Clause 25 - Regulatory bodies and the Council

NHS Reform and Health Care Professions Bill – in a Public Bill Committee at 5:00 pm on 11th December 2001.

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Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Health) 5:00 pm, 11th December 2001

I beg to move amendment No. 238, in page 30, line 37, after ''functions'', insert—

''take all reasonable steps to''.

Photo of Mr Alan Hurst Mr Alan Hurst Labour, Braintree

With this it will be convenient to take the following amendments: No. 186, in page 30, line 39, leave out subsection (2) and insert—

''(2) If, after consulting the regulatory body concerned, the Council concludes that—

(a) it is necessary for the protection of members of the public for a regulatory body to make or amend a rule (under any power the body has to do so); and

(b) the regulatory body has not made or amended the rule and will not do so

the Council may if it thinks fit lay a special report before each House of Parliament.''.

No. 237, in page 30, line 43, leave out subsections (3), (4), (5), (6) and (7).

Government amendments Nos. 247 and 248.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Health)

The amendments are important. The first in the group, amendment No. 238, is not, perhaps, the most important, although it is quite important. Amendment No. 186 is the most significant.

Amendment No. 238 would require a body to

''take all reasonable steps to'' co-operate with the council. Clause 25(1) states:

''Each regulatory body must in the exercise of its functions co-operate with the Council.''

My understanding is that ''co-operate'' there is intended to be within the bracket of reasonableness. Can the Minister confirm that reasonableness is implied in the duty to co-operate and that it is not an absolute duty, but one that is limited in that way? I imagine that that is how a court would look at it.

Amendment No. 186 is the main amendment, and amendment No. 237 is consequential upon it. Amendment No. 186 is proposed on the basis of concerns raised by the statutory regulators of the eight relevant bodies. Others also support it. The presidents of the various regulatory and shadow regulatory bodies make it clear that they strongly support the conclusions of the Bristol royal infirmary inquiry. They believe that the principle of independence from Government is seriously undermined by the proposal in clause 25(2) that a new council, a non-ministerial Government Department, would be able to direct

regulators to change their statutory rules on important matters even if regulators believed it to be against the public interest. That concern is even greater because that imbalance, as I would put it, between the lay membership and membership from the regulatory bodies is also proposed.

The background to amendment No. 186 is the concern that the various statutory regulators have set out. Clause 25 gives the Council for the Regulation of Health Care Professionals wide powers to direct each statutory regulator on how to do its job. It dilutes the principle that each regulatory body should be directly accountable to Parliament.

Although the words ''recommend'' and ''encourage'' are used quite widely, the power of direction will apply to all matters relating to rules that require Privy Council approval. In effect, that means almost every significant policy area. It is not framed as a reserve power, which the Minister called it earlier on in passing, nor limited in any way to exceptional circumstances. If it were, we would expect that to be defined in the Bill. Even where a regulator believes that to make a requested change will be against the public interest, it will be required to conform with the CRHP directions. The various statutory regulators believe that only Parliament should be able to make that requirement.

Amendment No. 186 has been tabled with the support of the statutory regulators. It is also supported by the BMA, which has said that it is opposed to the substantial powers in the Bill that would enable the council to direct a regulatory body to change its rules on many important policy decisions, even when that body believes that it is not in patients' best interests. The BMA has worked successfully with the GMC to modernise and streamline its structures, and supports this amendment.

We will come on to the Government amendments later, but Government amendment No. 247 states that the Secretary of State ''shall'', not ''may'', make provision in regulations as to the procedure for giving directions to a regulatory body.

Amendment No. 248 states that the regulations must require the council to consult a professional body before giving it directions. That is all well and good, but it is the power of direction itself that undermines the independence of the council. The amendment is drafted in line with the way in which the health ombudsman works; it requires the laying before Parliament of a report, which can then be acted upon. That is a very solid way of dealing with matters, which has worked in other contexts.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon 5:15 pm, 11th December 2001

I have added my name to amendment No. 187. I do not have a huge amount to add to the reasonable points argued by the hon. Member for North-East Hertfordshire. In discussions on earlier clauses I told the Minister that this was a crucial area, not only because of the issue that we are debating—the power of the council to direct regulatory bodies, which, as I shall argue, runs contrary to the theme of this part of the Bill—but because of the Government's resistance so far of the principle that there should be parity between the

council members appointed by the Government and those appointed by the regulatory bodies, or a majority for the latter.

The use of the terms ''lay'' and ''professional'' is unhelpful in this sense, because I see no reason why the regulatory bodies should not appoint a lay member to the council. The purpose is to represent the council, not the profession. Nevertheless, I believe that the idea of professional self-regulation is understood to mean a majority in the sense of people appointed by the regulatory bodies. The Government's current resistance to such a majority raises the stakes in the debate.

Exactly as the hon. Member for North-East Hertfordshire says, the power does appear to be a strong power, and does not appear, at least on the face of the Bill, to be a reserve power. I know that the Minister can hardly wait to get to his feet to explain that it will be a reserve power. Before he does so, I should like to point out to him the curious position of the word ''direct'' in the Bill. Clause 23(2)(a) talks about the promotion of the interests of the patients—not seeking to ensure those interests, but simply the promotion of best practice. Clause 23(2)(c) says that one of the council's functions is to encourage regulatory bodies to conform to principles relating to good professional self-regulation, and clause 23(2)(d) says that another is to ''promote co-operation''. The choice of those words, which has my support, is based on the feelings behind those words. Similarly, clause 24(2)(c) says that the council may

''recommend to a regulatory body changes to the way in which it performs any of its functions.''

There are other areas where the terms are not as harsh as ''to direct'', and clearly the statement that the council

''may direct a regulatory body to make rules'', as in clause 25(2), significantly changes what that means. As has been said, the rules—rules that must be approved by the Privy Council—would cover almost every area of a regulatory council's work, at least according to briefings that I have seen from some regulatory bodies.

