Clause 25 - Regulatory bodies and the Council
NHS Reform and Health Care Professions Bill
5:00 pm
Mr Oliver Heald (North East Hertfordshire, Conservative)
The amendments are important. The first in the group, amendment No. 238, is not, perhaps, the most important, although it is quite important. Amendment No. 186 is the most significant.
Amendment No. 238 would require a body to
''take all reasonable steps to''
co-operate with the council. Clause 25(1) states:
''Each regulatory body must in the exercise of its functions co-operate with the Council.''
My understanding is that ''co-operate'' there is intended to be within the bracket of reasonableness. Can the Minister confirm that reasonableness is implied in the duty to co-operate and that it is not an absolute duty, but one that is limited in that way? I imagine that that is how a court would look at it.
Amendment No. 186 is the main amendment, and amendment No. 237 is consequential upon it. Amendment No. 186 is proposed on the basis of concerns raised by the statutory regulators of the eight relevant bodies. Others also support it. The presidents of the various regulatory and shadow regulatory bodies make it clear that they strongly support the conclusions of the Bristol royal infirmary inquiry. They believe that the principle of independence from Government is seriously undermined by the proposal in clause 25(2) that a new council, a non-ministerial Government Department, would be able to direct
regulators to change their statutory rules on important matters even if regulators believed it to be against the public interest. That concern is even greater because that imbalance, as I would put it, between the lay membership and membership from the regulatory bodies is also proposed.
The background to amendment No. 186 is the concern that the various statutory regulators have set out. Clause 25 gives the Council for the Regulation of Health Care Professionals wide powers to direct each statutory regulator on how to do its job. It dilutes the principle that each regulatory body should be directly accountable to Parliament.
Although the words ''recommend'' and ''encourage'' are used quite widely, the power of direction will apply to all matters relating to rules that require Privy Council approval. In effect, that means almost every significant policy area. It is not framed as a reserve power, which the Minister called it earlier on in passing, nor limited in any way to exceptional circumstances. If it were, we would expect that to be defined in the Bill. Even where a regulator believes that to make a requested change will be against the public interest, it will be required to conform with the CRHP directions. The various statutory regulators believe that only Parliament should be able to make that requirement.
Amendment No. 186 has been tabled with the support of the statutory regulators. It is also supported by the BMA, which has said that it is opposed to the substantial powers in the Bill that would enable the council to direct a regulatory body to change its rules on many important policy decisions, even when that body believes that it is not in patients' best interests. The BMA has worked successfully with the GMC to modernise and streamline its structures, and supports this amendment.
We will come on to the Government amendments later, but Government amendment No. 247 states that the Secretary of State ''shall'', not ''may'', make provision in regulations as to the procedure for giving directions to a regulatory body.
Amendment No. 248 states that the regulations must require the council to consult a professional body before giving it directions. That is all well and good, but it is the power of direction itself that undermines the independence of the council. The amendment is drafted in line with the way in which the health ombudsman works; it requires the laying before Parliament of a report, which can then be acted upon. That is a very solid way of dealing with matters, which has worked in other contexts.