I beg to move amendment No. 255, in page 73, line 4, leave out 'regulatory body' and insert
'of the regulatory bodies referred to in section 23(3)(a) to (g)(i), and three members appointed by the regulatory body referred to in section 23(g)(ii) or the successor regulatory body (within the meaning of Schedule 3 to the 1999 Health Act) to the Council for Professions Supplementary to Medicine, the Health Professions Council, established by an Order in Council under section 60 of that Act.'.
With this it will be convenient to take the following amendments: No. 188, in page 73, line 6, after 'appointed', insert—
'on the recommendation of the NHS Appointments Commission.'.
No. 189, in page 73, line 12, leave out 'one fewer than' and insert 'equal to'.
No. 256, in page 73, line 12, leave out 'one fewer', and insert 'one more'.
Government amendments Nos. 203 and 204,
Amendment No. 226, in page 73, line 25, at end insert—
'(2) The power to make regulations in this paragraph shall be exercisable by statutory instrument.
(3) A statutory instrument containing regulations under this paragraph shall not be made unless a draft has been laid and approved by a resolution of each House of Parliament.'.
Government amendments Nos. 205 and 187.
This is a large group of amendments and, as is often the way, the schedules dealing with membership and appointment attract controversy. That is evident from the number of amendments, which is unfortunate because there are larger issues at stake. It is interesting that a number of Government amendments are included in this group, and they will be welcomed by Committee members from all parties.
Amendment No. 255 raises the issue that was discussed on clause 23 stand part; the difficulty perceived by some, if not many, members of professions that are regulated by the Council for Professions Supplementary to Medicine, soon to be the Council for the Regulation of Health Care Professionals, that they are under-represented on the new council. It is important to understand what representation means. The Minister made it clear that he wanted, rightly, the new council to have representatives from the different councils who can describe the way in which they work and share best practice. The Minister may argue that the health care professions that are regulated by the Council for Professions Supplementary to Medicine are not so different that it would be impossible for issues that will be discussed at the new council to be adequately represented by a member of that council who happens to be a member of one of the 12, but not of the others. There is some logic in that and the way in which schedule 7 is drafted makes that easy.
The Minister may argue that apportioning members on a numeric basis opens a raft of separate issues—for example, that there are many more nurses than doctors, even in Oxfordshireand that we should have proportional representation. I am certainly not suggesting that, which should reassure hon. Members who have a vested interest in the status quo. Nevertheless, it is important to put the case for the amendment, if only to give the Government the opportunity to recognise that we are starting from the existing system of health care professional bodies and councils, rather than from where logic would have led us had we started from scratch.
It is remarkable that there will be a representative from the council that regulates chiropractors and a separate representative from the council that regulates osteopaths, which are important, but not necessarily more important than the 12 health care professions currently represented by the Council for Professions Supplementary to Medicine. Yet, there will only be one representative of the vast number and the wide range of professions currently regulated by the CPSM.
Is there not a concern that the proposed nursing and midwifery council will represent two very large professions and the health visitors too, although they are not mentioned in the title? Why should they not have three slots, because there are probably as many of them as there are of all the health professionals in the health professions council? How would you calibrate the system?
The hon. Gentleman asks you, Miss Widdecombe, how you would calibrate it. I think that you would find it very difficult. I am seeking to accept some of the Government's arguments that representation on this new council cannot be according to health care profession. First, the new council would be large and unwieldy; and secondly, it would still not be proportionate to membership. Of course, I accept that. This is a probing amendment to find out where the Government want to go with regard to the future structure of these councils and whether they recognise that this is a consequence, albeit an unfortunate one, of the fact that one health care profession has a separate council, whereas another regulatory council covers a wide range of organisations.
In an earlier debate the Minister implied that because the proposed council will represent the regulatory functions of the councils that look after all these professions, there is no reason that representation will be any different in its quality or its stress, whether it represents a physiotherapist, a clinical scientist or a podiatrist. Many of those covered by the CPSM have argued that there is a different culture in those professions and that regulation is effectively a compromise between them. That is why there has been such a strong call for uni-professional bodies dealing with education and training.
The Minister will have to accept that because of the structures and the constraints that we are under, something may well be lost and he may need to offer some reassurance that the council will be looking mainly at issues that are unlikely to be affected by the profession of the representative on it. Indeed, the Government might argue that some issues involving best practice will be so clear and obvious that they could be adequately represented by lay members nominated to the council from the regulated councils. I am not saying that an issue need to be simple so that lay members can understand—I hope that I am not misunderstood on that point—but that something that is core to the regulation does not require professional input.
Another question that this debate raises is that when new professions are brought in, they will be under some incentive to have their own council, rather than join the health professions council, as it is soon to be, because they feel that their professional interest, which is already diluted on the council—chiropodists certainly see it that way—will be further diluted on the new council. That may cause difficulty in the speed with which we would want to ensure that there is adequate protection of title, and therefore public protection by regulating the new professions.
Through this amendment, I want the Government to accept that there is no perfect way of doing this given the asymmetry of the current councils. The councils regulate issues such as education and training, which are different in the various professions in the CPSM, on which they take advice from professional advisory committees. Those professions should not be subject to direction or suggestion from the council without wider consultation with the health care professions. The specific issues associated with physiotherapy and chiropody are different from those associated with the clinical sciences. I hope that the Minister has understood my point.
If it meets the Committee's wishes, it may be appropriate to discuss the other amendments. I have appended my name to amendment No. 188, which was tabled by the hon. Member for North-East Hertfordshire and his colleagues. They may feel that the issue has been tackled by Government amendment No. 203. If that is the case, it shows that the Committee can be of some use, which is something that I welcome.
Amendments Nos. 189 and 256 seek to probe the Government on the balance between council members, who are members of the council nominated by the regulatory councils, and the number of Government appointees, albeit that if Government amendment No. 203 is passed Government appointees will be mediated through the NHS Appointments Commission. Government amendment No. 203 provides reassurance for those who are worried that an automatic Government majority, if one includes those appointed by the devolved powers, goes too far in undermining the independence of the regulation of health care professions given the wide directional powers in clause 25.