It seems to me that the Government's amendments seek to reduce the sense of strength of that clause by changing the word ''may'' to ''shall'' when it comes to the Secretary of State's making provision in regulations. That is a curious change of position as the Minister has previously resisted, for reasons that he has given in each individual case, the changing of ''mays'' to ''shalls'' where they are, arguably, protective of the over-regulation of the profession.

The second Government amendment is also intended to be reassuring. However, I will need some persuasion before I withdraw my support for amendment No. 186.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Health)

Does the hon. Gentleman agree that the health service commissioner's power to make special reports to both Houses of Parliament, on which the amendment is based, has worked well and is seen as almost the most powerful tool in bringing matters to

a head? Such a provision has the advantage of leaving Parliament's accountability intact, while still being a pretty strong measure.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon

I strongly agree. If a clash between one of the regulatory bodies performing its functions as it saw fit and the council's function of protecting the public led to a direction being issued under the Bill, that is something that Parliament should know about. The amendment would put the onus on the Government to intervene through secondary legislation, or whatever is required, to bring about a resolution.

It is in the nature of such bodies that individual cases are discussed, if not behind closed doors, behind doors that are some way from the House, and I would be alarmed if I thought that arm-twisting, even of a statutory nature, was being applied to a regulatory body without the House being aware of it. This is an important issue for the public. The Government may pray that in aid of their desire to ensure that there are adequate powers of direction. On the contrary, however, it strengthens the case made by the movers of the amendment that Parliament should be made aware of any stand-off between a regulatory body and the council—especially given the Government's view that council members appointed by the regulatory bodies should not be in the majority.

Photo of Simon Burns Simon Burns Shadow Spokesperson (Health)

I do not intend to detain the Committee for long. I support the amendments and agree with the comments of my hon. Friend the Member for North-East Hertfordshire and the hon. Member for Oxford, West and Abingdon.

Clause 23, which lays out the functions of the council, is couched in eminently reasonable, non-confrontational terms, using words such as ''encourage''. Clause 25 uses rather harsh language to give the council teeth. That may not be in the best interests of the working of the system once the Bill is enacted.

Before the Minister rejects the amendments out of hand, I urge him to give genuine consideration to amendment No. 186 in particular. Clause 25 takes a sledgehammer to crack a nut. I am not convinced that such harsh language is necessary, and the Government should be prepared to consider toning it down. We do not want the system to fail to achieve the Government's aims, but we want it to achieve them in a more conciliatory and reasonable way.

Photo of Andrew Murrison Andrew Murrison Conservative, Westbury

I support amendments Nos. 186 and 238. The question is not simply one of language, although language is important. We want to encourage a constructive dialogue between the regulatory bodies and the council. Of course, the amendments are very much linked. In the event of a regulatory body's failing to take all reasonable steps, the commission would have recourse to Parliament under amendment No. 238, and I welcome that fact.

In the light of the Kennedy report and other such developments, we need to recognise the good work of the regulatory bodies in putting their own house in order. I agree with my hon. Friend that clause 25 looks a little harsh in the light of those improvements.

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health) 5:30 pm, 11th December 2001

Two issues arise from the amendments. The first, which arises from amendment No. 238, concerns the way in which we envisage that the duty to co-operate will apply. The hon. Member for North-East Hertfordshire is right: in deciding whether a regulatory body has complied with its duty to co-operate, a court will have to take into account the question of reasonableness. In that regard, there is not a great deal between us. He is right to say that that principle is implied in the Bill, and that is certainly how we expect the duty to apply.

The second issue relates to the heart of the matter—the council's relationship with the regulatory bodies, and the nature and purpose of its existence. Why is it there, what is it designed to achieve and what change will it ultimately be able to bring about? I have listened carefully to the arguments of Opposition Members and of the regulatory bodies, and I know that members of the Committee received copies of correspondence from Professor Wilson, who has acted as advocate for the regulatory bodies in the past few days. He and I have discussed the issues in some detail.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon

Is the Minister saying that all members of the Committee have received a copy of that correspondence? I have not seen a copy of it.

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

My understanding was that all members of the Committee had received a copy. I will ensure that the correspondence is available to the hon. Gentleman and to others, because it is very important.

The issue is a fundamental, full-on question about the role of the council. I agree entirely with many of the points that Conservative Members made about the way in which this part of the Bill should work, and the distance between us is probably not as great as has been suggested this afternoon. In particular, I was struck by the comments of the hon. Member for West Chelmsford (Mr. Burns) about the need to conciliate and to avoid harshness. I agree that there is such a need, but his reading of the clause is not mine. I do not consider it harsh; nor has it been worded in anything other than a spirit of conciliation, particularly in light of amendments Nos. 247 and 248, which we shall discuss in a moment. A process of conciliation is precisely what we envisage will apply in such cases. I also agree with the hon. Member for Westbury about the need to encourage constructive dialogue. That will be reflected in the way in which the council goes about its business.

However, I disagree with Opposition Members' suggestion that clause 25(2), which is at the heart of the matter, is open-ended. No one who reads it could possibly construe it as having been designed to be open-ended. It makes it clear that, before taking action, the council must be satisfied

''that it would be desirable to do so for the protection of members of the public''.

That is a clear steer that the provision in no way constitutes a right to roam across the regulatory landscape at will, interfering in the rule-making freedoms of regulatory bodies. It is a specifically focused power, which we have drafted as best we can,

for dealing with what can best be described as extreme cases where a majority of the council believe that action must be taken to protect members of the public. That is an important caveat. If there were no such qualification, I would agree with the hon. Member for Westbury that the provision constituted a right to roam across the rules of regulatory bodies, but there is such a qualification. We would never include a provision that was designed to give the council such far-reaching powers.

