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Independent statutory regulation of practitioners, including psychologists, is very important to protect members of the public. Regulators should be independent of the Government and the professions that they

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regulate, so that they can make and be seen to make—that is very important—appropriate decisions in the public interest. For these reasons, regulators have been going through extensive processes to make their structures and governance more responsive to patients and the public. The HPC itself has been going through such processes. Subject to the order being confirmed tonight, I understand that the HPC intends to open registration on 1 July. CHRE welcomes this and believes that it will be welcomed also by patients and the public.

Viscount Eccles: My Lords, as a member of the Merits of Statutory Instruments Committee, let me say that there are some technical deficiencies in the order. I will not concentrate on those tonight, although I will refer to one or two.

I am not as sanguine as my noble friend Lord Howe is about the benefits of statutory regulation and would like to emphasise what the noble Baroness, Lady Pitkeathley, said about independence. The great problem with all systems of statutory regulation that I have been involved with is that it is very difficult to believe that you have the independence that you were promised. I have debated the independence of public bodies a number of times in this House and usually I have been disappointed.

On this occasion, deep within the 51 pages of the order, we come upon Schedule 4, which consists of three and a half pages of amendments to legislation to bring seven categories of “protected title” psychologists under statutory regulation by the Health Professions Council, thus splitting the British Psychological Society down the middle, as its members have testified and as we have been told tonight.

The statutory regulation of psychologists takes us on to new ground. It is a most significant proposal. Why is it before us? Relying on material put before the Merits Committee, and I hope not being too unkind, I think that the purpose is allegedly to modernise. This is the first new Labour mantra prayed in aid. There are two more: patient safety and public confidence. The problem is that no evidence is produced and no argument made, in the explanation of this order, that the modernisation will improve patient safety or public confidence. It is taken as a given. Nor is any argument made that either patient safety or public confidence is a problem when it comes to psychological practice. The regulatory impact assessment simply states that government intervention is necessary. “Necessary” is a strong word. We are not told why, but I think that we know why: it is an a priori judgment by the Government. As we know, new Labour has a strong preference for Secretary of State-controlled statutory regulation.

What results from this state-controlled mechanical agenda is an increase from 134 HPC malpractice allegations in 2003-04 to three times that number in 2007-08, against a 30 per cent—less than one-third—increase in practitioners regulated under the 13 present headings. Psychologists will take the HPC on to new ground: matters of the mind. The attempt to codify and define will open the door to a rapid rise in imaginative allegations. One needs only to look at the prescriptive detail that the HPC thinks is appropriate for psychological qualification. Does the Minister really

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believe that a rising tide of allegations is, or ever will be, a good indicator of patient safety or public confidence?

There is also the dilemma of the consultation already referred to by my noble friend on the Front Bench. Why is it that many deeply held convictions of professionals were not expressed in the Government’s record of the consultation, when the Merits Committee, unusually, received many well argued representations that statutory regulation will not benefit the public? Nothing in the Explanatory Memorandum or the regulatory impact assessment implies any controversy, yet there is plenty about.

Why the gap in perception? First, it is the centralised, all-powerful NHS effect—the fear of being on the wrong side of a controlling Government who hold many of the purse strings. The loss of employment can turn people into collaborators. Secondly, the consultation questions make it clear that statutory regulation will happen. They ask nothing about patient safety or about public confidence, present or prospective. The heart of the matter is left as an unarguable tautology: modernisation is by its very nature good.

Finally, there will be additional costs, recoverable, no doubt, through fees. The HPC’s costs have been rising sharply and it has had to take a significant property impairment charge. This all looks pretty amateur to this old servant of the public. Any rise in costs is to be doubly deprecated in today’s circumstances. We are probably stuck with the order, or at least the psychological part of it, but it should be the last with “psy” in the title.

Baroness Thornton: My Lords, I thank noble Lords for their perceptive and interesting questions and my noble friend Lady Pitkeathley for her wise words.

Perhaps I should start with the speech of the noble Viscount, Lord Eccles. At no point have I used the word “modernise”; at no point have I used the word “codifying”. The Government are not intervening for the sake of it, but to ensure patient safety and higher standards. The figures that I shall cite later show that the vast majority of psychologists support this move. The figures speak for themselves. The noble Viscount would have patients take their chances with anyone who cared to call himself a psychologist, dentist, chiropodist or whatever, but his party would be the first to scream when anyone came to harm.

