Mrs Irene Adams (Paisley North, Labour)

I call Mr. Burstow to move amendment No. 24.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

I intend to speak about the subject of the amendment on clause stand part, so I shall not move it.

Dr Andrew Murrison (Shadow Minister, Public Services, Health & Education; Westbury, Conservative)

I beg to move amendment No. 11, in

clause 4, page 4, line 23, leave out subsection (7).

Mrs Irene Adams (Paisley North, Labour)

With this it will be convenient to discuss amendment No. 23, in

clause 4, page 4, line 26, leave out subsection (8).

Dr Andrew Murrison (Shadow Minister, Public Services, Health & Education; Westbury, Conservative)

I commend the brevity of the hon. Member for Sutton and Cheam (Mr. Burstow), who speaks for the Liberal Democrats. I, too, will attempt to be brief.

This matter was chewed over in Grand Committee, and the form of words that we now have is the result of their Lordships' deliberations. However, there is still a little bit of confusion about what is meant by subsections (7) and (8). I hope that as a result of my probing amendments, the Minister will be able to expand on their provisions.

I understand that the agency will be a non-departmental public body, clearly distinct from a special health authority. It will therefore have a great deal more independence than the special health authority has now. That being so, powers of direction come into play. Subsections (7) and (8) seem to make it possible for the agency to be directed by the authority in a way that is not particularly well defined. The Grand Committee made play of the provision that the agency should ''have regard'' to the authority's policy when exercising its functions. That concerns me.

Amendment No. 11 teases the Minister by suggesting that that somewhat meaningless provision should be removed. We need to decide what is meant. Will the authority be able to tell the agency to do such and such, or to read its policy on this, that and the other? If so, we need to know who is to decide whether the agency has not had regard to a particular policy, what veto the authority might have, and under what circumstances it might be used. I am a little unhappy about that, and further work might be needed to clarify the relationship between the agency and the authority.

Amendment No. 23 is of a similar genre, so I shall not expand on it. I hope that I have made my purpose clear. I should be grateful to the Minister if she clarified the relationship between the agency and the authority.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

I, too, shall speak briefly. Over and above the question of precisely what is intended by the phrase ''have regard . . . to'' in subsection (7), I ask the Minister to share with the Committee parliamentary counsel's thinking when advising that form of words rather than the phrase used in respect of the Food Standards Agency. I understand that Lord Clement-Jones raised the issue in another place, when he said that the present formulation had been used in respect of other bodies such as the Commission for Healthcare Audit and Inspection, but that it does not seem to apply in quite the same way to the workings of the FSA. My noble Friend rightly said that the role of the Health Protection Agency seems closer to that of the FSA than to that of the Healthcare Commission; it seems strange not to use the same formulation in the Bill. It would be useful if the Minister said something about that.

I have a further question about the effect of subsections (7) and (8), in respect of earlier discussions about finance and devolution. If it is a power of direction with which the agency must comply, as suggested in subsection (8), that surely could result in the agency incurring expenditure that it feels it should not have to pay. I am not clear what mechanism will be used in such circumstances. Will the agency be able to cut its cloth to fit the resources provided by the relevant devolved authority, or does the power supersede that? Will the power allow those devolved bodies to require something of the agency over and above that for which they are paying? It would be useful to have that clarified.

Miss Melanie Johnson (Parliamentary Under-Secretary, Department of Health; Welwyn Hatfield, Labour)

Perhaps it would be helpful if I explained the purpose of the subsections to which the amendments moved by the hon. Member for Westbury (Dr. Murrison) relate. The amendments are not necessary. Subsection (7) gives the appropriate authority—the Secretary of State or the devolved administration as defined in clause 6—the power to direct the agency to have regard to aspects of the policy of the authority. The phrase ''have regard . . . to'', which has been subject to questioning by the hon. Gentleman, means to take account of. We cannot give a full set of meanings, but the matter of whether an authority has had regard to an aspect of policy will ultimately be for the courts to decide. It is not for us, as legislators, to interpret that.

Subsection (8) requires the agency to comply with any direction under subsection (7) and subsection (9) gives the appropriate authority the power, if it

''thinks that the agency is to a significant extent—failing to discharge any of its functions,''

or to discharge any of them properly, to

''give the agency such a direction as it thinks appropriate for remedying that failure.''