In earlier sittings, I asked the Government whether they were certain that the protection of patients and the public could better be provided by professional self-regulation than by Government regulation, and the Minister indicated that that was the case. Although I understand that the idea of the council is to identify best practice and to promote the interests of patients and the public, it is still unclear whether that cannot be done with a council the majority of whose members are appointed by the councils. The members may not all be professionals but the councils should appoint the majority. For the council to be effective, it must have the confidence not only of the public and Parliament, but of the professions. If the status quo ante is a professional majority, or at least a majority appointed by the councils regulating the professions, the Government must show a need for that to change to a minority appointed by the councils. I hope that the Government will set out why they feel that that must be the case.
Amendment No. 226 seeks to ensure that some regulations that the Secretary of State may lay to provide for various functions are subject to positive resolution procedure. In earlier sittings I suggested to the hon. Member for North-East Hertfordshire that there were some regulations that it would not be appropriate to die in the ditch over. This type of amendment allows Opposition Members to make a stand because it is in these sensitive areas that positive scrutiny by both Houses of Parliament would be most useful.
Government amendment No. 205 and amendment No. 187, which has become a quasi-Government amendment, seek to reduce the Secretary of State's powers to give directions to employees. I suspect that those amendments will be widely welcomed, and I certainly welcome them.
I start by commenting on amendment No. 255, which was tabled by the hon. Gentleman. There is an argument that the council should be weighted to reflect the size of membership of particular professions. The hon. Gentleman has suggested the figure of three members for the Health Professions Council as a means of raising the argument, and I would be interested to hear the Minister's view.
I have some concerns about the idea of three members for the Health Professions Council because, for example, the Nursing and Midwifery Council, which does not mention health visitors but includes them, represents three large professions that would be represented by one member. Many more people are employed in nursing, midwifery and health visiting than in all other health professions put together, which means that one would not achieve the calibration that one would want on the council. The Minister may have some thoughts on whether it is right for those three bodies to be represented by only one member. It is an odd suggestion that chiropractors should have the same number of council members as nurses, midwives and health visitors.
I wonder whether the Minister would be prepared to consider the issue between Committee and Report stages because he may have further thoughts on how the council might be more representative. In Europe, the Council of Ministers has a weighted voting system, but that sounds like proportional representation, with which I do not agree.
Does my hon. Friend sympathise with the notion that given that much of the council's business will be connected with the medical profession—because doctors tend to be in the frame when it comes to disciplinary action—it is reasonable that there should be weighting towards the General Medical Council, given that we do not expect the Health Professions Council to throw up a great deal in terms of disciplinary action on issues that are in the public eye, such as the Bristol royal infirmary and Shipman cases?
Those are the two competing arguments with which the founders of the American constitution had to wrestle. They decided that the Senate should have one representative from each state—
Let me pursue the point made by the hon. Member for Westbury because it has some merit. The new council will be set up to promote best practice and it will want to be influenced by the councils' experience. If there is equal representation and therefore equal input, a council representing a small number of people against whom there are few complaints—which would mean that that council had gathered little experience to add to the debate—would have equal weight to the General Medical Council, which has huge amounts of experience. Value will be added by ensuring that that experience is put in.
I accept that there may be some professions that have greater experience of criticism than others, and it is true that the GMC has faced much criticism about the way in which it deals with such matters. It is about to reform itself in a manner that most of us would regard as worth while, and it brings a great deal of knowledge and expertise to the council. Some other professions have little experience of criticism or complaints against them, presumably because they deal with issues and practices that are less likely to lead to litigation or serious injury.
Ministers might want to give a little more thought to certain issues relating to the weighting of the council. The Society of Chiropodists and Podiatrists was right to point out in a letter to the Committee that it represents an important profession. As was noted during our discussion of the recent health professions order, chiropodists and podiatrists provide an early-warning system for diabetes. They do tremendously important work, and in the light of moves towards surgical procedures they are moving up the medical practice scale. Perhaps the balance of probability of their receiving criticism and complaints will alter as they undertake different work. Theirs is a serious point. The hon. Member for Oxford, West and Abingdon has tabled his amendment in that spirit, and I shall be interested to hear the Minister's response.
Hilary De Lyon, chief executive of the Society of Chiropodists and Podiatrists, is very anxious to ensure that this issue is properly aired, in part because the Health Professions Council will not establish a statutory professional advisory committee. Through such a committee, many issues relevant to the profession could be fully aired and decisions taken. Because the arrangement will be much more ad hoc than the society would like, the importance of the issue is heightened.
Under amendment No. 188, other members of the council would be appointed
''on the recommendation of the NHS Appointments Commission''.
As the Minister said, the statutory regulators made that proposal to protect the independence of the council when such appointments are made. In the light of the Government amendments, to which we shall come in a moment, and subject to the Minister's explanation of them, it would seem that the Government have responded positively to that proposal. I welcome that. It is good when an Opposition discover that a Government agree with them, and we would be delighted to learn that our suspicions are correct and the Minister is indeed of the same mind on this matter.
Under amendment No. 189, the number of members appointed by regulatory bodies would equal the number appointed by Ministers. That proposal, too, would ensure the council's independence, and the statutory regulators and the British Medical Association support it. The BMA has said that
''it is important that the chairman . . . and the director will be appointed by the Council. However, there is a contradiction that needs to be resolved between the worthy aspiration of independence of the new body and the provision in Schedule 7 . . . that the Government appointees on the Council will have a majority of one.
The BMA therefore supports the regulatory bodies' call for equal membership between Government and regulatory body appointees.''
Does the Minister concede that point, or will he at least give further thought to it between now and Report, given that we are in a constructive mode in respect of schedule 7? The independence of the council is vital. The amendment would not give regulatory body appointees a majority over Government appointees, but it would make them equal, and that would be useful.
The Liberal Democrat amendment would establish ''one more'' regulatory body appointee, but I would not go so far.
I was saying that the current requirement for a professional majority in the regulation of health care professions ensures professional, rather than Government, self-regulation, with all its associated connotations. One need only look at South Africa to see where such regulation can lead. The Government should at least explain why they are moving away from the accepted practice of professional self-regulation. Is such a move a sign that it can never work in respect of the functions in clause 23, or have matters simply rolled out that way?
