Clause 2 - Independent Regulator of NHS Foundation Trusts
Health and Social Care(Community Health and Standards) Bill
10:30 am
Mr John Hutton (Minister of State, Department of Health; Barrow and Furness, Labour)
It feels as if it is an awfully long time since I addressed the Committee, and I hope that hon. Members have not suffered too much as a result, as the Committee has been left in the capable hands of my hon. Friend the Under-Secretary of State. I have calculated roughly that if we carry on at the current rate we will need 800 sittings of the Committee to complete our deliberations on the Bill, which would present something of a problem in terms of the programme resolution—I estimate that the Committee would still be sitting in 2007. We need to make more progress today if possible.
There have been some very good speeches. I congratulate the hon. Member for South Cambridgeshire, who, in a very short speech that should be a model lesson for us all, made a very effective point, which I will address in a moment.
Clause 2 sets up the office of the independent regulator, and schedule 2 makes provision for essential operational matters such as staff, pensions and other issues. The independent regulator's powers and functions are set out in subsequent clauses, notably in clauses 3 to 10 and 14 to 26. The Committee will have ample opportunity to discuss all the provisions, which are part of a wider picture. Committee members
who have spoken have been correct to draw together those wider threads.
I shall now set out the wider picture. Our three principal objectives in setting out the arrangements are: first, to ensure the operational independence of the independent regulator; secondly, to ensure that he or she has the necessary tools to do the job properly; and thirdly, to maintain the overall cohesion and effectiveness of the national health service. It will not come as a surprise to Committee members when I say that I believe that the draft Bill meets all those fundamental objectives. That is the reason why I shall not be asking my hon. Friends to support this group of amendments. I should like to set out my reasons for that.
This group of 14 amendments rests on two broad arguments, and the hon. Members for South Cambridgeshire, for West Chelmsford and, to a lesser extent, for Oxford, West and Abingdon set out those arguments when they moved their amendments. The first broad set of assumptions on which the amendments rest is that the independent regulator is not sufficiently independent. That was the theme of the speech by the hon. Member for West Chelmsford. The second argument is that the office of the independent regulator has somehow been misconceived, and that we have set it up inappropriately. That was the theme of the speech by the hon. Member for South Cambridgeshire, who, citing the Better Regulation Task Force report, wants the office of the independent regulator to operate as a committee with a broad structure of five members. The hon. Member for Oxford, West and Abingdon wants the office of the independent regulator to be part of the Commission for Healthcare Audit and Inspection, again with five people appointed. Obviously, five is the magic number.
The first of those two broad arguments rests on the traditional conspiracy theory, whereby the Government, in spite of what they say, secretly plan to direct everything from the centre. In my experience as a Minister and as an Opposition Member of Parliament, a familiar theme in Standing Committee debates—no matter what the subject—is that the Government say one thing but do another, and that the Secretary of State will be able to tell the independent regulator what to do at every turn.
That is simply not true; any objective reading of the Bill will make that palpably obvious. The second argument, advanced by the hon. Member for South Cambridgeshire, rests on the assumption that the chosen regulatory model will be ineffective for the job. Both those assumptions are wrong. The Bill makes provision for an independent regulator and an effective regulatory regime. The independent regulator is bound by the duty in clause 3 to ensure that he acts in the best interests of the national health service, but he is also under a wider general public law duty to act reasonably and proportionately; otherwise, he has complete discretion to exercise his functions.
I must tell the hon. Member for West Chelmsford that the independent regulator is not subject to direction by the Secretary of State. The hon. Gentleman, uncharacteristically, has confused two separate issues. He has confused a group of
administrative arrangements that are required by Act of Parliament for the establishment of a non-ministerial body—arrangements connected with the opening of an office, how an office holder is appointed, and so on—with the actual operational independence of the regulator. That is not possible within the architecture of the Bill.
The hon. Gentleman carries out his work carefully, and I am sure that he will not be able to find any provision in the Bill relating to the discharge of the regulator's functions that is subject to an overriding direction by the Secretary of State. We have made absolutely sure that there is no such provision in the Bill. It is important for the way in which the new arrangements work that the separation of functions that the hon. Gentleman described exists, and that the freedoms that we are discussing are genuine, but are balanced by appropriate safeguards.
On Second Reading and in Committee, the hon. Member for West Chelmsford was unable to reconcile the case for freedoms and the case for safeguards. I am not an absolutist, I am pragmatic about these matters, and the Committee should be pragmatic. The Committee can identify the real and genuine freedoms given in the Bill to foundation trusts to improve the responsiveness of local NHS services but can, at the same time, argue that there is a need for effective safeguards.
How will those safeguards be exercised? That is the sixty-four million dollar question. We are clear that it is the job of the regulator to perform that balancing act. He must judge at what point it is necessary for him to intervene. The Labour party is clear—as, I hope, are all my hon. Friends—that in the new NHS it should not be the job of the Secretary of State to get involved in the operational issues affecting the delivery of health care services. That is not what the regulator is there to do, and it is certainly not what the Secretary of State will require the regulator to do.