Clause 3 - Directions: distribution of functions
NHS Reform and Health Care Professions Bill
3:35 pm
Mr Simon Burns (West Chelmsford, Conservative)
I beg to move amendment No. 123 in page 3, line 31, at end insert—
'(6) No functions shall be distributed to or exercisable by a Primary Care Trust unless the Secretary of State has laid before each House of Parliament a statement to the effect that such Primary Care Trust is ready, willing and able to receive and exercise such functions.'.
I will try not to give this debate an air of de''ja vu by referring to an earlier debate. This deals with the question of whether the negative or affirmative resolution is used to approve the secondary legislation that fleshes out some of the powers given to the Secretary of State to enact the Bill.
Clause 3 gives the powers for the transfer of functions to the strategic health authorities and PCTs to carry out their newly defined duties under the Bill. We must also bear in mind the contents of schedule 2. Not only does the clause give the Secretary of State the powers to delegate directly to PCTs the exercise of any functions conferred on him by health authorities, including things like providing hospital accommodation, but there is a range of duties and
functions in schedule 2 that will be carried out under the powers contained in the clause. All hon. Members will accept that this is an extremely important part of the Bill, because it provides the powers to ensure that the Bill fulfils its objectives and that the relevant bodies and organisations have the statutory basis to carry out their duties.
Those powers are given through secondary legislation, which again is carried out by negative procedures. My hon. Friends and I would argue that given the significance of the powers in this clause, the negative procedure is just not the right way to proceed. In an earlier debate on a similar clause with regulation-making powers, we pointed out that just over 2,000 statutory instruments laid before Parliament in the last Session required the negative procedures. The vast majority of them never had the opportunity to be debated in the House or another place. From memory, I think that about 30 statutory instruments subject to the negative procedure were debated in the House.
If one looks at the situation in the context of the proper monitoring and holding to account of legislation, I hope that the Minister will agree that it is unsatisfactory to use secondary legislation to enact parts of primary legislation that has been studied line by line in Committees such as this. The same argument applies as before. When the Minister was in opposition, in Committee after Committee on Bill after Bill, he and his shadow ministerial colleagues clamoured for more Government accountability to Parliament on significant pieces of secondary legislation. It was unacceptable that they should slip through almost on the nod by the negative procedure. Ten years ago, the Minister would have agreed 100 per cent. with every word that I am saying, but life has moved on and things have changed. He now has the responsibilities and I do not, so the arguments that Labour Members and possibly the Minister made in Committee at the time are no longer regarded as valid.
We cannot remain in a time warp. One should always be sufficiently intellectually alert to challenge perceived views when life moves on, and this is one of those times. I hope that the Minister agrees that the powers in the clause are crucial and warrant a more careful study by Parliament before being enacted. That could be done only by changing the negative procedure envisaged by Ministers into the affirmative procedure, so that we and another place have an opportunity to study what the Government are proposing and to ensure that they have got it right.
Even though a statutory instrument cannot be amended, it can be withdrawn if it is shown that there are significant flaws in any of its proposals, and it can be redrafted. However, we have the opportunity to prevent potential pitfalls only if we have a debate in a Committee, so that we can study the statutory instrument. If the negative procedure applies, according to the law of averages the past figures that I have quoted show that the chances of having a debate are negligible.
The Minister would be in an unenviable position if a statutory instrument gave the Government the powers to bring in the provisions, and a glaring error
or fatal flaw in the proposals was suddenly discovered afterwards. If the amendment were accepted, this Minister in particular would be more than anxious to thank me for helping him to avoid that pitfall and the tarnishing of the justifiable and reasonable reputation that he enjoys as a Minister of State in the Department of Health.
With the intellectual power of persuasion and a little flattery, I hope that the Minister will be reasonable enough to agree that my case for the amendment is overwhelming. In the long run, it would help him to avoid any pitfalls that parliamentary draftsmen, civil servants or Ministers looking through their boxes late at night had missed. I hope that for the common good and to avoid mistakes being found when it is too late, he will accept the amendment.