In setting up the council, it is very important that we give it only the powers that it needs to do the job that we think needs to be done. That is what both clause 25(2) and clause 27(2) seek to do in relation to public interest in the right of appeal to the High Court in cases of unduly lenient decisions by a regulatory body. Those two powers are specific and are designed to operate in limited circumstances. During an earlier debate, I was asked in how many cases we envisaged such powers being exercised. I should be disappointed if there were any. We look to the regulatory bodies to safeguard the public properly, but there have been cases—I shall refer to one in due course—where there was substantial doubt as to whether that happened. In the limited number of cases where a serious issue affects public safety, the council is undoubtedly the right body to take a step forward by ensuring that the rules are tightened.

I understand perfectly the concerns expressed by the regulatory bodies, and we have tried to meet them half way through the amendments that we tabled today. We cannot meet them 100 per cent., however, because we believe that the council should have this last-ditch, last resort power. In that regard, there is a clear difference between Government and Opposition members of the Committee. If we accept the amendment tabled by the hon. Member for North-East Hertfordshire, there is a danger that we will create a toothless tiger, and there is no point in wasting the time of this place by doing that.

Photo of John Baron John Baron Conservative, Billericay

Does the Minister accept the sweeping generalisation that only Parliament should be able to direct regulators on fundamental matters? We seem to be creating a slight conflict of interest. It is accepted that we must give the council sufficient powers to carry out its functions, but there is a fine line to be drawn. At the end of the day, this is a fundamental issue and Parliament should be the only body to direct regulators in the performance of their functions.

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

That is a very interesting argument, but it is not the present position. At the moment, Parliament cannot act in that way and the matter is essentially one for the Privy Council, so the hon. Gentleman's proposal would require a substantial change in current arrangements for approving rules. However, there is certainly an argument to be made about the role of Parliament, and I shall return to it in a moment, as I am pretty much on the hon. Gentleman's side. That is why the Bill has made it clear that the council will report to Parliament.

In moving his amendment, the hon. Member for North-East Hertfordshire expressed concern about the role of Parliament where the council and the regulatory body are in conflict over rules and the council feels the need to exercise its powers. I hope that that situation never arises and it will be a huge disappointment if it ever does, but there would be every opportunity for Parliament to express its opinion. It could do so in a number of ways, including through the Select Committee on Health. Of course, the council itself will report to Parliament. If such a terrible situation arose, I would be gobsmacked if it were not the subject of detailed commentary in the council's report to both Houses of Parliament.

It is perfectly reasonable for us to have this argument, but the alternative prescription is not adequate. It would leave the status of the report in no man's land—in a hinterland in which there is no absolute clarity about the role of Parliament and what would happen in such cases.

There is another important point that we must not lose sight of. Even if the power under clause 25(2) were exercised and the council recommended a change in the rules with which the regulatory body must comply, such a change would have to be approved by the Privy Council. The council itself will not write the rules of the regulatory body. The regulatory body must give effect to the directions that it receives and the Privy Council must ultimately decide whether to approve rule changes. There has been some misunderstanding of that.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Health)

To what extent does the Privy Council have discretion? If the recommendation is made, surely that is the end of it.

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

No, I think not. The Privy Council has absolute discretion to accept, or not accept, rule changes. It is not as cut and dried as some of the hon. Gentleman's arguments have suggested.

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

I will in a second, but it is important to confirm that the UK council will not be writing the rules of the regulatory bodies.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Health)

Can the Minister give an example of a similar situation where the Privy Council has overturned a recommendation?

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

There has never been a scenario such as that which the hon. Gentleman is countenancing. He is not a member of the Privy Council so he has not had the experience of seeing what happens. What happens is truly weird—I will not go into that because I would be out of order.

The Privy Council acts, and reaches its decisions, on the advice of Ministers. It is possible that a dispute could be resolved in that way. There may be arguments and different views, but the Privy Council acts on the advice of Ministers so it would be a mistake to assume that everything will be decided in accordance with the work that the hon. Gentleman described—it may not

be so decided. We are now talking in the language of hypotheticals. However, the constitutional position is clear: the Privy Council will decide whether to approve the recommendation of a rule change that arrives from a regulatory body, even when it is acting under a direction received from the UK council.

That may have been a rather tortuous constitutional seminar, but it describes the position. It is a mistake to construe 25(2) as giving a direct power to the council to change the rules of a regulatory body. We have come to the view that the council should have the statutory power to require a change because we want the council to be an effective body, not an overbearing one. Professor Kennedy had no doubt that the council should have powers to ensure that it was able to carry out its functions effectively. He says:

''We believe that the Council should have statutory powers to require the various bodies to act in the interests of patients and conform to principles of good regulation.''

I well understand the argument of the hon. Member for Oxford, West and Abingdon and others that simply because Professor Kennedy has expressed a view does not mean that we must accept it—of course we should not. However, he has given us a convincing argument. I say that not to give the UK council the powers of the Nazi stormtroopers, but to reserve a baseline power so that public interest is served. The amendment tabled by the hon. Member for North-East Hertfordshire would not give us the opportunity to ensure that change was effected.

In the Government amendments, I have tried to make it clear that the Secretary of State will be able to make regulations about the procedure to be followed when the council directs the regulatory body to make a rule change. Government amendment No. 248 sets out what the regulations must cover and specifies that the process must include a period of consultation. According to any principle of fair play and even-handedness, it would be inconceivable not to have consultation preceding a council's final decision on whether it wanted to exercise its powers.

The hon. Member for Oxford, West and Abingdon made the good debating point that the amendment was the only Government amendment that he could remember that converted the word ''may'' to ''shall''; that is usually the prerogative of those in opposition, but I am happy to establish a precedent for regulatory-making powers. We believe that it is important to send a clear and obvious signal to the regulatory bodies, and the wider public, that we demand that the council acts in a fair and even-handed way. The amendment will ensure that that intention, which has always underpinned our thinking on the issue, is included in the Bill. We have decided to table it as a result of conversation with the regulatory bodies. I know that they would have liked us to go further, but we were unable to do so because it is important that the council has the reserve power as a last resort.