The power is subject to relevant consultation, described at subsection (13), which is intended to ensure that directions under subsection (9) do not place a disproportionate burden on the agency.

The approach taken in subsections (7) to (9) is close to that which Parliament approved last year for the Commission for Social Care Inspection and CHAI, which the hon. Member for Chutton and—it is too early in the morning—Sutton and Cheam (Mr. Burstow) mentioned. They provide much more limited powers of direction as to the exercise of functions than the Secretary of State and devolved Administrations currently have in relation to the agency's predecessor bodies. That reflects our determination that the agency should be independent, and that the Government should not micro-manage it. The issues were well aired in another place, and changes were made in response to matters that were raised by noble Lords.

We do not envisage that the appropriate authorities will need to make much, if any, use of the power in clause 4(7). The Department of Health has no intention of issuing weekly directions to the agency to take account of this or that aspect of policy. On the contrary, we are acting to reduce the burden of bureaucracy that we place on the NHS and other bodies by issuing a lot of communications.

Nevertheless there could, as I have said, be circumstances in which the provision was useful. It is difficult to give examples of how we might use a power that we do not expect to have to use. However, it is possible that the power in subsection (7) might be used by an authority that is beginning to consider whether the use of the power in subsection (9) is justified. I have some examples here, if hon. Members would like to hear them.

I have addressed many of the questions that have been raised. We do not expect to have to make much use of subsections (7) and (8), but they are not meaningless provisions.

Dr Andrew Murrison (Shadow Minister, Public Services, Health & Education; Westbury, Conservative)

Some examples would be helpful.

Miss Melanie Johnson (Parliamentary Under-Secretary, Department of Health; Welwyn Hatfield, Labour)

Yes. One aspect of policy might be the aim of tackling health inequalities. The power in subsection (7) would not enable the appropriate authority to prescribe the action that the agency should take in the light of that aim. However, under subsection (8), the agency would have to take account of such a direction. The direction could not be ignored. The fact that subsection (7) enables an appropriate authority to identify aspects of the policy of the Secretary of State or of the devolved Administration that the agency must take into account could be relevant to judgments as to whether the agency is failing to a significant extent to discharge a function properly and therefore as to whether a direction should be included under subsection (9).

As I said, subsection (7) is, in a sense, a preamble to subsection (9), under which the appropriate authority considers possible action.

The Department, or the Government generally, might use the power under subsection (7) when it wants the arm's length bodies that are accountable to it to adopt a particular policy on their use of public funds. The Late Payment of Commercial Debts (Interest) Act 1998, for example, now provides the statutory right to claim interest on late payments of commercial debts. Before that Act was introduced, I recall that the Government made it clear that they expected the public sector to meet certain deadlines in settling bills, so subsection (7) would enable us to direct the agency to take account of such a policy in the future.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

Will the Minister confirm that the power to direct would also be useful for giving effect to some of the outcomes from the ALB review, which might require the reconfiguration of some of those organisations and co-operation between different organisations to manage their back-office costs more effectively?

Miss Melanie Johnson (Parliamentary Under-Secretary, Department of Health; Welwyn Hatfield, Labour)

We have no intention of using the power to direct unless it is necessary. We will usually expect the agency, as with all other Government bodies, to enact the policies that are relevant to them and that we should not need to resort to such powers. As I said, subsection (7) is more a staging post to subsection (9) than something that we expect to use routinely. We would probably use it only in the event of something not being picked up in the usual course of events—a situation that might cause us all mild concern. We do not expect that it will be used for anything specific. It is more a question of a body's taking due account of a certain area of policy.

Dr Andrew Murrison (Shadow Minister, Public Services, Health & Education; Westbury, Conservative)

Subsection (3) contains a range of broad powers to set up companies and all manner of other things. I would be very concerned if only a significant degree of direction were given in the mechanistic way that the Minister described, for example, in the collecting of debts. There is also a clear distinction between that sort of mechanistic direction, which relates to back-room functions such as the management of accounts, and the agency's functions, or what the agency is meant to be doing, which we discussed in some detail in our debate on clause 2. The two are quite distinct. Whether we use the terms ''directing'', ''having regard to'' or any other form of words, I hope that the Minister will accept that there is a clear difference between the functions of the agency, which we have discussed at length, and the back-room functions relating to such things as finance and debt collection.

