Clause 26 - Complaints about regulatory bodies

NHS Reform and Health Care Professions Bill – in a Public Bill Committee at 6:30 pm on 11th December 2001.

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

I beg to move amendment No. 239, in page 31, line 15, leave out paragraph (a).

Photo of Mr Alan Hurst Mr Alan Hurst Labour, Braintree

With this it will be convenient to take the following amendments: No. 240, in page 31, line 16, leave out 'must (or need not),' and insert 'may'.

No. 241, in page 31, line 18, leave out paragraph (c).

No. 242, in page 31, line 19, leave out paragraph (d).

No. 243, in page 31, line 20, leave out paragraph (e).

No. 244, in page 31, line 27, leave out paragraph (i).

No. 245, in page 31, line 40, at end add—

'(5)The Council may adopt such procedure as it thinks fit to follow in investigating complaints.'.

No. 246, in page 31, line 40, at end add—

'(6)The power to make regulations in this section shall be exercisable by statutory instrument.

(7) A statutory instrument containing regulations under this section shall not be made unless a draft has been laid and approved by a resolution of each House of Parliament.'.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Health)

Amendment No. 239 would delete clause 26(2)(a). The clause deals with complaints about regulatory bodies and provides that the Secretary of State can make regulations about the council's investigation of the complaints that it receives about the way in which a regulatory body has exercised any of its functions. As the Minister said, it is about enabling the council to investigate maladministration, not a means of overturning the decisions of fitness to practise committees.

Photo of Simon Burns Simon Burns Shadow Spokesperson (Health)

Does my hon. Friend agree that notwithstanding subsections (2) and (3), this is a classic example of where it would have been helpful to the Committee if the Government had prepared draft regulations in advance?

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Health)

Yes. It is certainly my recollection that that is what we all thought was going to happen, but I have not had time to check the record to find the passage at the beginning of our proceedings in which the Minister promised to be thus helpful. It would be useful to know what the Government have in mind in respect of regulations.

The various bodies that have written to us are keen that the council should be able to manage itself independently of the Government. It is disappointing that clause 26, with its plethora of matters that can be regulated, does not give the council more freedom to manage its own affairs. That is the theme that runs through the amendments.

Clause 26(2)(a) says that regulations may deal with

''who (or what description of person) is entitled to complain'' to the council about maladministration. Why cannot anyone make a complaint? I can understand why it might be desirable to specify the nature of the complaints that the council may consider, but why restrict the kinds of people who can make them?

Photo of Simon Burns Simon Burns Shadow Spokesperson (Health)

I could answer my hon. Friend's question by saying that perhaps he is fortunate enough not to have the odd constituent from hell who complains about anything and everything and to whom one would not want to give this sort of power.

Photo of Peter Atkinson Peter Atkinson Conservative, Hexham

Some of us do not live in Essex.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Health)

That sedentary remark cannot have been made by one of my colleagues. As we know, it is the Secretary of State who is critical about Essex.

Who does the Minister think will and will not be allowed to complain, and why does he want to restrict the ambit?

Subsection (2)(b) refers to

''the nature of complaints which the Council must (or need not) investigate''.

Amendment No. 240 would delete ''must (or need not)'' and insert ''may'', so that the phrase would read ''the nature of complaints which the Council may investigate''. Again, this is about prescription. Should the Minister be able, through the Secretary of State, to prescribe exactly which kinds of complaints must, or need not, be investigated? Why cannot the nature of the complaints that the council may investigate be set out? There may be a good reason why not, but we would like the Minister to explain. The amendment would ensure that the regulations described the nature of the complaints that the council may investigate, but would not require it or exclude categories of complaint. While I was drafting the amendment, I made the note, ''Let's trust the council.'' If the council were to act unreasonably, I think that judicial review would be available.

Amendment No. 241 would delete paragraph (2)(c), which refers to the

''matters which are excluded from investigation''.

Why be exclusive in that way about regulations? Why not simply state the nature of the complaints that the council can deal with, then leave it to do its job properly?

Amendment No. 242 would delete (2)(d), which refers to the

''requirements to be complied with by a person who makes a complaint''.

All Governments like forms and, no doubt, at the back of the draft regulations, the Minister will state the nature of the form to be filled out if one wants to make a complaint to the council. Why should it be like that? Why cannot people simply write in with a complaint and the council decide whether to take it up? Perhaps

the Minister has a reason why there must be a form or procedure for the requirement to be complied with, but he must justify that provision.

Amendment No. 243 would delete paragraph (e) and would mean that it is not for the Secretary of State to set out the procedure to be followed by the council when investigating complaints. The council could regulate its own procedure, and what would be wrong with that?

Amendment No. 244 would delete paragraph (i) which refers to

''the making of payments to any persons in connection with investigations''.

There may be a reason why a payment should be made. Perhaps the Minister thinks that the council would outsource its operations of investigation into maladministration. I asked the Minister this morning whether he had private investigators or opinion research in mind, and he said possibly a university. Will he explain more fully what the payments are? Are they simply payments to contractors, or does he think that it may be necessary, in the course of an investigation into maladministration, to pay money to a whistleblower. That is what happens in some criminal justice cases. Is he talking about information received or just contracting out functions?

Amendment No. 245 would allow the council to adopt its own procedure for investigating complaints; it would make specific provision for the council to do that. Amendment No. 246 refers to our old friend, the affirmative resolution procedure—the Minister will not be surprised to see it, but it is not a laughing matter. The regulations are important but we have not seen them. I am asking all sorts of questions about them but the way in which matters are to be dealt with is important. Many bodies, to which I have referred, want the council to be independent and to be able to run its own affairs. If that is not to be the case, and lots of restrictions are to be in place, the affirmative resolution procedure will allow us, the parliamentarians—not just the Government—to decide what should happen. That would be a proper guardian for the independence of the council.