I may not have persuaded Opposition Members that it is necessary for the council to have the power, but I hope, at least, that I have reassured them that we considered the arguments carefully. We are amending the Bill to try to clarify the procedures that we expect to be followed and we have made it abundantly

clear--I have tried hard to do so this afternoon--that the power in clause 25(2) is a reserve power to be used only when there is no alternative.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon 5:45 pm, 11th December 2001

I have plenty to say in response to the Minister. However, he said that he might mention a case or cite an example and I thought that he was coming to the end of his comments without doing so. Examples would be useful to focus our minds on the issues.

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

There is an example of a regulatory body taking a decision about a medical practitioner who was distributing paedophile information. It decided not to suspend him from the register or to discipline him because he was doing that in his own time. That is the type of decision that justifies our proposal. I accept that clause 27 provides appeal rights, but there may be cases that give rise to concern about the rules of a regulatory body and would require and perhaps justify the exercise of such a power.

I can tell from the expressions on Opposition Members' faces that my argument might not have been 100 per cent. successful, but we have thought carefully about the right way of taking the legislation forward and I hope that the record of our proceedings today will show the Government's intentions on clause 25(2) and our strong desire that the process should be conciliation, discussion and consultation in the first instance. That process will be reinforced by the amendments that we tabled today. In the last resort, the Committee and the House must decide whether the UK council should have the power to require a rule change to be submitted to the Privy Council.

Photo of Andrew Murrison Andrew Murrison Conservative, Westbury

I should like to clarify one issue. The Minister cited a specific case, which sounded awful. Does he believe that the regulatory bodies might not give the right steer in some cases and that the council might be able to steer them in a more appropriate direction?

I want to be clear about an important matter that has not yet been aired. The anecdotal experience of the General Medical Council, for example, is that the professionals on the council tend to be more censorious than the lay people serving alongside them. The Minister should not presume that the council will necessarily take a more censorious view than the regulatory bodies. That is important and he may wish to note the point.

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

I agree with the hon. Gentleman. I am not making any assumptions about how the council will approach the task. I am trying to place on the record the Government's intention in making the proposal: to give the council, as a last resort, the power to require a rule change by the regulatory body, subject to the final approval of the Privy Council. I am not making a judgment about the attitude of mind that lay or professional members will bring to bear. My strong hope is that there will be a clear consensus that that is the right thing to do before the council goes down that path. However, ultimately, they are matters for the

council. If we were to deny the council even the opportunity to take that road if it thought that desirable to protect the public, we would disarm the council and remove a last-ditch power without which there would be a substantial risk that it would not achieve the ambitious objectives that we have set for it.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon

I am not sure that I remember the case cited by the Minister, but let us suppose that the council was concerned about a similar case in which a regulatory body during its preliminary proceedings decided not to take the case forward. I understand that preliminary proceedings are not necessarily conducted in public because there may be unfounded allegations and people must be protected from libel. Does the Minister believe that as the council has a duty to protect the public and seeing this power, it might decide that it wants a regulatory body to take forward some of the cases that it had decided not to take forward? That would usurp the role of the regulatory bodies.

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

No; I do not. Nothing in the Bill would give the council that opportunity and it is certainly not what we expect it to do. I made it clear earlier that I do not expect the UK council to interfere in every fitness-to-practise decision taken by the regulatory bodies. The proposal is not designed for that and we do not envisage the council doing that. It might want to exercise its powers under clause 25(2), but, with respect to the hon. Gentleman, that is a dead end and it is not worth spending the Committee's time discussing it because I will not take the decisions. I have absolutely no intention of substituting my judgment for the eventual decision-making processes of the UK council. It is fruitless to hypothesise on that today.

Photo of John Baron John Baron Conservative, Billericay

I take the Minister's point, but is he not worried that when the UK council can direct regulators on all matters pertaining to the Privy Council, that brings into doubt the independence of the regulatory bodies—something that the Kennedy report emphasised? It is a question of balance, but when, as a last resort, the UK council can direct the regulatory bodies, that must bring their independence into doubt. Does the Minister agree?

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

I understood that the hon. Gentleman was arguing for Parliament to be able to do that. I am not entirely sure that there is a distinction between who does it in terms of the independence of the regulatory bodies. Whether Parliament or the UK council has the reserve power, I do not believe that it fundamentally affects the independence of the regulatory bodies. We are determined to ensure that they remain professionally led, self-regulatory bodies. The fundamental question for the hon. Gentleman and, I suspect, his hon. Friends, is whether there should be someone with a reserve power to direct such a rule change, if it is clearly necessary and desirable to do so to protect the public. Our view is that accountability should properly be with the UK council, which in turn reports to Parliament. I accept that there is a wider debate about the role of Parliament and I am not precluding that; it is appropriate. However, the

bottom line on which he and I hold different views is whether such a power should exist. I say yes, but I am not sure whether he also says yes. I say that the UK council should have that power, but I think that he says Parliament. Neither my argument nor his fundamentally detracts from the need to preserve independence.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Health)

The Minister keeps saying that this is a last ditch, reserve power. If that is so, why does he say that it is desirable instead of essential, vital or something that connotes an exceptional circumstance? That is not the type of language that one would expect for a reserve power. Can the Minister give an example of a reserve power's being given because it was desirable rather than vital, immediately necessary or essential?