The hon. Gentleman is obviously entitled to hear the Minister's response. I am not saying that, because the Kennedy report has reached a particular conclusion, that is the end of the matter. Such things need to be argued through, but Professor Kennedy had a point when, in paragraph 75, on page 349, he said:
''The purpose of the system of regulation must be to assure the public of the competence of healthcare professionals and, when necessary, to protect them . . . An effective system of professional regulation . . . needs an independence from the professions and from government which allows it to act in the public interest.''
The benefit of my proposal is just that: it offers a division between ministerial appointees and regulatory body appointees that would maintain an entirely equal balance between the Government and the professions. If one accepts the Government's argument that they want to be one up, matters will edge a particular way; if one accepts the argument that the professions should be one up, they will edge the other. On this occasion, Professor Kennedy is right: we should hold the ring and maintain an entirely equal position.
Perhaps the Government and, indeed, the hon. Member for Oxford, West and Abingdon will argue that such a balance would leave no one in charge. However, we do not want a body of two sides—Government appointees and regulators' appointees—but appointees who co-operate, work together and interact. Making the numbers equal would ensure such co-operation.
I look forward to hearing the Minister explain the Government amendments. As I understand it, Government amendment No. 203, which would enable a special health authority to appoint other members in lieu of the Secretary of State, refers to the NHS Appointments Commission. That amendment is welcome, as is Government amendment No. 204, which would reduce the Secretary of State's regulation-making power in paragraph 5(a) by deleting its reference to
''the number, or limits on the number, of members who may be appointed''.
To judge by Government amendment No. 205 and the Government's acceptance of amendment No. 187, they have conceded that the Secretary of State's direction-making power over the appointment of, and terms and conditions of the appointment of, staff should be removed. The removal of that power is vital if the council is to achieve independence.
However, we are still tempted to press the Government on the regulation-making power and equality of numbers, and I shall be interested to hear the Minister's views on amendment No. 226 and whether he is prepared to look again at amendment No. 189. It is clearly crucial that regulations be made in a spirit that will achieve independence for the council. The final protection is that the matter must be debated on the Floor of the House or in Committee, given the requirement for an affirmative order. If the negative procedure were used, it would not be so debated.
I was delighted to hear, when the Minister was talking about clause 23, that he wholeheartedly supports independence from the Government. I should like clarification on amendment No. 203, which seems to me to remove the necessity for amendment No. 188 and probably also for amendments Nos. 189 and 256, which are very much supported by the BMA, the GMC, the Royal College of Nursing and the Chartered Society of Physiotherapy.
I hope that the hon. Gentleman does not accept that amendment No. 203 would remove the need for amendment No. 189, which would provide for equality of numbers between ministerial and regulatory body appointments to the council. Surely that balance is important.
Yes, but the balance of the numbers would remain the same: one more appointment for the NHS commission. Does the hon. Gentleman not agree that it would be better to have equality between its appointments and those of the regulatory bodies?
Just before the hon. Gentleman finishes, I should like to check one thing with him. Amendment No. 203 provides for appointments to be made by the independent NHS Appointments Commission, and therefore more independently of the Government, but that does not necessarily deal with the issue of whether there should generally be a professional majority or equality in the council. That is a separate point. One does not have to have a suspicion of the Government over independent appointments—although it helps—to be concerned about the broader question of whether we are seeing the end of professional self-regulation as a result of the loss of that majority.
May I clear up one or two misunderstandings that have emerged during the discussion? They were highlighted in the contribution just made by the hon. Member for Oxford, West and Abingdon. This is absolutely not the end of professionally led self-regulation. I tried to make that very clear in my arguments on clause 23 and on why we need the UK council. The council will not supplant the role of the GMC or any other body in professionally led self-regulation in those fields.
I know that the Minister has only just started, but I must stress that if there were not broader concerns about powers in clause 25, I would have little disagreement with what he is saying. Perhaps I should have made it clearer that my concern about this matter is strongly linked with concern about the extent of the powers in clause 25. I do not want to stray too far down that route, but the Minister will need to reassure me about those.
I very much look forward to reassuring the hon. Gentleman about them later. He rightly says that that is a matter for a subsequent discussion, and I do not want to intrude into debates on clause 25 now. However, he is quite wrong to say that clause 25(2) creates a wide power of intervention. It absolutely does not. We have tried to narrow it down to what we regard as the essential minimum reserve power that the UK council will need to discharge the responsibilities that this House will, I hope, give it in that area.
I accept the general argument that concerns expressed about clause 25 are connected to those expressed about schedule 7 and clause 23. I hope to address that later. I think, however, that the hon. Gentleman was wrong to describe clause 25 as allowing a wide power of intervention. We have made it very clear that it is a reserve power, to be used as a last resort. It is an essential tool to enable the council to do its job properly on our behalf.
The amendments cover a wide range of issues. Amendment No. 255 would give the Council for Professions Supplementary to Medicine, or its successor body the Health Professions Council, three seats rather than one on the Council for the Regulation of Health Care Professionals. We have already discussed why I would find that proposition difficult to accept.
There has been some misunderstanding about the nature of the representative role but, as the hon. Gentleman himself argued, we do not envisage that the representatives of the regulatory bodies who will serve on the UK council will represent individual professional groups. They will be there to draw to the council's attention the experience that they have of regulation within their professional areas. It has long been the case, in relation to the Council for Professions Supplementary to Medicine, that there is a uni-professional regulatory body. That council is wide-ranging in scale and remit. It covers 12 discrete professional areas and there has been consensus and support for a long time for the uni-professional regulatory body in the area of professions supplementary to medicine. To disturb and shake that up now would not be terribly helpful.
The hon. Gentleman was, however, right in saying that there is no perfect way to ensure representation. I accept that, but there is usually a right way and a wrong way. The right way might not be the path of 100 per cent. consensus, but this is a matter for judgment and the House—Ministers, and hon. Members on both sides—must ultimately reach a decision. If in saying that there is no perfect way forward the hon. Gentleman means that there will not be 100 per cent. consensus, I agree with him. However, the arrangements that we are proposing for professional representation on the council are closer to the spirit of Kennedy than the alternatives that we have had on offer today. I will return to that point, because I want to quote Professor Kennedy on it.