The noble Earl and the noble Lord, Lord Alderdice, are much more experienced than I in dealing with this issue, as both of them observed. In the noble Lord’s Private Member’s Bill of 2001, his views were supported by the noble Earl. The work that has been done has no doubt proved helpful in clarifying thinking about how psychologists should be regulated, what standards should be used and the role of professional bodies in that regulation. I take on board the point that the noble Lord, Lord Alderdice, made about the time that this has taken. I agree with him; he has a very good point there; there is no doubt about that.

The noble Earl said that the road down which we are now starting with the regulation of psychologists may lead to the standardisation of talking therapies. That is a legitimate question, but there is no evidence that regulation in other areas has stultified the work of those professions. In this profession, which is based on

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talking, it is even less likely that that will be the case. To deal with the specific question raised by the noble Earl and the noble Lord, Lord Alderdice—why did we in the end reject the idea of a psychological therapists council?—both noble Lords gave the answer themselves. In the 2007 White Paper we set out a policy of no new regulators. No one to date has persuaded us to the contrary. The HPC has a very good record as a professional regulator.

Lord Alderdice: My Lords, with the exception, apparently, of the pharmacists.

Baroness Thornton: My Lords, I am coming to them. As my noble friend Lady Pitkeathley pointed out, a recent report on the HPC pointed that out.

The noble Earl raised the issue of state rigidity in regulation. Psychologists and psychotherapists indeed work with vulnerable people, both adults and children, often in one-to-one situations. What they do carries significant risk to patients and to the public if it is poorly done. Although we do not want to set and impose rigid demands on the professions, it is important that standards are set that protect the public.

Is this a forerunner to an inevitable sequel for psychotherapists and counsellors? As I said in my opening remarks, there will be a statutory period of consultation before any further orders are laid. Legislation is not inevitable—although we currently agree with noble Lords that it is desirable.

I turn to the Health Professions Council. It has a good track record in regulating a wide range of professions, many of which work in non-health settings in schools, prisons, industry and private practice. It uses the members of the professions that it regulates to provide professional expertise in regulatory functions such as the setting and approval of education and training. It makes every sense that it does that. Why would it not? It uses them in setting professional practice standards and assessing practitioners’ fitness to practise.

We have consulted widely on the proposal to regulate psychologists under the Health Professions Council in both the 2005 and 2007-08 consultations. There was strong support for the regulation of psychologists through the HPC. I know that people have raised questions about the consultation, but 89 per cent supported statutory regulation of practitioner psychologists; 70 per cent agreed that psychologists and teachers working exclusively in further psychological knowledge should not be regulated; 60 per cent agreed that all seven domains should be statutorily registered by the HPC; and 60 per cent agreed that holders of BPS practising certificates who do not meet the full range of competencies for the seven domains should be eligible for registration only if they demonstrate that they meet HPC standards for safe and effective practice.

The noble Earl raised the issue of threshold entry to the profession. That is a matter for the HPC to determine. It has recently publicly consulted on the threshold of entry and standards of proficiency. The outcome of the consultation will be considered at the HPC education committee meeting in May. The BPS will have been invited to respond as part of a

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statutory duty to consult stakeholders, so it will have had the opportunity to make representations on the issue. My honourable friend in another place has answered the letter raising the issue and clarified that with the BPS.

The noble Earl also raised the issue of whether statutory regulation would narrow treatment options for patients. A balance must be struck between protecting people from misconduct and allowing creative new approaches to treatment, and we believe that the HPC can strike that balance. We are confident that it will respond sensitively to issues of well-being and, as the noble Earl put it, the art of talking therapies as much as their profession.

The noble Lord, Lord Alderdice, asked about Northern Ireland and pharmacy technicians being regulated on a GB basis but psychologists on a UK basis. As the noble Lord said that he knew that I would say, the regulation of health professions is a devolved matter in Northern Ireland. On this issue, we have simply followed the wishes of the devolved Administration. They expressed their wish not to regulate pharmacy technicians in the legislation. The General Pharmaceutical Council is taking over existing arrangements of statutory regulation by the Royal Pharmaceutical Society. We do not believe that there needs to be a new body for newly regulated professions; the new regulation should be taken on by existing bodies—generally, the HPC.