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

No; I cannot give the hon. Gentleman an example, but there may be one. I do not have it at my fingertips, but I shall try to establish whether there is one. The word ''desirable'' may not have been used in such scenarios, but the language does not subtract from my argument and the way in which we envisage the clause working. It will be a serious step for the UK council to take and it can do so only if it is satisfied that it needs to take that action to protect the public interest. That is a high threshold, which does not constitute a generalised power to let rip across the rules of all the regulatory bodies. If I thought for a second that that was what the clause meant, I would amend it, but having taken advice I am perfectly satisfied that it is not so. I will be happy to entertain wider discussions with the hon. Member for Oxford, West and Abingdon, perhaps on Report.

I suspect that if I keep going I shall start to repeat the arguments that we have rehearsed extensively over the past 45 minutes, and I do not want to detain the Committee with repetition. There is also the danger of hesitation, which I certainly want to avoid. We have been around the houses pretty comprehensively. I have tried to explain to the Committee the nature, origin and purpose of the clause, and I hope that my amendments, which make it clear that we expect a process of consultation with the regulatory body to precede any directions under clause 25(2), have reassured Opposition Members about the way in which we intend these powers to be exercised.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Health)

The Minister has set forth his case, but I cannot say that I am satisfied, although in respect of amendment No. 238 he convinced me that the duty of co-operation would be based on reasonableness. That is welcome, and fits with my view of how the duty would be construed.

However, more important, the wording of clause 25(2) is not what one would expect with regard to the type of reserve power that the Minister claims that it provides. Saying

''If the Council considers that it would be desirable'' is not saying, ''If it is vital in the public interest'', but something less than that. As we know, parliamentary draftsmen often use language that is as wide as possible

in order to give the Government or bodies such as the council the greatest amount of scope, and I heard what the Minister said about his intentions for this body. However, we must legislate on the basis of what the law will provide for. In this case, it will provide that if the council considered it to be

''desirable . . . for the protection of members of the public''— another very wide expression—it would be able to direct the regulatory bodies.

Regulatory bodies such as the Royal Pharmaceutical Society of Great Britain believe that they have accountability to Parliament—indeed, they are rather insistent about it. That is why they suggest that the laying of a report before Parliament would be an appropriate measure. The Minister mentioned the interaction of the provisions with the report of the Bristol royal infirmary inquiry. The presidents of the regulatory bodies strongly support Professor Kennedy's comments in paragraph 75 on page 349 of the report:

''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 point that is being made is that the new council is a non-ministerial Government Department and that, if it is to direct regulators in this way, the balance that Professor Kennedy is talking about is, arguably, lost. Although the Minister may speak about his constructive dialogue with the various regulators, the fact is that he has not satisfied them. Those people have his support and confidence. They include the presidents of the shadow Nursing and Midwifery Council and the shadow Health Professions Council. Those are people that he approves of and even, in many cases, had a hand in the appointment of. If those people say, ''Thank you very much for the constructive dialogue, but we are not satisfied,'' it is incumbent on the Committee to look again at what the Minister is saying. He is saying that this regulation applies only to extreme cases, but in our view that is not the wording of the statute. If the Minister agreed to take another look at the word ''desirable'' in clause 25(2) that would at least be something, although it would not go far enough for me. The Minister does not seem to be saying even that. He seems to be suggesting that it is not possible.

When the Minister was explaining the way in which the council would be able to effect the changes, he suggested that recommendations would be made, but it was not for the council to decide whether to change the rules. The Minister then said that, technically speaking, the Privy Council would take the decision on the basis of the advice of Ministers. It is incumbent on the Committee to look at the reality of the situation. Is the Minister seriously saying that he can think of any circumstances where the Council for the Regulation of Health Care Professionals would suggest or recommend that it was necessary to make changes to the rules? Is there any situation in which the Ministers would say, ''Oh no, we will not do that''? It does not

seem likely. The Minister may be able to cite plenty of examples in council practice and say that it happens all the time—that recommendations are made to the Privy Council and Ministers are always saying that they will not act on the recommendations, but will do something different—but I doubt it.

In Opposition Members' view and experience of the way that Governments work, if a body makes a recommendation, that is it. If the Minister feels that this is a good safeguard, it will help if he provides an example of an occasion when something similar has happened and Ministers have used discretion to change the recommendation of a regulatory body.

Let us consider the breadth of the organisations that are involved in supporting the proposal. The Royal Pharmaceutical Society of Great Britain speaks about its concern about

''potentially sweeping powers of direction by the council proposed in clause 25. No real limits are specified on the use of these powers, the frequency of their exercise or the circumstances in which they may be deployed.''

That is the view of a highly respectable and well-thought-of body that is responsible in the field and that would wish to regulate its own profession effectively. That covers the pharmacists.

The Minister has sometimes criticised the British Medical Association, but I believe that he would accept that on such an issue it would try to find a sensible, practical, ethical solution that would meet the case. The BMA's view is that the provision to allow the council to overrule and control the General Medical Council's policy decisions is potentially subversive of the latter's role, and thus of the principle of professionally led regulation. It is going so far as to call what the Minister is doing subversive. That is pretty strong language from an organisation such as the BMA.

I have mentioned various presidents of organisations. I have personally met representatives of the General Medical Council, which is deeply uneasy about the power. I am asking the Minister whether there is any scope for him to take the matter back and consider whether he could be satisfied with the laying of a report before Parliament as the way forward.

I am reliably informed that experience shows that the use of the health service commissioner has been beneficial in each of the small number of cases in which it has been necessary. Given that the Minister recognises that we are talking about a small cadre of cases and that this is a recognised way of bringing an important issue in the health field to the attention of everyone, including us, why is Parliament being cut out of the loop? The Minister mentioned the Privy Council and the way in which it operates. I had not appreciated till then that, rather than Parliament making a decision on what will happen next after a report is laid before it—that is what the presidents of the various regulatory bodies and I are suggesting—by the route that the Minister suggests, the people who ultimately decide are Ministers.