Photo of Mr Alan Hurst Mr Alan Hurst Labour, Braintree 6:45 pm, 11th December 2001

I am of the view that the scope of the amendments allows a full debate on the clause. A stand part debate is therefore unlikely, and hon. Members will doubtless direct their minds accordingly.

Photo of Simon Burns Simon Burns Shadow Spokesperson (Health)

Obviously, I support the amendments, otherwise they would not be tabled in my name. However—[Interruption.] I do not intend in any way to breach collective responsibility, particularly with my Whip sitting behind me, but I should with hindsight caution my hon. Friend the Member for North-East Hertfordshire about amendment No. 239. I fully understand the purpose behind it, but on reflection we may have been a little too all-embracing in seeking to strike out subsection (2)(a). Our motivation was the sheer horror of what could happen if we adopted the provision, but I now think that it needs redrafting rather than abandoning. I suspect that we have all experienced the complainant from hell, and it is unfair to give carte blanche to that small group of individuals

who take perverse pleasure in spending their lives complaining, and who are unable to accept a fact when it stares them in the face.

I have a complainant from hell who has corresponded with me for 12 years. As your constituency is also in Essex, Mr. Hurst, you will understand that on first meeting me this complainant thought that I was wonderful. Sadly, I was unable to overrule the decision of a court or an appeal court. Times changed, and over the years matters that were my fault became my Government's fault. Fortunately, they are now the Labour Government's fault. On 2 May 1997, after that change of Government, her hopes were raised, as those of anyone who wanted to make complaints through such legislation would be. She thought, ''New Government, new Labour, new decisions.'' I again had to go through the lengthy process of writing to the Secretary of State for Health, the Home Secretary, the Lord Chancellor and the Department of Trade and Industry about her problem. Of course, as she was not as familiar with such procedures as I am, she was not to know that the same civil servants who drafted responses from Tory Ministers were drafting them again.

The Prime Minister's office, the Department of Health, the Department for Work and Pensions and, in particular, the Department of Trade and Industry will not reply to her correspondence. I, too, will no longer reply to her correspondence. The irony is that in the past three weeks, her complaint has ended up—new hope—on the desk of the Chairman of the Select Committee on Home Affairs. Sadly, I must tell the Committee that he, too, is no longer willing to reply to her correspondence and that that duty has now fallen on the Attorney-General. I can only assume that he will at some point follow suit. Here is a complainant from hell who, because she worked for a health authority, will not in any way, shape or form, accept the decisions of an employment tribunal or of the Employment Appeal Tribunal that found against her.

I caution my hon. Friends that the amendment might be too all-embracing. My complainant is a classic of her kind. One may say of her that a little education is worse than no education at all. A little reading of the Reader's Digest guide to the law is far worse than having no knowledge of the law. I would not wish on any council or regulatory body, nor even on this Government and their Departments, the vexatious and difficult complainants that one can face. Such people use up a disproportionate amount of time, energy and money with their vexatious complaints, and they will not take no for an answer. I find it extraordinary that this complainant has threatened to sue me. Why she did not sue the DTI, I do not know. That is the end to which some complainants will go.

I hope that after further thought we will reserve our position on clause 26(2)(a) and perhaps pursue a redrafted version on Report.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Health)

I understand that we would not want to have frivolous, vexatious or unreasonable applications to the council, but surely that will be possible if one was simply to amend clause 26(2)(b). I am arguing that (b) should stay, although with ''may'' instead of ''must (or need not)''. That could then read ''(b) the nature of complaints which the Council may investigate''. The regulations would then make it clear that the council need not, if it did not wish to, investigate a frivolous, vexatious or unreasonable claim. Would that not cover it? Or does my hon. Friend feel that there should be a description of person, which fits in with his complainant.

Photo of Simon Burns Simon Burns Shadow Spokesperson (Health)

My hon. Friend is a lawyer, so he is logical, and he is a decent and intelligent person. He would make that sort of comment because he works from the basis of knowledge, intelligence and decency. Sadly, he has obviously not had a complainant from hell. If he had fully experienced the horror of it, he would be aware that Select Committees of this House cannot investigate individual complaints.

Unfortunately, the hon. Member for Sunderland, South (Mr. Mullin), who is Chairman of the Select Committee on Home Affairs, has been bombarded by letters from this individual for the last three weeks. He explained in his first letter that the Home Affairs Committee, could not, by the rules laid down by the House of Commons, investigate individual complaints. To which the reply was, ''But my complaint is so important, and such an injustice has been perpetrated upon me by this House, through this person working in a health authority, that the Select Committee should investigate it.'' The woman cannot understand that there are rules for certain organisations.

My hon. Friend suggests tightening up paragraph (2)(b), but that would be to no avail in the case of someone who is so obsessive and seems to spend their life—because they have nothing better to do—reliving a seeming injustice, complaining and seeking redress. I am afraid that from a logical point of view my hon. Friend is absolutely right, but in reality with certain people in the real world it just would not work. That is why I think that we will reluctantly have to look again at amendment No. 239. We really have to get it right, because it would be irresponsible of us to inflict on this council complainants of the sort that I and many Ministers and Departments, and civil servants, over the last 12 years, have had to put up with.

Debate adjourned.— [Jim Fitzpatrick.]

Adjourned accordingly at one minute to Seven o'clock till Thursday13 December at half-past Nine o'clock.