Clause 3 - GENERAL DUTY OF REGULATOR
Health and Social Care (Community Health and Standards) Bill
2:30 pm
Mr Andrew Lansley (South Cambridgeshire, Conservative)
I shall forbear to say that schedule 4 is not the right place to insert House of Commons disqualification. That relates to the previous debate. Schedule 4 is the schedule of amendments to the law in relation to the introduction of the term ''NHS foundation trust''. There we go; we have moved on.
Clause 3 is simple in its way, but therein lies a wealth of meaning. The purpose is to introduce the duties of the regulator. The manner in which the duties are defined says that they are, in effect, consistent with the duties of the Secretary of State as consolidated under the National Health Service Act 1977.
Before discussing those duties and where there might be enhancement and improvement of their definition, it might be helpful to recognise that in a whole series of Acts in recent years—and, perhaps more to the point, in the practice that has flowed from that legislation—it has become apparent that there is a significant difference in practice between the exercise of duties by a Secretary of State and by a regulator.
There was an exchange this morning about the nature of regulation as opposed to other ways of exercising functions. A Secretary of State is not a creature of statute, with limitations bounded by statute, as are regulators and local government. He is not precluded from having regard to issues beyond those set out in the statutes that he uses. A Secretary of State has to have regard to certain duties that are set out in statute, but is not circumscribed by those duties
as not to have any regard to other issues. In practice, we see Secretaries of State as policy-makers who expand the boundaries of their vision as they apply their duties according to changing circumstances.
Regulators are somewhat different beasts; they are creatures of statute. All recent experience tells us that if one does not tell regulators—as distinct from Secretaries of State—what their duties are, or what they should have regard to in the exercise of their duties, it is highly likely that they simply will not expand the boundaries of their thinking to embrace any additional duties or consider matters that are outside the boundaries that have been set in statute.
It is necessary when establishing the post to set out precisely the duties of the regulator and what he or she ought to have regard to. I hope that the Minister agrees. The difficulty is that the manner in which clause 3 is drafted suggests that the regulator is nothing other than a statutory counterpart to the Secretary of State and has no distinct function. The duties of the Secretary of State in relation to the NHS seem, in effect, to be carried through into the duties of the regulator, even though the regulator has specific functions to perform.