That would probably not be an exercise of a very real discretion, but we return, as we have so often in the Bill, to a situation in which the Secretary of State is retaining powers and discretions, rather than releasing

them, even though he says that he wants to set up an independent body. It is another example of micro-management for which we regularly criticise the Secretary of State. Either he is committed to arm's-length regulation or he is not. Will the Minister think again?

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon

I listened with interest to that exchange. The hon. Gentleman made comments that I would have made, but I have a few others for the Minister to consider.

It is important to deal with the Kennedy report. The Minister rightly realised that I had recognised that one cannot simply say that what is in the Kennedy report must be in. Otherwise the Government's policy on medical negligence litigation would be decided before the outcome of the Committee and a wide range of other recommendations in the report. I do not dispute, however, that the words that the Minister cited are in there, I think in recommendation 72.

The Minister will not, however, find in the report the recommendation that the overarching Council for the Regulation of Health Care Professionals should not have a majority of members appointed by the regulatory bodies. They will more easily realise, on the basis of their experience, the difficulties in seeking a balance between some of the issues at stake.

It is interesting, although to a certain extent unfortunate, that the Minister cited a paedophile case as an example, although I accept that he did so because I requested him to cite a case. That exemplified the difficulties that could exist. This might be a difficult point to make, but it is necessary. No one should be under any misapprehension that I am not in favour of protecting the public from health professionals, especially those with the most power to damage them. That often, but not only, means doctors. A balance, however, must be struck. There is, as I hope the Minister will accept, no perfect system of regulation that will always involve maximum fair play and consideration for the interests of both health professionals and the public.

I have an example, which might be more relevant than the one that the Minister gave. Arguments have been voiced that when the councils that regulate health professions publish their registers, they should give more details of the background of the health professionals—even including their home address—than those professionals would like. There must be a balance. It is not disputed that more information available to the public on a register, including details that professionals might not want to release because of their personal safety, will generally aid the protection of the public. If people are concerned about someone living at a certain address who might be using pseudonyms, for example, having that information available to the public will, at the margins, increase their protection.

There is, however, a counter-balance: the protection of the hundreds of thousands—if not millions when it is all added up—of health professionals whose interests should also be considered. That is not the primary purpose of the Council for the Regulation of Health Care Professionals, which aims to protect the

public. That is also the primary purpose of the councils that regulate the professions, through proper education and training standards, fitness to practise and recommendations on the ability to practise due to health.

Nevertheless, we as a Parliament must recognise that there are conflicting interests. It is quite possible that the CRHP will consider itself bound, under its functions, to deal with the protection of the public. That is right. Therefore, giving it power to direct another body means that that balance might not always happen. Certainly that is the case in the example that I gave.

Coming to the nub of the matter, the Minister defended the current language. I cannot remember the exact wording that he used to do that, but at the beginning of his remarks he used a negative term; I think that it was ''unlimited''. As the hon. Member for North-East Hertfordshire said, he used other terms, which I wrote down: ''extreme cases'', ''last resort'', ''last ditch'', ''ultimate last ditch'' and ''reserve powers''. None of those are in the Bill. The hon. Gentleman pointed out—a remark that I was going to make—that ''desirable'' is desirable, not essential or necessary, and that the council ''considers'' does not mean that it is convinced. I accept that that is not a parliamentary expression, but the council might consider something to be desirable on a balance of judgment, or on a majority decision. That is not a last resort, an ultimate last ditch or a reserve power but it is perfectly possible, and if the council does that, it might feel that it is following what the Bill asked it to do.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Health)

I have been listening carefully to the hon. Gentleman's remarks. Does he agree that another problem is that the test for the council is subjective? In certain circumstances of the sort that he described, one can envisage an emotive case that might strike the imagination of the public and the media. In such circumstances, the council should have a duty to be objective, not simply to have to ''consider'', which is a subjective test. We want that man on the Clapham omnibus in there, rooting for sensible changes.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon

I agree with the hon. Gentleman's points before his last analogy. I am not sure that it is helpful to do such things by opinion poll, although I know that he was not quite saying that. But the point is well made.

My point is that the words ''consider'' and ''desirable'', which could both imply ''on balance'', could be beefed up. I join the hon. Gentleman in asking the Minister to re-consider that, if not now, then at a later stage. In addition, where the clause refers to protecting members of the public, that could do with some qualification: arguably, with the word ''additional'' before

''protection of members of the public''.

Clearly, this is all about protection of members of the public, and if the ''last resort'' power is to be exercised, something significant must be gained from it.

I am troubled by what might happen. I give an example from another area, which hon. Members might consider relevant. A teacher, who is a professional, has been convicted in the past of a sexual offence, but for something that we no longer consider a sexual offence because things have changed. But the view is taken that anyone who has been convicted of a sexual offence at any point, even if that is not now considered to be a sexual offence, is unsuitable to go near children. Such issues are difficult and not always clear-cut. The example that the Minister cited might lure us into a trap. I am not sure that I have the support of the hon. Member for West Chelmsford there, judging by the expression on his face. He asserts that from a sedentary position.

These are difficult issues that need to be dealt with on an individual basis in all circumstances. I am not sure how possible it will be for outside organisations to take rational and correct decisions without access to information about circumstances. Obtaining that access may contravene confidentiality and the privacy of the people concerned, so the citing of individual cases is not the Minister's best argument. He made a good defence of his position by stating that the amendment appears to change non-professional regulation from being carried out by an over-arching council to being carried out by Parliament directly, as opposed to indirectly through the Bill.