Amendment No. 188 would ensure that the Secretary of State appointed the seven English non-professionals on the council on the recommendation of the NHS Appointments Commission. It will not surprise the hon. Member for North-East Hertfordshire to learn that we have a problem with the amendment: not with what it seeks to do, but with the way in which it would achieve it. As he is aware, the NHS Appointments Commission is a creature of secondary legislation, brought into existence under, I think, section 8 of the National Health Act 1977. I might be wrong about that section, but it was set up under the power that that Act granted to establish special health authorities. In general terms, it is a mistake to refer in primary legislation to the creatures of secondary legislation. I am sure that the reasons for that will be apparent to the Committee. I cannot accept amendment No. 188, but I consider that amendment No. 203 addresses the hon. Gentleman's concerns. He is right in his characterisation of the purpose of my amendment.
Amendment No. 189 would give the council an equal balance between members appointed by the regulatory bodies and those representing public and health care providers. Amendment No. 256, tabled by the hon. Member for Oxford, West and Abingdon, would reverse that, and give a majority to the regulatory bodies. There is a polarity of views from Opposition Members on that point. If we study the Kennedy report carefully—I shall draw the Committee's attention to a comment in it in a moment—it should become clear why we have chosen the path that we have, rather than the alternatives on offer.
Government amendment No. 203 makes provision for the NHS Appointments Commission to appoint the English non-professional members of the council. It is our version of amendment No. 188. In a sense, I agree with the analysis offered by the hon. Member for Wyre Forest of the effect of amendment No. 203 on the other amendments tabled by the hon. Member for North-East Hertfordshire. I consider that it does negate those amendments. As I understood it, the hon. Member for North-East Hertfordshire was concerned about the appointment of seven members by the Secretary of State in England. Amendment No. 203 entirely removes that argument from his arsenal of invective against the Government's proposals because the Secretary of State will not make those appointments. The hon. Gentleman's concerns have been addressed by our suggestions.
I intend to do so shortly. However, the hon. Gentleman's argument, as I recollect it, was constructed on the premise that there was a need for balance between the regulatory body members and the non-regulatory body members because of his concern about Government appointments. That element of his argument, which was rightly identified by the hon. Member for Wyre Forest, is shot down by amendment No. 203. I shall deal with his wider area of concern later.
Government amendment No. 204 removes redundant words that give the impression that the Secretary of State can intervene by regulations to decide on the number of members of the council. We wanted to remove any uncertainty about that.
Government amendment No. 205 is purely technical and consequential on Government amendment No. 187.
Government amendment No. 187 is a wonderful thing. For the first time in my experience—your experience as a Minister, Miss Widdecombe, is much more extensive than mine—the Opposition had tabled an amendment that was exactly the same as the one that I wanted to table.
I can honestly say to the hon. Gentleman—of course, everything that I say is honest—that I had not seen his amendment.
I can give the hon. Gentleman my absolute, 100 per cent., personal assurance that I did not see his amendment until it was drawn to my attention by my officials when we were trying to table our amendment. Perhaps they had seen it earlier, but I had not, and I did not realise that it was an issue until that moment.
The hon. Gentleman did the right thing in tabling amendment No. 187. It is the first time that I can remember a Minister adding his name to an Opposition amendment. In fact, I do not think that it has ever happened before. I am not inviting you to participate in the debate, Miss Widdecombe, because that would not be right, and I am quite glad that you are not doing so. The amendment, which we obviously support, deals with the appointment of employees and further reinforces our determination to confirm the independence of the new council.
Amendment No. 226 would require the regulations about the appointment of members provided for in paragraph 5 to be made by affirmative order. As I am sure that the hon. Member for North-East Hertfordshire has anticipated, I am unable to accept it. I shall explain why in a moment.
Amendment No. 188 would ensure that the seven English members of the council who are not appointed by the regulatory bodies arrived there by a process of recommendation from the NHS Appointments Commission followed by appointment by the Secretary of State. There is a problem with the amendment in that it refers directly to the NHS Appointments Commission, which was set up under secondary legislation. It is, as Government amendment No. 203 makes clear, a special health authority, and the primary legislation needs to reflect that reality. Amendment No. 203 is designed to achieve precisely the same effect as the amendment tabled by the hon. Member for North-East Hertfordshire. I hope that he is therefore reassured about our intentions.
I am afraid that I have to disagree with the intention underlying amendments Nos. 189 and 256.
Amendment No. 203 states:
Could not it have been drafted to say that the Secretary of State ''shall'' so direct, given that under amendment No. 188 the appointment would be made on the recommendation of the NHS Appointments Commission instead?
Let me make myself clear. The Secretary of State will delegate his powers of appointment to the special health authority, the NHS Appointments Commission. We chose the word ''may'' over ''shall'' to reflect the fact that appointments would be made by the NHS Appointments Commission on behalf of the Secretary of State, not by the Secretary of State himself. It is possible that another body could be set up to carry out a similar function, and if we used the word ''shall'' we could find ourselves locked into a pattern of appointing people in the same way as before. A degree of flexibility is therefore required.
I hope that I am making it clear that using ''may'' instead of ''shall''—we always have these debates in Standing Committee, and I could probably refer the hon. Gentleman to a debate that we had six months ago—does not change the substance of the Government's intention to delegate the function to the NHS Appointments Commission. The possibility that a future Secretary of State or Minister might decide that a different body should exercise the function on his behalf necessitates some flexibility but does not detract from that intention.
Will the Minister clarify that further? As I understand it, the purpose of the Government amendment is to get over the difficulty created by the reference to secondary legislation. I do not see why the word ''shall'' should not be used instead of ''may'', given that it would, as he said, firm up the Government's intention that the NHS Appointments Commission make such appointments. The hon. Member for Oxford, West and Abingdon made a good point.
I apologise to the hon. Gentleman if my explanation was clumsy and he was unable to follow it.