Miss Melanie Johnson (Parliamentary Under-Secretary, Department of Health; Welwyn Hatfield, Labour)

The Government do not intend to use the power to direct the agency to take account of aspects of policy that could be used to micro-manage the agency or to dictate its detailed operational arrangements. Indeed, the premise of the Bill and the basis on which the arrangements are set out is that the agency is a grown-up body and should be left to make grown-up arrangements on its own behalf. We do not need to be the hand in the glove all the time.

I shall give another example of a situation in which the power could be relevant. The Department has a policy that research should generally be published. If the agency did not publish its research, which is very unlikely, it could be directed to take account of the policy. Again, however, the Department would not necessarily dictate what it did in any specific instance. Again, it has a general, across-the-board policy.

On the issue of the arm's length body review, which the hon. Member for Sutton and Cheam mentioned, we could not use subsection (7) to give the agency new functions or detailed operational instructions. There may be no requirements in legislation as regards research or the payment of bills—to take two good examples—but normal, accepted practices may already be in place. Clause 4 is simply a rainy-day clause: in the unlikely event that things go badly wrong, it will help us to do what is necessary.

Dr Andrew Murrison (Shadow Minister, Public Services, Health & Education; Westbury, Conservative)

I am content with the Minister's explanation. She gave some helpful examples, which have clarified her intentions. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

I wish to raise two issues, the first of which arises out of the exchanges that we have just had. I want to repeat my question about the Government's thinking on subsections (7) and (8). As the Minister said, the formulation is similar to that used for the Healthcare Commission and the Commission for Social Care Inspection rather than that used for the Food Standards Agency. It would be helpful if she could tell us what the thinking was that led the Government to base the formulation on the commission model rather than the Food Standards Agency model?

Secondly, I want briefly to probe the Government on the issue of surveillance, which is dealt with elsewhere in the clause and which I would have raised in my amendment, had I moved it. What timetable will the HPA work to in moving from the mandatory monitoring of methicillin-resistant Staphylococcus aureus to the mandatory monitoring of several other bacteria? It is some time since the Government said that the intention was to move to mandatory monitoring. In many people's minds, health care-acquired infections are synonymous with MRSA, but the category is far broader. It would be helpful to know when the data will start being collected on a mandatory basis so that we have a clearer picture of the scale of hospital-acquired infection.

Miss Melanie Johnson (Parliamentary Under-Secretary, Department of Health; Welwyn Hatfield, Labour)

May I reassure the hon. Gentleman on his general anxieties about surveillance, which he also raised on Second Reading? At this point, it would probably be useful to discuss his amendment, which would have put a duty on the agency to prepare plans for expanding its surveillance activities and to publish its findings, together with an assessment of the costs. The agency already has a power to prepare and publish

plans for surveillance activities if it so chooses, so the amendment is undesirable for two reasons. First, as I said, we want the agency to be independent and grown up. Secondly, the amendment would have raised questions about why surveillance, among all the agency's other activities, had been singled out for attention, and why proposals had been made for expansion.

Surveillance is an essential activity, and the agency will be just as dependent as the special health authority on improving surveillance if it is to discharge the functions that we envisage under clauses 2 and 3. We do not use the term ''surveillance'' in the Bill, however, because we are aware of only one other instance in which it has been used. That was in the Regulation of Investigatory Powers Act 2000, which applies to covert activities, so it is perhaps a little different from what we are dealing with here.

We want uniformly high standards of clinical microbiology throughout the NHS. To take up one of the hon. Gentleman's concerns, it is important that the high standards in the labs run by the Public Health Laboratory Service are retained and, if anything, enhanced. We have taken steps to ensure that that is the case with the new post of inspector of microbiology.

The HPA currently undertakes a substantial amount of surveillance—if I can use that word—and it has inherited a number of systems from every part of the country. It is now working on a strategy, which will be put out to consultation in October 2004. That is essential, because the agency obviously relies on joint working with the NHS, local authorities and the other bodies that we have discussed.

The agency is working well, although there are gaps that the strategy will address. I am sure that the hon. Member for Sutton and Cheam will be interested to see that and will no doubt participate in the consultation in whichever way he sees fit, when the time comes.

