Clause 12 - General functions
Human Tissue Bill
10:45 am
Mr Andrew Lansley (South Cambridgeshire, Conservative)
When the Minister says that something is well intentioned, it sometimes sounds like an insult. The amendment is not only well intentioned; it is an accurate reflection of the considerations that Parliament would want to be included. It is not an exhaustive list, and there are dangers in trying to present it as such. It is a fair summary of the principal considerations that Parliament would want the authority to have in mind.
The Minister's comment that the amendment could be a hostage to fortune is an arguable proposition. I find it difficult to conceive of circumstances in which the authority would not balance the desirability of securing public confidence and available material with the minimum necessary burdens. We could have written that in a much longer form, but the objective was to reflect those purposes in as short a form as we could.
I suspected that the Minister would argue that the considerations were so self-evident that the authority would not need guidance on them. Without paragraph (c) of the amendment, there is a danger that when the authority comes to consider its activities and somebody in the HTA argues strongly that things should be done in a less burdensome rather than more comprehensive way, there will always be—because of the nature of the statutory regime—a tendency to go down the route of comprehensive regulation rather than what one might refer to as appropriate regulation.
It is all very well for the Minister to say—we shall discuss this point in one particular respect later—that the authority will be reviewed by the Better Regulation Task Force, but there is nothing in the Bill, or any other statute for that matter, that means that the authority must have any regard for the BRTF's views.
It can review all it likes, but the authority can say, ''We have a statutory responsibility, and in meeting that we cannot vary our decision, because we are set up to be comprehensive.'' Precisely the things that the Minister says about the comprehensive nature of the regime and the necessity for its integrity are likely to lead in the long run to a comprehensive and burdensome way of addressing the authority's responsibilities.
I focus on that point because paragraph (c) is the part of the amendment that is most likely to go out of the window. It is probably fair to say that paragraphs (a) and (b)—concerning public confidence on the one hand and securing availability on the other—are matters that any authority trying to meet such responsibilities would consider. Sometimes, it does no harm to recognise in an authority's statutory form the balance that it is required to strike. Although we will hold the authority accountable by examining what it does and ensuring that its activities are transparent, it should be aware that we must do so against the background of its requirement to try to balance those considerations. As the word ''desirability'' is not susceptible to definition, it would be subject to little challenge in the way that the Minister contends. Challenging the decisions of the authority by reference to its not having had regard to one of those considerations would in effect mean having to go to judicial review to say that absolutely no regard was had to the issue. If the authority made decisions without regard to any of those factors, it ought rightly to be subject to review because they are the factors and purposes for which it was established. If it leaves them out and is subject to challenge, so be it.
I am not in the least persuaded by the Minister's argument that the proposal is inappropriate. Her argument seemed to be that when we set up regulatory bodies it is very tiresome and potentially risky to tell them what they ought to do. That seems to me to be what we are here to do. During the last Session, I was concerned with the establishment of Ofcom, the new water regulatory body and the independent regulator for foundation hospitals. I would have to go away and look this up, but in none of those cases do I recall that, having defined what the regulator was intended to regulate, Parliament did not trouble itself to say why the regulator was doing it, what its duties were and what considerations it should have in mind. To varying degrees, that is what Parliament does when it sets up regulators. Therefore, I am not persuaded.
It is not my objective to divide the Committee. Wherever we can, I want us to proceed by consensus, so I will not press the amendment to a Division. However, the Minister may be sure that before Report I will marshal examples of the many cases in recent years in which the Government have set out not only the functions of a regulator, but the duties and the considerations to which a regulator should have regard. I will do that to demonstrate that such proposals are not generally regarded as a hostage to fortune. The Minister may have adopted the structures of the Human Fertilisation and Embryology Authority from 1990, but that has been overtaken by
the way in which we currently adopt best practice in setting up regulatory bodies. Unless the Minister chooses on Report to adopt some of that through Government amendments, we will return to the matter. However, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 12 ordered to stand part of the Bill.