At the moment, the only body that can make the appointments is the NHS Appointments Commission, but that could change in future if the Secretary of State decided that a different entity should do it. If the Bill says that it ''shall'' be done by the NHS Appointments Commission, difficulties will arise if we want to revisit that. Moreover, a wider problem stems from the fact that the legal basis of the NHS Appointments Commission is in secondary, not primary, legislation, so the Bill should not contain a direct reference to it.
The ''may'' is not designed to give the Secretary of State the option on whether to delegate the power, but to leave open the question of whom he delegates it to. That is the difference between ''may'' and ''shall'' in this context. I hope that that has resolved the issue for the hon. Gentleman.
Would the Minister have been happy to accept amendment No. 188 were the NHS Appointments Commission to be contained in primary legislation? In other words, is this purely a technical issue to do with the place that it occupies in primary or secondary legislation? If not, I still do not understand his objection to substituting the word ''shall'' for ''may''.
It would certainly be easier to contemplate using the word ''shall'' in those circumstances, because the House would have established in primary legislation the legal framework for the appointment-making process to be located in a particular place. However, the House has not done that. The Secretary of State has used his powers under the 1977 Act to set up a special health authority to discharge those functions for him. Because that situation could easily change, it is best that we have a discretion as to who exercises the appointment-making function. That is what ''may'' rather than ''shall'' seeks to do. It does not seek to affect whether or not the Secretary of State delegates the function to the NHS Appointments Commission, because he will do that. The argument is partly about primary versus secondary legislation. That in turn affects the question of whom the Secretary of State can delegate the function to, which could change because it is not regulated by primary legislation.
Amendments Nos. 189 and 256 are more problematic. Amendment No. 189 would replace a majority of one on the council for those representing the needs of the public and health care providers with an equality of voices between those groups and the appointees of the regulatory bodies.
Amendment No. 256, which was tabled by the hon. Member for Oxford, West and Abingdon, would go a significant step further by giving the regulatory bodies a majority of one. I fundamentally question that approach. A key function of the council is to promote the interests of patients and other members of the public. Professor Kennedy was very clear about that. He said that
''it needs the widest involvement of professionals, of the principal employer and of the public. It cannot achieve its purpose if it is a system which is designed and operated solely by particular professionals for their professional peers. Nor can it achieve its purpose if it is solely a matter for employers within the NHS. An effective system of professional regulation must be owned collectively.''
That is what we are trying to do, but, as we made clear during the debate on clause 23 stand part, with a strong emphasis on what the council's main purpose should be.
Does the Minister accept that what he has just quoted—he accepted that he would necessarily quote selectively from such a bulky report, as we all have—referred to the system of regulation? That was the subject of his quote, not the council or even the council foreshadowed in the NHS plan. If it is read in context, it is a statement that the whole system of regulation needs to have the widest possible involvement. It might be thought to be slightly subverting the Kennedy report, as we all may be tempted to do, to imply that that is a direct response to amendment No. 109 or, particularly, to amendment No. 256.
With the greatest respect to the hon. Gentleman, I do not think that he is right. The UK council will be part of the regulatory firmament; it will not be separated from it. The point made by Professor Kennedy applies equally pertinently to the establishment of the UK council.
Does the Kennedy report refer anywhere to giving the council a majority of lay representatives? My recollection is that Kennedy was anxious throughout the report to make the point that the council should be collective, equal and at arm's length from regulators and Government.
The hon. Gentleman is right and there is no specific recommendation to the effect that the UK council should have a majority of one in the number of people who are not drawn from the regulatory bodies. We have looked at the spirit of the proposals in the report and laid our proposals before the Committee and the House to give effect to that. As I said in my opening comments, the Government believe that of all the alternatives on offer, the proposals in clause 23 are closest to the spirit of Professor Kennedy's report.
I have many things to think about over Christmas. I shall be the Minister on duty in the Department of Health, so I shall be busy, but of course we are happy to reflect on the matter and take account of the hon. Gentleman's arguments. I assure him that we shall do so. However, I believe strongly that the proposals before the Committee enjoy the support of the regulatory bodies, particularly those concerning composition of the council, although I know that the BMA has a slightly different view. The regulatory bodies are supportive of our proposals for membership of the council and they probably enjoy the widest consensus and support that it is possible to imagine. I accept that others will have a different view and we have heard some of them today.
To reinforce the point made by my hon. Friend the Member for North-East Hertfordshire, while the Minister is contemplating the matter over Christmas he should remember that the UK council exists ultimately to act in the interests of patients. A ministerial majority of one might be seen by many to create a conflict of interest. We are aiming to ensure that we deliver a health service that meets patients' requirements. The UK council will have an important role in meeting that objective, but its purpose will be to act in patients' interests. A ministerial majority of one contradicts that and I ask the Minster to consider that.
I agree that if that were the case, there would be a conflict, but it is not the case, because there will not be a ministerial majority of one. That is the point behind amendment No. 203, which I laboured at the beginning of my comments, but obviously not sufficiently for the hon. Gentleman to appreciate. There will not be a majority of ministerial appointments to the UK council. The hon. Gentleman has helpfully allowed me to make the point again and it has taken away one of the legs of the stool supporting his argument about equality of representation on the council. He made a fair point, but amendment No. 203 deals with it.
I accept what the Minister said, but that was not my argument. I am a member of the GMC and the BMA, but I did not see the briefing from the BMA before the Minister's comments, so I was not speaking from it when I made my point. However, I note that the BMA supports the regulatory bodies' call for equal membership between Government and regulatory body appointees, which suggests that the regulatory bodies support amendment No. 189.
If the Minister is basing his defence of a non-council-appointed majority and a Government-appointed system, albeit mediated through the NHS Appointments Commission, on the quotation from paragraph 75, that same argument could be used to remove the professional majority from all regulatory systems because the words are general and do not state—Professor Kennedy would have done so had he wanted to—that there should no longer be a professional majority or a majority appointed by the councils on such bodies.
