with civil contingencies and all the problems associated with emergencies, but I found it rather odd to be picking out not-quite-registered members of the profession to be identified as being able to order drugs, or whatever was required. If we have an emergency such as a pandemic, it will require more than a few unregistered midwives to help with that. I suppose that other people will be used. Otherwise, this will be a strange and rather small addition to what has been proposed. My concerns are mostly about the appointment of the professional members and who will be appointing them. I would like to know a little bit more about those who will be involved if the emergency contingency was to happen—I hope that it never will.

Baroness Tonge: My Lords, I, too, apologise for my rather breathless arrival in the Chamber; I had not realised that we had such a speedy Minister. The present situation is clearly unsatisfactory. I think that everyone agrees that 12 elected nurses and 11 lay members have proved to be a very cumbersome NMC. I think that there is general agreement that it should be reformed, and the Royal College of Nursing is very supportive of that. I have a few comments and questions.

First, a general comment: why does the new council have to be entirely appointed? I am seriously worried that everything in this country is run by quangos that have members appointed by the Appointments Commission overseen by the Privy Council, which is presumably overseen by the Government. I think I said a few weeks ago that the health service is a rather Stalinist organisation. It feels like that when everything is appointed and there is no element of election or the professions being able to choose their own representatives.

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I share the reservations of the noble Baroness on the Conservative Benches but urge the Government to take heed of this warning. We must not have an all-appointed country. They are keen on talking about devolving responsibility and power downwards yet they devolve that responsibility to bodies that have been appointed by themselves, directly or indirectly. That concerns me.

Secondly, there will be seven professional members on the new NMC. Will the Government ensure that there are general nurses, midwives and perhaps community nurses represented on the NMC? Community and district nurses in particular are going to be extremely valuable in the health service in the years to come because patients are admitted to hospital for a much shorter period. They should get representation on the NMC.

I have some concern about stopping the elections. It may be two or three years before the new council comes into being. Again, my democratic soul rankles at the fact that elections will be stopped. If we decided to change the way we elected our MPs, would you really tell all the MPs that they could stay on for a couple of years or so until the new system came in? I think not. It is better to have people elected even if only for a short time before the new arrangements come into play.

There is a valid concern from the midwives, too—that they may lose the Midwifery Committee, one of the four statutory committees that exist at the moment. How will the council consult midwives if the committee goes? The midwives are hugely important. Let us face it: they are the branch of nursing that brings the next generation into the world. There could not be a more important group. They really must be consulted by the NMC. I hope the Minister will tell us that there will still be a Midwifery Committee.

I welcome the provision for the NMC to make temporary changes to register nurses in emergency situations. Nurses are extremely well qualified and talented people, capable of all sorts of duties that at the moment they are not allowed to perform. I do not have many reservations about that; it is an excellent thing. Should a national emergency occur, there should be this immediate upgrading to do jobs that are needed in the community.

On the whole I welcome the revision of the NMC but hope I can have some assurances on the points I have raised.

Baroness Thornton: My Lords, I apologise to both noble Baronesses for the precipitate way in which we started; they should regard it as a bit of cardiac exercise—it is good to run every day. If I answer their specific questions, I hope I will be able to help on all points.

How will the Appointments Commission appoint professional members? It will be appointing against standards which will be agreed with the body itself. On the issue raised by the noble Baroness, Lady Tonge, about elections and appointments, she will have heard me say in the recent Grand Committee on the Health and Social Care Bill that this is a regulatory body

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being established which is about safeguarding patients and standards. It is not a trade union or trade organisation. That is why they are appointed. The Appointments Commission would take great exception to the suggestion that they are a government body. They are not; they are the independent Appointments Commission and they will make these appointments.

Baroness Tonge: Am I right in thinking, though, that the members of the Appointments Commission are appointed by the Government?

7.45 pm

Baroness Thornton: I am not absolutely certain about that and would need to write to the noble Baroness about it. I think there is an interim process. The Appointments Commission is an independent organisation. It was appointed to advise the Government and other bodies about making appointments.

The NMC will move to a fully appointed council to ensure that professional interests do not unduly influence council members. That is in response to recommendations from Dame Janet Smith. As I have said, the new council members will be appointed by the independent Appointments Commission against specific criteria relating to their skills and expertise. It is intended and expected that all the different elements that make up the current NMC will be represented on that body. That is absolutely clear.

On timing, the order will be made before the old council is abolished. We are discussing the proposed constitution with the NMC but it will not be two years; it will be much sooner than that—it may be April of next year or even sooner.

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