I have argued for avoiding the political control of the health professions. Simply transferring power explicitly to Parliament may not achieve that. The purpose of the amendment would be to ask the council, if it sees fit, to lay a special report before each House of Parliament. Such conflicts—I do not think that that is too strong a term given that the Minister thinks there could be a head-to-head impasse—should be brought to public and parliamentary attention. However, I doubt that that will be done. The mere retention of the power of direction will give a power imbalance to the relationship. When a body has the power of sanction, the body to which it is subject will often cave in or concede earlier than it would do normally because it does not want to go through the humiliation or public notice of the power of direction being used.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Health) 6:15 pm, 11th December 2001

One reason why we have tabled the amendment is that bodies such as the GMC and the Chartered Society of Physiotherapy have already made considerable changes to the way in which they are organised as a result of the issues and criticisms that have been in the public domain. Such bodies are responsive to public criticism. What better way of showing the salience of criticism to the public than to lay a report before Parliament? That would publicly make that point.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon

I agree with that. The Minister has a good point to make and makes it well, but one can see it coming. His amendments are welcome for their own sake and for the fact that they are a sign that the

Government recognise the point at stake. I also hope that they are a sign that they will think further on the subject.

The Minister said that he expected the power to be used rarely if at all and that that would be a sign that all was well. I am not sure that the lack of use of the power would be a sign that all was well. As I said, many regulatory bodies may not want the sanction—it will be viewed as a sanction—used against them and may be prepared, against their better judgment, to make the change without being directed to do so. That would not aid the purpose of openness or strengthen the belief in the idea that professional self-regulation should be open—we all share that belief, and it is contained in the Kennedy report. As the hon. Member for Westbury tellingly said, the experience is that health professionals are judged more fiercely by their peers, whose reputation they indirectly besmirch by poor behaviour, than they are by lay appointees. That is anecdotal, but accepted by those lay members whom I know.

I appeal to the Minister further to consider how to meet our concerns. The more he talks about extreme cases, the last resort and the last ditch, the less the Bill appears to reflect that.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Health)

I realise that I have had a good say, but I want to amplify one issue that arises from a point made by the hon. Member for Oxford, West and Abingdon concerning the way in which the various bodies dealing with health care professionals have been prepared to change their rules in order to respond to public concerns. I am looking at a note that I have been given by the Chartered Society of Physiotherapy, which states:

''The CSP is supportive of the ideas behind the establishment of the Council''

such as

''promoting the interests of patients . . . The CSP strongly supports the view that professionally led regulation for physiotherapists should continue.''

The CSP also states that

''few disciplinary cases are instigated against physiotherapists. Furthermore, regulation of the physiotherapy profession has only recently been reviewed. The CSP—along with fellow members of the Allied Health Professions Forum (AHPF)—have been through two years of consultation and discussion leading to the agreement to establish a new Health Professions Council (HPC). This substantial reform of the State Registration system has come about as a direct result . . . We fear that the creation of the Council for the Regulation of Health Care Professionals will unscramble the agreements which have already been reached between the Government and the AHPF on . . . accountability. But it is not only regulation of the allied health professions which has been amended recently''.

It goes on to point out that the same is true of nurses, midwives and health visitors:

''the General Osteopaths Council and the General Chiropractic Council are still relatively young organisations (set up in the mid-1990s).''

Its concern is that

''the Bill may weaken the concept of professional self-regulation.''

Having gone through all this effort to get modern rules that meet the requirements of the day, the council, not in a vital matter of interest to the public but if it considers it would be desirable to do so, can muck it up.

If the Minister is prepared to take back the relaxed language of clause 25(2) and turn it into the sort of reserve power to which he and the explanatory notes refer, or if he is prepared to examine a regime that fits the health commissioner, we would be grateful.

Photo of John Baron John Baron Conservative, Billericay

It is plain that Opposition Members are concerned about the independence of the regulators, and we want to preserve that independence as far as possible. May I ask the Minister to address the issue in another way? Will he reassure us on the disappointing silence about the accountability of the UK council? To whom is it accountable and to whom should it report? That would help to allay my fears about the lack of a satisfactory limit on its powers. In preserving the independence of the regulators, the Government need to address that issue, in the hope that we can put to rest the concerns about these proposed ombudsman-style powers, which appear to be unlimited.

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

That is a second bite at the cherry. Those are old arguments that have been recycled. Given that everyone has had two or three goes, all that I can usefully add at this stage of the debate are a couple of observations. I have heard nothing today that makes me think that we should take the clause away and redesign it. We have had these arguments with the regulatory bodies, the points have been put to us and we have attempted to address them in the amendments that we have tabled. I made it clear at the beginning that it was evident that there was disagreement between the Government and the regulatory bodies about the need for the power. I regret that, but I cannot add a great deal more to the points that I have made because it is necessary for the council to have that power.

I disagree with the argument that the hon. Member for Oxford, West and Abingdon has tried to advance that this reserve power—the ultimate last ditch—gives the council the right to roam. The clause is clear about when the power can be exercised, and I disagree with both him and the regulatory bodies in their interpretation of it. This is a case where there is a genuine disagreement on the clause's purpose and intention. It has been my purpose and intention in making these remarks to make my understanding of the clause clear not only to the Committee but to any subsequent forums, which has a significance that we should not underestimate. I have tried to reassure and I have tried to put the clause in context, but a disagreement remains. That is unfortunate, but it is not worth concealing.

All that I can say to the hon. Member for Billericay (Mr. Baron) is that he genuinely needs to have another look at the Bill because there is no confusion on accountability. He is incorrect about clause 26, which has not attracted any significant concerns. It is clear from the Bill that the UK council is to be accountable to Parliament, which is how it should be.

The substantial area of disagreement concerns the amendment tabled by the hon. Member for North-East Hertfordshire on what would happen if there were to be a disagreement between a regulatory body and the UK council. He proposes that, in that case, a report be made to Parliament, which is where the matter would rest because there would be no possibility of its being taken any further. As the hon. Gentleman said, the amendment would completely remove any direction-making power from the UK council. We disagree on whether the UK council should have such a reserve power, and his amendment would kick the issue into touch, which would not be sensible. These disputes must be resolved within a proper framework.