I made the Government's position clear on the composition of the membership of the regulatory bodies during an earlier debate and I do not want to go round that track again. We believe in profession-led self-regulation and the UK council is not subtracting from that. We must look at the purpose and role of the council in relation to the clause that we have just agreed in which its principal function is stated to be promotion of the interests of patients and the public. We must ask ourselves who is best placed to perform that role and whether it is members of the regulatory bodies—I agree with the hon. Gentleman that they could be lay members—or members appointed to the council by the independent NHS Appointments Commission specifically to carry out that role. The question is simple and I think that the answer is obvious.
Amendment No. 204 removes any suspicion that the Secretary of State could intervene to tell the council how many members it could have. Paragraph 4 of the schedule also puts that beyond doubt. The council will have one member from each regulatory body and the number of other members appointed by the NHS Appointments Commission and the devolved administrations should always be one greater than the total number of regulatory body members. For example, when the council begins its work it will have 19 members: nine representatives of the regulatory bodies, three representatives chosen by the devolved administrations and seven members appointed by the NHS Appointments Commission.
The purpose of amendment No. 187 is to remove any concern that the Secretary of State would interfere in the running of the council. It is important to put beyond doubt the fact that the council has sole authority over staff appointments and their terms and conditions. That is the purpose of the amendment. I tabled it with related amendments Nos. 203, 204 and 205 to meet the concern of the regulatory bodies about the appointment of members to the council. It seems that the Opposition have also been listening to those concerns and we have come to a happy convergence of opinion.
Amendment No. 205, with amendment No. 187, tidies up paragraph 10(1) to reflect the removal of paragraph 10(2) and (3) by amendment No. 187, with which we all agree.
Amendment No. 255 would give the Council for Professions Supplementary to Medicine and its successor bodies the three representative members for which the hon. Member for North-East Hertfordshire called and I have tried to explain why we cannot accept the amendment.
Finally, the point at issue in amendment No. 226 is that of the regulations governing the appointment of the members of the council—for example, what conditions need to be fulfilled for appointments to be made. Every public body has some sort of provision on such issues. Typical headings include disqualification for appointment because of bankruptcy or having a criminal record, and termination of tenure of office for persistent absence and so on. They also include issues concerning declaration of interest and provision for people to stand aside from proceedings in which they have an interest.
I do not want to over-egg the pudding, but all Governments regularly make such regulations by statutory instrument under the negative resolution procedure. I have not heard an argument today for adopting a different approach in relation to the Council for the Regulation of Health Care Professionals, but there is an argument—I do not want to place heavy emphasis on it—about inevitable delay if the affirmative resolution procedure is used.
The hon. Member for Oxford, West and Abingdon said that he might want to press his amendment to a vote and I understand that. I said during an earlier debate along similar lines that the issue is not one to die in the ditch for, but the hon. Gentleman apparently wants to do that. However, given the technical nature of the issues covered, I would query whether a convincing case could be made for the affirmative resolution procedure.
I shall reply to the Minister's comments one by one. It is welcome that the Minister has tabled amendment No. 203, which covers the ground of the appointment of lay members by the NHS Appointments Commission. I am prepared to accept his assurance that the intention is to delegate that responsibility to the commission, so amendment No. 188 has done its work because it has prompted a Government amendment.
In respect of amendment No. 187, I am pleased that the Minister has agreed that the appointments of staff are not to be directed by the Government. That is also welcome. However, the thorny issue remaining is the equality of numbers in membership of the council between lay representative and regulatory bodies. The Minister usefully promised that, over Christmas, he would spend his time in Richmond house mulling over that—I hope that he gets a mince pie too. On that basis, I will not press the amendment, or seek a Division on any amendment today, but will, on Report, return to the question of equality of numbers on the commission and will wait to hear from the Minister before deciding whether to press for the regulation-making powers to be dealt with by the affirmative resolution procedure. Those two issues are linked.
It is important to state that amendment No. 226 on the affirmative resolution procedure was ''more'' of an issue to die in a ditch for, rather than ''the'' issue. I hope that my remarks were clear because I would not want it to be thought that I had invested more in this amendment than in others that I consider to be more important. Secondary legislation is introduced on such a large scale that there is a need for increased scrutiny and it is appropriate for Opposition Members to probe the issues. Later, it will be interesting to see what happens to the amendment. Often, many issues relating to secondary legislation on the regulation of the health professions are dealt with before delegated legislation is introduced. That is important because the Government may not get it right the first time.
I will not add greatly to the discussion about equality of numbers, which relates to amendments Nos. 189 and 256, or to what the hon. Member for North-East Hertfordshire said. I agreed with much of what he said and the way that he said it. The Government's difficulty in respect of the Kennedy report is also ours. Hon. Members have already said that we do not have to endorse the report simply because it exists. However good the report is, things can be read both ways.
I am reassured by the Minister's repetition of his view that the councils directly regulating the professions will continue to be a form of professional self-regulation. That is his strongest point; he need not pray in aid the paragraph that he quoted from the Kennedy report—he is an hon. Member and has given us an assurance. The part that he quoted stated:
which I assumed to be the system of regulation—
''cannot achieve its purpose if it is a system which is designed and operated solely by particular professionals''—
''for their professional peers.''
I do not think that when it was drafted it was expected that the report would be scrutinised in the way in which we scrutinise legislation, so it would be of only limited value to go into that in greater detail. The danger of extrapolating from those sorts of comments is that it might imply Government support for a wider change from the principle of professional self-regulation, as exemplified—we need not get too carried away about this—by the majority on those councils, because it is more than simply a numbers game. I look forward to rejoining this debate at later stages.
Finally, with regard to amendment No. 255, I am pleased that I was able to pre-empt some of the Minister's points, otherwise it might have sounded as if he was pointing them out to me for the first time. If there is a discussion in the council about an important matter that generally comes up only in relation to the regulation of the General Medical Council or the General Dental Council, the majority of members on the council will not have had direct experience of that issue. Therefore, the danger is that if policy is made by a body that has no experience in dealing with such matters, something will be lost in the formulation of that policy. To a certain extent that is one of the issues that amendment No. 255 opens up. As I accepted in my opening remarks, there is no perfect way, so I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments made:— No. 203, in page 73, line 13, at end insert—
(2) If he does so, the 1977 Act has effect as if—
(a) the directions were directions of the Secretary of State under section 16D of that Act, and, accordingly,
(b) the function were exercisable by the Special Health Authority under section 16D.''.
