Clause 21
Health and Social Care Bill
9:45 am
Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)
We are genuinely struggling with this point, although I am grateful to the Minister for seeking to address it. Often the easiest way for the Opposition to scrutinise a Bill is simply to ask why something has been drafted in a certain way. However, we really are wrestling with this piece of drafting. Interestingly, during consideration of previous clauses, I did not ask why the Government have used in the Bill the words, “health care associated infections”. The word “associated” seems to have become a substitute for “acquired”, which is more commonly used; indeed, the Minister used it earlier. When one sees a word moved like that, one must question what is meant by it. It could not have happened by accident, because those who draft these Bills are highly expert wordsmiths and lawyers. It is right, therefore, that we question this.
I was very interested in the Minister’s answer. He spoke about how removing clause 21(3) would give guidance statutory force, when it should be, in effect, best-practice advice—I think that that is what he suggested—and about the resulting inflexibility. I can understand that in relation to clause 19; however, clause 17 refers to a code of practice. The Minister, therefore, seems to be saying that the code of practice is no more than guidance. This point has been central to our discussions this morning: are we really saying that, because this is such a framework portmanteau Bill—drafted in generic terms and hugely dependent upon the publication, scrutiny and acceptance of the regulations in order to bring into play the true force of law—the code is to be no more than guidance? In that case, why is there a distinction between “code” in clause 17 and “guidance” in clause 19? If there is no difference, should we not just call them one thing?
Alternatively, should we not recognise that the code is likely to need some statutory underpinning, so that breaches of its provisions are justiciable? That would give the commission enforcement powers that would carry the credibility that we all want. We discussed whether the list was sufficiently comprehensive and flexible under previous amendments, the essence of which was to put parliamentary prioritisation in the minds of all of us who are concerned about the matter. Here, the amendment would give legal earnest to the operation of the commission, using its code. There is differentiation between the words “code” and “guidance” in the two clauses, and if the Minister is going to resist the amendment because he believes that a breach of guidance should be subject to statutory legal proceedings, my point about that difference remains valid. I am not satisfied on the point, and I think that it will be appropriate to press the amendment.