The hon. Gentleman's argument on the use of the term ''desirable'' should be placed in the correct context. Whatever word we chose, it would be for the UK council to decide whether the threshold was met. It would be for the council to decide whether the word was ''necessary'', ''desirable'' or ''essential''. In approaching any decision, the council would have to act reasonably on the basis of evidence that would support its determination, which shows that there are sufficient safeguards in the system. This is genuinely a case where the hon. Gentleman and I take a different view. I am sorry that I have been unable to persuade him of our true intentions in relation to clause 25(2).

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Health)

The Minister says that nothing would happen if a report were to be laid before Parliament, but that is not the health service commissioner's experience. I am told that it is widely accepted in the health community that that is a powerful tool. Is the Minister seriously suggesting that if a report was laid about one of the health professions' councils, the Council for the Regulation of Health Care Professionals would not act? Is he really saying that if a report were laid about the GMC, the council would not take that extremely seriously? When those bodies are subject to public criticism they take it seriously; why would they not do so if a report were laid before Parliament?

Photo of Mr Alan Hurst Mr Alan Hurst Labour, Braintree

Order. The hon. Gentleman's intervention is too long.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Health)

There are obvious reactions.

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

The hon. Gentleman is not comparing like with like. His analogy is in relation to the arbitration of particular disputes and the behaviour of, for example, local authorities. In the context of our discussions, it is difficult to see what the end result would be of laying before Parliament a report that drew attention to a dispute between the UK council and the regulatory body because there would be no requirement to act. I cannot see how the process that the hon. Gentleman described would result in the rule change that the UK council is seeking. That, ultimately, is where we part company.

There has been great play about the word ''desirable'' and the council coming to decisions that the hon. Gentleman would query were necessary or desirable to protect the public. However, we should not underestimate the important presence and the role on the UK council of the nine representatives of the regulatory bodies. Under the Bill, there will be 10 lay members, but in the context of the serious decisions that the council may make they will have the benefit and advice of the nine representatives of the regulatory bodies on the council. I am sure that they will have a positive influence on the council's decisions.

There is probably nothing more I can say about the amendment that has not been said two or three times. I am absolutely satisfied about the integrity of the provision and the need for it, supported by the amendments that we have tabled. I disagree with the regulatory bodies about the provision and I have heard nothing today to make me change my mind about the wording of the clause or the procedures outlined in the Bill.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Health) 6:30 pm, 11th December 2001

Needless to say, we are not satisfied. The Minister will not even narrow the language. He is not prepared to take account of the fact that these views are strongly held by a wide range of bodies and groups in the health world. He is putting forward the view that he is being constructive in his two amendments, but they do not change the position. We are dug in and we do not agree, so I shall ask for a vote on amendment No. 186. However, following the Minister's assurance, I beg to ask leave to withdraw amendment No. 238.

Amendment, by leave, withdrawn.

Amendment proposed: No. 186, in page 30, line 39, leave out subsection (2) and insert—

'(2)If, after consulting the regulatory body concerned, the Council concludes that—

(a) it is necessary for the protection of members of the public for a regulatory body to make or amend a rule (under any power the body has to do so); and

(b) the regulatory body has not made or amended the rule and will not do so the Council may if it thinks fit lay a special report before each House of Parliament.'.--[Mr. Heald.]

Question put, That the amendment be made:--

The Committee divided: Ayes 7, Noes 9.

Division number 13 Adults Abused in Childhood — Clause 25 - Regulatory bodies and the Council

Aye: 7 MPs

No: 9 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Amendments made: No. 247, in page 31, line 5, leave out 'may' and insert 'shall'.

No. 248, in page 31, line 6, at end insert—

'( ) The regulations must, in particular, make provision requiring the Council to consult a regulatory body before giving it directions under subsection (2).'.--[Mr. Hutton.]

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Health)

On a point of order, Mr. Hurst. If you will allow me, I want to ask the Minister to explain subsection (5). I do not seek a wider debate.

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

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Health)

Clause 25(5) provides that a regulatory body is not to be taken to have failed to comply with directions merely because a court determines that the rules made pursuant to the directions have been construed in a different way from that intended when the rules were changed. Will the Minister explain, first, the ambit of that and the discretion within it, and how it would work in practice? Secondly, what is the sanction if the council asks a regulatory body to change the rules and the Privy Council agrees, but for some reason the change is inadequate, or the regulatory body refuses to change them? Do the Government have a sanction that can be imposed?

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

We have discussed the last point exhaustively on subsection (2) and, with respect to the hon. Gentleman, the issue covered by subsection (5) is clear. It covers a case in which the courts interpret the rule in a different way so that it does not have the effect originally intended. Without subsection (5), there would be a risk that the UK council or the regulatory body might be perceived to be in default under subsection (2).

I prefaced my comments on subsection (2) by saying that I would be disappointed if the provision were ever used, but in the extremely serious situation in which it might be invoked but a regulatory body refused to make a proposed rule change or submit it to the Privy Council, the Bill would provide a legal procedure to require compliance with the rule change and require it to be submitted to the Privy Council. That is my understanding of the provision. There will be a follow-through, but that is the worst possible scenario that any of us could contemplate.

For some of the reasons suggested by the hon. Gentleman, who imagined the cathartic effect of a report before Parliament to which a regulatory body would almost invariably respond, it is unbelievable that a regulatory body would not comply with the proper procedures followed by the UK council and meet its requirement to submit a rule change to the Privy Council. I do not believe that the situation is likely to arise, but subsection (5) is a declaration to avoid the possibility of such a default situation arising because a court makes a different interpretation of a rule change following a direction under subsection (2).

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Health)

So, the Minister is saying that the sanction is an injunction or a judicial review requiring the regulatory body to propose the rules to the Privy Council.

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

Yes, that is my understanding.

Question put and agreed to.

Clause 25, as amended, ordered to stand part of the Bill.