No. 204, in page 73, line 16, leave out from ''including'' to ''any'' in line 17.
No. 205, in page 74, line 6, leave out ''Subject to sub-paragraphs (2) and (3),''.
No. 187, in page 74, leave out lines 9 to 13.—[Mr. Hutton.]
I beg to move amendment No. 227, in page 74, leave out line 16.
This is a probing amendment designed to raise the question of the extent to which it is proposed that work should be undertaken in house, or contracted out. Its effect would be to require all work to be contracted out, which I do not suppose the Government would wish to do, but we would like to know what work the Government envisage would be outsourced. Would it be investigative work or opinion research? Will the Minister also explain whether a regulatory body could be asked to help investigate another?
Page 74, line 16, states:
''Delegation of functions
11 (1) The Council may arrange for the discharge of any of its functions by —
(a) a committee, sub-committee, member or employees of the Council, or
(b) any other person.''
I have chosen to delete line 16, but I could equally have deleted line 17. What I really want to get at is what the Council—in the Government's view—will do in terms of the delegation of the discharge of its functions. What sort of work would ''any other person'' be expected to do?
I take it from the hon. Gentleman's remarks that this is essentially a probing amendment, and he is trying to extract from me an assessment of under what circumstances the powers of delegation would be exercised. Let me explain why I think we need this provision in the Bill in the first place. It is a pretty standard provision in relation to bodies of this kind, which allows the council to exercise its discretion as to what work it might want to delegate to others within the organisation and outside. It clearly allows the council to go about its business efficiently and effectively, taking advantage of that type of opportunity when it thinks it appropriate. We therefore want to give the council the powers, tools and opportunities to go about its business effectively that we would give to any similar body. It is for the council to decide if, when and how its powers are used, and I would not want to take that freedom away.
The answer to the question put by the hon. Member for North-East Hertfordshire is that this is a matter for the council to decide. We have had a long argument about independence from the Government, and he is asking me to say when the council might want to exercise its discretion to delegate. Hello? We cannot join those arguments together and present them as a whole. The important point is for the council to have discretion as to when and under what circumstances it might want to exercise that power. It would be for the council to decide who, what, when and how such a power was exercised. ''Who?'' might include, for example, academic bodies with expertise in this area from which the council will want to commission pieces of research.
The issue of committees and sub-committees relates to the good management of the council. Many regulatory bodies have committees to which they delegate responsibilities and powers, and those are matters for the council to decide. I cannot give the hon. Gentleman anything more concrete than that, given that we expect the council to act at an arm's length distance from Ministers.
Will the Minister deal with two points of detail? First, would it be possible for the council to say to one of the bodies that it is regulating, for example the chiropractors: ''We should like you to help us investigate this complaint against the nurses''? In the case of the police, the use of one police force to investigate another has always been subject to criticism. I was wondering whether the provision would allow bodies to be used in that way. Secondly, will it be possible to use outside investigators such as private inquiry agents to assist in a complaint investigation?
The hon. Gentleman is describing fitness-to-practice issues, which are not within the council's remit because of clause 24(3). The council would not have the powers to investigate individual fitness-to-practice cases. [Interruption.] Under clause 26, the Secretary of State would have the opportunity to establish a scheme whereby the council could deal with maladministration complaints through regulations, and this issue might arise in that context. These are, however, matters for the council to determine.
May I seek some information from the Minister? I notice that in schedule 7, paragraph 11(1)(b)—''any other person''—allows the council to commission work from outside bodies and individuals, which will, if one examines paragraph 11(2), have to be paid for. The Secretary of State will provide funding for the body, but would there be a problem if funding goes to the private sector to commission work, which does not necessarily come cheaply? The budget will presumably be fixed, not elastic. Does the Minister envisage the workings of the council's being hampered by its inability to commission an adequate amount of work from ''any other person'' because of its financial constraints?
There is no such thing as a free lunch. All public bodies must operate within the resources that have been allocated to them. Yes, it is not cheap to commission pieces of specialist work from private sector bodies, or indeed any bodies outside government. It is right—I wish that I had referred to this point when the hon. Member for Westbury asked about the council's costs—to draw the Committee's attention to our intention to fund the council through the Department of Health, which will not entail passing on costs to the GMC, the General Dental Council or the General Optical Council. The council will be funded centrally, and it must operate within its budget. The way in which it chooses to discharge its functions or delegate and commission outside work must be compatible with its budget. There is no blank cheque, but by the same token the council must be properly resourced so that it can go about its jobs effectively. Like all of us in our daily lives, it must balance what it would like with what it has to spend. The council will be properly resourced, but how it decides to use its resources will be its concern, which accords with the spirit of operating at arm's length from the Government.
It seems that clause 26, which the Minister mentioned, provides the council with an investigatory role. It will, for example, be making payments to persons in connection with investigations. It is right that such investigations are into administrative matters rather than fitness-to-practice issues. Given that people will be doing investigatory work, the amendment is designed to find out who could do that work and whether it is right that one of the regulatory bodies, such as the chiropractors, could be asked to investigate maladministration by, for example, the Nursing and Midwifery Council. Will outside inquiry agents be used? Alternatively, am I missing the point and something else is being thought of here?
With respect to the hon. Gentleman, he is asking me to put myself in the council's position and tell the Committee how it will delegate its powers to outside bodies, which is not a position that I want to occupy, and I therefore decline to give him an answer. The hypothetical situation of the council asking the chiropractors to investigate complaints about the nurses strikes me as slightly eccentric, and I am unsure whether there is sense or logic behind that proposition. In principle, these issues are a matter for the council, which will have the widest possible powers of delegation. That is compatible with the way in which other bodies have been set up in the past. If the hon. Gentleman would like a note explaining how, if at all, similar bodies have used these powers, I am happy to provide that for him.
To return to my earlier intervention, will the Minister clarify his valid point that all of us, including the Government, the Department of Health and the council, must live within our means? On the question that I raised about ''any other person'', I have suddenly realised that the Secretary of State can make loans to the council. Does that not undermine the Minister's claim that the council will be stuck within strict limits for its finances? If it needs more money to commission outside work, it can presumably go the Secretary of State for a loan.
