Clause 25 - Regulatory bodies and the Council
NHS Reform and Health Care Professions Bill
5:30 pm
Mr John Hutton (Minister of State, Department of Health; Barrow and Furness, Labour)
There has never been a scenario such as that which the hon. Gentleman is countenancing. He is not a member of the Privy Council so he has not had the experience of seeing what happens. What happens is truly weird—I will not go into that because I would be out of order.
The Privy Council acts, and reaches its decisions, on the advice of Ministers. It is possible that a dispute could be resolved in that way. There may be arguments and different views, but the Privy Council acts on the advice of Ministers so it would be a mistake to assume that everything will be decided in accordance with the work that the hon. Gentleman described—it may not
be so decided. We are now talking in the language of hypotheticals. However, the constitutional position is clear: the Privy Council will decide whether to approve the recommendation of a rule change that arrives from a regulatory body, even when it is acting under a direction received from the UK council.
That may have been a rather tortuous constitutional seminar, but it describes the position. It is a mistake to construe 25(2) as giving a direct power to the council to change the rules of a regulatory body. We have come to the view that the council should have the statutory power to require a change because we want the council to be an effective body, not an overbearing one. Professor Kennedy had no doubt that the council should have powers to ensure that it was able to carry out its functions effectively. He says:
''We believe that the Council should have statutory powers to require the various bodies to act in the interests of patients and conform to principles of good regulation.''
I well understand the argument of the hon. Member for Oxford, West and Abingdon and others that simply because Professor Kennedy has expressed a view does not mean that we must accept it—of course we should not. However, he has given us a convincing argument. I say that not to give the UK council the powers of the Nazi stormtroopers, but to reserve a baseline power so that public interest is served. The amendment tabled by the hon. Member for North-East Hertfordshire would not give us the opportunity to ensure that change was effected.
In the Government amendments, I have tried to make it clear that the Secretary of State will be able to make regulations about the procedure to be followed when the council directs the regulatory body to make a rule change. Government amendment No. 248 sets out what the regulations must cover and specifies that the process must include a period of consultation. According to any principle of fair play and even-handedness, it would be inconceivable not to have consultation preceding a council's final decision on whether it wanted to exercise its powers.
The hon. Member for Oxford, West and Abingdon made the good debating point that the amendment was the only Government amendment that he could remember that converted the word ''may'' to ''shall''; that is usually the prerogative of those in opposition, but I am happy to establish a precedent for regulatory-making powers. We believe that it is important to send a clear and obvious signal to the regulatory bodies, and the wider public, that we demand that the council acts in a fair and even-handed way. The amendment will ensure that that intention, which has always underpinned our thinking on the issue, is included in the Bill. We have decided to table it as a result of conversation with the regulatory bodies. I know that they would have liked us to go further, but we were unable to do so because it is important that the council has the reserve power as a last resort.
I may not have persuaded Opposition Members that it is necessary for the council to have the power, but I hope, at least, that I have reassured them that we considered the arguments carefully. We are amending the Bill to try to clarify the procedures that we expect to be followed and we have made it abundantly
clear--I have tried hard to do so this afternoon--that the power in clause 25(2) is a reserve power to be used only when there is no alternative.