Dr Andrew Murrison (Shadow Minister, Public Services, Health & Education; Westbury, Conservative)

This is a busy clause and there is a great deal in it. We have one or two concerns. There is a lot in subsection (3) and, my word, the agency will be jolly busy discharging it. On Tuesday we clarified what the agency's important work would be. I am concerned that in setting up companies, for example, the agency will run the risk of taking its eye off the ball. I am not necessarily against public bodies' diversifying into the commercial sector. However, I know from personal experience that there is sometimes a tendency for a body's functions to become diluted in the pursuit of commercial spin-offs and so on. I seek the Minister's assurance that that will not happen to the agency, particularly as it will by all accounts be so important in discharging the various functions that we discussed in relation to clauses 2 and 3.

On reflection, I think that the Bill would be greatly enhanced by including a reference to education in subsection (1)(e). We have talked about training, but on Tuesday we decided between us that education would be a major part of the agency's functions. We talked about ''Protect and Survive'' and we have rehearsed the arguments today, but that probably falls in the category of education, rather than training. I

hope that the Minister will agree on reflection that giving more prominence to the word ''education'' in the Bill would be helpful.

I am a little concerned by the list in subsection (1). The ALB review is due to start shortly. By the time that the Bill returns to the House on Report, I suspect that the review will have been finished—at least I hope so. The Minister may wish to amend the list in subsection (1), in the light of the abolition of various bodies as a result of the review. Perhaps she would like to comment on that in broad terms.

Subsection (3)(b) is quite tricky. It concerns the setting up of companies, but we have not discussed that at great length. To be fair, I think that the issue is beyond the ken of many members of the Committee, because it is complicated and legally fraught. However, I should like to register my slight concern. The provisions give a general power, and that is fine—I assume that we might see more in regulations. From my limited understanding, I know that the issue is a minefield. The HPA might encounter difficulties in setting up companies and drawing up contracts. I suppose that I am thinking of my constituency interests at Porton Down, where I understand that a similar process is going ahead. I hope very much that the powers have been designed with Porton Down in mind.

Miss Melanie Johnson (Parliamentary Under-Secretary, Department of Health; Welwyn Hatfield, Labour)

Some of the functions in clause 4 are bread-and-butter activities for a number of bodies. The functions described may relate to everyday matters, as well as the setting up of companies, which the hon. Gentleman assumed was all that the provisions referred to.

The Centre for Applied Microbiology and Research has huge commercial experience and Porton Down is involved with a wide range of other commercial activities, so there is a lot of experience in the organisation. Any organisation may need to use a number of powers to provide for its everyday functions, to make sure that its staff are accommodated and that it is supplied in a variety of ways, as well as to deal with its commercial interests.

I am sure that the hon. Gentleman, knowing the success of the arrangements at Porton Down, will agree that such provisions have so far proved to be not a distraction but an enhancement. We should be confident that the HPA will not go in a direction that is intended to distract from its role, but where useful it will enhance its role and help others to enhance theirs. That will work towards the general effectiveness of the agency. I am sure that the agency has its eye on the ball in its current performance, and will not be distracted in any way. The question is which of the functions may be necessary on occasion in order to take forward the HPA's business in the most appropriate way possible and to support appropriately the functions that it needs to support.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

The Minister is about to sit down, but I want to make sure that the opportunity is not missed to answer the question that I asked about the FSA versus the CHAI formulation. Could she address that point?

Miss Melanie Johnson (Parliamentary Under-Secretary, Department of Health; Welwyn Hatfield, Labour)

There are a number of differences. For example, some of the powers are paralleled in recent legislation, such as the Health and Social Care (Community Health and Standards) Act 2003 provisions for CHAI and the CSCI. Subsection (2), for example, on which I believe the hon. Gentleman commented on Second Reading, certainly would not enable the agency to detain anyone or to enter specific premises. It would need specific powers to do that.

I have also looked at the arrangements for the FSA model. That is old legislation—perhaps that is a little unfair, but it is certainly more than five years old—and it created a non-ministerial department, not a non-departmental public body. There are a number of differences. The Food Standards Agency—which I assume is what the hon. Gentleman means by the FSA—has a fairly unusual set of arrangements across Government, which were made partly in response to the great concerns about the independence of food advice following the BSE scandal. That body has a different set of needs to the body that we are considering.

Question put and agreed to.

Clause 4 ordered to stand part of the Bill.