The hon. Gentleman must have unique access to non-repayable loans, and he must tell me where he gets them.
I am very grateful for that definition. I was looking forward to discussing with the hon. Gentleman whether loans are repayable—of course they are—and whether they must be paid from existing budgets. However, we shall return to that point in a moment. I am grateful for your indulgence, Miss Widdecombe, and I shall not try your patience any longer. This would probably be a good time for me to sit down.
With this it will be convenient to discuss the following amendments: No. 229, in page 74, line 32, leave out sub-paragraph (2).
No. 230, in page 74, line 37, leave out sub-paragraph (4).
No. 231, in page 74, line 41, leave out 'and (4)'.
No. 232, in page 75, line 1, leave out sub-paragraphs (7), (8) and (9).
The purpose of the amendment is to remove the power of the Secretary of State to attach conditions to the payments that he makes to the council. The amendment is probing. What is the purpose of the conditions that are referred to in the schedule? The amendment would make the council as independent and undirected by the Secretary of State as possible. I should be grateful if the Minister would explain exactly what conditions he has in mind in relation to money for the council.
Amendment No. 229 is another probing amendment and would delete paragraph 13(2) from the schedule. Why is it necessary for an appropriate authority, such as the National Assembly for Wales, to have the power to give money to the council, subject to conditions? The appropriate authorities are the National Assembly for Wales, Scottish Ministers and the Department of Health, Social Services and Public Safety in Northern Ireland.
Amendments Nos. 230 and 231 would delete paragraph 13(4), which relates to loans that may be determined by the various authorities; the amendments are directed at the conditional nature of the loans. Amendment No. 232 deletes sub-paragraphs (7), (8) and (9). Sub-paragraph (7) gives the Secretary of State the power to give directions as to the applications of funds, (8) gives the appropriate authority the power to give directions as to the application of funds and (9) requires the council to comply with those directions.
Do such conditions simply relate to the repayment of money and the way in which the Bill broadly applies so as to ensure no impropriety, or are they a direction that may have an impact on the council's independence? I am interested to hear what the Minister has in mind in respect of conditionality.
Before the Minister was rightly stopped by you, Miss Widdecombe, he was about to give us an elementary economics lesson on the fact that borrowed money must be repaid. I understand that, but if one borrows money, one normally repays it gradually in relatively small amounts each month, or according to whatever the terms and conditions happen to be. Some loans are made on the condition that there is no need to start repaying them for a significant period. Given the creative accounting of this Government, one could anticipate a number of sleights of hand to lend money, which would not necessarily be repaid in the immediate future. That could help a body and would, in effect, increase its funding so that it could fulfil its duties more easily by, for example, commissioning work from outside persons or organisations. The provisions in this part of the schedule lay down the skeleton powers to make loans and set down the conditions for repayment. One condition, unless the Minister corrects me, could be that a loan does not have to be repaid, or that it could be repaid at a date very far in the future, until which point it would, in effect, be interest-free and non-repayable. Is that accurate or is there some way in which, in theory, that could not happen?
Perhaps I should explain what we are trying to do here, and what the effect of the amendments would be. I understand that some are probing, but I am not sure whether all of them are.
The amendments would make it impossible for the devolved administrations to make any payments or loans to the council. It is, of course, a UK council, and provision for that must be in the schedule. Amendment No. 231 is a consequential amendment following on from amendment No. 230, which, with amendment No. 228, would prevent the Secretary of State from placing any conditions on the use of those funds.
The hon. Gentleman has asked me various questions, but I think that he essentially wants to know why such powers should be included in the Bill. We have been mindful throughout the debate, in preparing the Bill and in tabling amendments to it, of the need to meet the concerns of hon. Members and the regulatory bodies on the drawing of the line between the Secretary of State's proper accountability to this place for the use of public funds and the operational independence of the UK council so that it can get on and do its job without being subjected to unfair accusations that it is doing Ministers' bidding.
No gain or benefit would flow from the legislation if we became enmeshed in such arguments 18 months or two years down the track. The point of the UK council is to add value to the system of professionally led self-regulation, not to subtract from it, and as a direct result to ensure greater public confidence in how the system works. We would be pretty stupid if we engineered things so that we not only did not achieve that, but added to public concerns. We have tried throughout to ensure that the balance is redrawn in the right place. We want to deal with the concerns of the regulatory bodies, hon. Members and others, and to ensure that the independence of the UK council is properly enshrined in the Bill.
Paragraph 13 of the schedule is designed to enable the Secretary of State to set conditions to the exercise of his powers, if he chooses—he is not required to do so—to ensure, for example, that there is a proper audit trail and accountability in the council's use of public money. We are keen to deal with fraud. The Secretary of State might want to ensure that proper arrangements are in place in the council for dealing with such issues. In such a case the Secretary of State could, if he felt it necessary, set conditions relating to the powers to make grants and loans that he has. This is not, however, designed as some back-door way for the Secretary of State to have his fingertips on every decision of the UK council. That would be counterproductive. We have tried to ensure in the Bill that the Secretary of State can never be accused of so interfering with the council's work.
Paragraph 13 contains essential housekeeping or value-for-money provisions. They are commonly used, and were used extensively by the previous Conservative Administration in relation to other organisations to ensure proper public accountability. They do not go any further than that.
The hon. Member for West Chelmsford got very excited about loans. On this rare occasion, there was an element of absurdity in his argument. [Interruption.] I am afraid so. I say that with the greatest reluctance, but I thought that he was labouring a particular point about loans. Loans come in all shapes and sizes. The Department is not generally in favour of non-repayable loans, because they are not a sensible idea. The argument about creative accountancy was similar. I do not think that there is any suggestion that we might have to resort to non-repayable loans as a device to ensure that the UK council is properly resourced. We have other means of making sure that that is so.
In my experience as a Minister, all the loans that I have ever known of have involved repayment. If the hon. Gentleman, as I said earlier—
It being One o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.
Adjourned till this day at half-past Four o'clock.