The noble Lord and the noble Earl raised the issue of splitting professionals and asked why we were not regulating the academics. We do not believe that this is splitting the profession because the profession will still exist. What we do believe is that we should regulate only in a way that is proportionate to the risk presented to the public. Academics are engaged in research and do not present the same risks that practitioners treating individuals do. I have no doubt at all that the profession will regard itself as a profession and will continue to discuss its issues on that basis.

The noble Lord also raised the question of why we were doing away with elections for professional members. We have discussed that issue in your Lordships’ House on many occasions. The council must be one that can provide effective leadership to the regulators’ work, and one which can fully engage with the profession and the public interest, as well as the NHS and the private sector and employer interest. By creating a system of independent appointments, the public and professions can be assured that people are being appointed because of their abilities, their track record, their achievements and their commitment to patient safety. In other words, they are not there as trade representatives; the registrants who have these qualities will be able to apply through a transparent process, and will not subject themselves to an election.

Finally, the noble Lord asked what might happen in the future. The only thing I would say is that, if his own party wishes to influence the policy of the Conservative Party, he probably needs to have that discussion elsewhere. I beg to move.

Motion agreed.

8.20 pm.

Sitting suspended.

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Marine and Coastal Access Bill [HL]

Copy of Bill
Explanatory Notes
1st Report Delegated Powers Committee
1st Report Constitution Committee
11th Report Joint Committee Human Rights

Report (1st Day) (Continued)

8.30 pm

Amendment 62

Moved by Baroness Hamwee

62: After Clause 45, insert the following new Clause—

“Suspension pending review

(1) This section applies if a policy authority thinks that the condition in subsection (2) or (3) is met.

(2) The condition is that—

(a) since the time when an MPS was first published or (if later) last reviewed, there has been a significant change in any circumstances on the basis of which any of the policy set out in the MPS was decided;

(b) the change was not anticipated at that time; and

(c) if the change had been anticipated at that time, any of the policy set out in the MPS would have been materially different.

(3) The condition is that—

(a) since the time when part of an MPS (“the relevant part”) was first published or (if later) last reviewed, there has been a significant change in any circumstances on the basis of which any of the policy set out in the relevant part was decided;

(b) the change was not anticipated at the time; and

(c) if the change had been anticipated at that time, any of the policy set out in the relevant part would have been materially different.

(4) In the case of an MPS prepared by the Secretary of State acting alone, the Secretary of State, or in any other case the policy authorities in question, may suspend the operation of all or any part of the MPS until a review of the statement or the relevant part has been completed.

(5) In the event of suspension under subsection (4) the designation of an MPS of the statement or (as the case may be) the part of the statement that has been suspended is treated as having been withdrawn and the provisions of section 46 shall apply.”

Baroness Hamwee: My Lords, in moving Amendment 62, I shall also speak to Amendments 74, 75, 81, 87 and 88.

The first of these amendments is similar to an amendment to which I spoke in Committee, so I will not explain the detail of the clause, but I will say, as I said then, that it is lifted from Section 11 of the Planning Act, which provides for a suspension of the policy statement in the event of an unanticipated change in circumstances.

In Committee, the noble Lord, Lord Davies of Oldham, said that there was a distinction between the marine policy statement and the national policy statements in that national policy statements are to be used primarily by a single body, the IPC indeed, primarily, but not exclusively, in decisions on a small number of projects. I accept the differences in those circumstances, but it is important to have a mechanism for suspension as well as for review, so I could not resist putting down Amendments 62 and 81, which would apply to marine plans in order to cover—I am sorry, but no pun is intended here—all the ground.

In Committee, the Minister was rightly concerned about certainty for everyone who is involved in the

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process, including applicants, and in terrestrial planning. We have always acknowledged that that is important, but should certainty prevail if it is the wrong certainty—in other words, if circumstances have changed and made it the wrong certainty?

My Amendments 74, 75, 87 and 88 are about the criteria that apply to decisions; criteria for departing from a policy. We debated at some length “material considerations”—the term that is used in terrestrial planning—and I am grateful for the Minister’s letter, which I received after Committee and which deals with what the Government consider to be an equivalent provision: “relevant considerations” the term that is used in the Bill.

I appreciate that there will be guidance, as the Minister’s letter was careful to explain, on what the relevant considerations will be and which considerations should or should not be regarded as relevant. Guidance cannot alter primary legislation, however, so my concern that something that can be relevant but not significant has not been allayed.

The Minister’s letter says that the context would make matters clear, and goes on:

“I believe that it is clear from the drafting that insignificant or trivial matters will not be sufficient to override the general principle of decisions being taken ‘in accordance with’ the MPS/plan: the considerations before the decision-maker must actively indicate that the decision should not be taken in accordance with the plan. I would not consider it sufficient simply to say, for example, that there was ‘another option available’”.

I think that was dealing with some of the drafting in my amendment in Committee. He said:

“The guidance we produce will obviously make this very clear”.

I am not reassured by that; Clause 49(5) requires “conformity”, which I assume is general and not a strict conformity. How, therefore, can guidance shift the emphasis as he suggests?

I thought that the next paragraph of his letter rather made my point for me. It said:

“We will aim as far as possible to give an indication in that guidance of the relative weight that should be given to different kinds of considerations. However, as the debate recognised, this will not always be possible because the ‘relevance’ and significance of different considerations will depend to a large extent on the decision in question, the site affected, and the potential impact of the ‘relevant consideration’ on both the project in question and the future possibility of achieving the plan’s objectives. The consequences of the departure from the plan will also need to be borne in mind as a ‘relevant consideration’ in their own right”.

He ended by referring to having enough “flexibility” for the real world. I want that too, but not so much flexibility that we lose the prize of certainty. I remain concerned that there will be too much reliance on guidance getting it right when, if there is a crunch, reference will be made to the primary legislation. Guidance will be referred to, but will not override what is said in what will be the Marine and Coastal Access Act. I beg to move.

Earl Cathcart: My Lords, I have some sympathy with Amendment 62, proposed by the noble Baroness. If something in the marine policy statement is going to lead to bad decisions, and if that is then recognised, as things stand the mechanism is that there will be a

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review to try and update it. I think that this amendment is trying to say, “All applications must be suspended until we’ve got this right. Because we don’t want the applications in the pipeline to be based on those bad decisions, let’s suspend part or all of the MPS until the review has taken place and the right framework is put in place”. I support this amendment; there has to be some sort of mechanism for getting this right, either in the Bill or within guidance. I will be interested to know how the Minister proposes to deal with this.

The Minister of State, Department of Energy and Climate Change & Department for Environment, Food and Rural Affairs (Lord Hunt of Kings Heath): My Lords, as the noble Baroness and the noble Earl have suggested, this group of amendments covers two interrelated issues. First, it covers the test for when a marine plan need not be in conformity with a marine policy statement or a decision may be taken other than in accordance with the MPS or a marine plan. There is also the question of suspending the MPS or plan while it is reviewed. I recognise that we debated these matters in Committee; I shall deal first with Amendments 62 and 81, which would introduce new powers to suspend the operation of all or part of the MPS or a plan while it is reviewed.

The noble Lords have again raised a question that we discussed in Committee, of the contrast between how this is dealt with in the context of national policy statements under the Planning Act, and how we would deal with these matters under the MPS or plans. I know the noble Baroness thinks that, under the MPS, we ought to have the power of suspension in the circumstances that she and the noble Earl have described.

Our problem is the impact and the number of public authorities and decision-makers which would be affected by a suspension of the MPS or marine plan. We think that it would be vast in comparison with the effect on the IPC, a single body, of suspending a national policy statement. Our worry is that it would be unreasonable to expect such a wide range of public authorities, including local authorities, coastal regulators, enforcement bodies and others, to keep a constant check on which parts of a plan or policy statement were in effect at any given time. We do not accept that it is necessary formally to suspend part of a policy statement or plan in order to review or amend it, even if, as the noble Earl, Lord Cathcart, has suggested, we are aware that it has shortcomings.

In that situation, we would expect the policy authority or marine plan authority to make it known to the relevant decision-makers that their policy on a certain matter had moved on or was being reviewed. This would constitute a relevant consideration for decision-makers and marine users without the need to suspend any part of the document. It also places the emphasis on the policy or plan authority to ensure that affected decision-makers are aware, rather than expect all decision-makers to keep constant vigilance.

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