The memorandum on delegated legislation makes the helpful note that, because the power in the clause will enable the Secretary of State to modify the chapter by statutory instrument in its application to newly regulated activities of a prescribed description, any regulations will be subject to the affirmative resolution. The memorandum notes that
“this is not dissimilar to a Henry VIII power”.
Speaking of Henry VIII, I assure the Committee that, as he was wont to say to his wives, “I shan’t be keeping you long.”
I have known the saying for years. I have heard it many times, but I have never had the opportunity to use it. I thank the Committee for its indulgence.
To my mind, the provision is a Henry VIII power, which is when primary legislation is amended by statutory instrument. I hope that the Minister can help me, because the provision makes all of part 2 subject to a Henry VIII measure. We are concerning ourselves with primary legislation, so that means that it can all be amended by statutory instrument. My question might show my ignorance of procedure, but does the provision include the potential for repeal?
I am sure that the Minister is aware that Lord Justice Law suggested in 2002 in the Metric Martyrs case that it was unfair to attribute such powers to his late Majesty who reigned 100 years before the civil war and longer, yet before the establishment of parliamentary legislative supremacy. In today’s world, it would be interesting to know the thoughts of the Lords Constitution Committee on the clause. I do not know whether there has been an opportunity for informal or even formal consultation within the Government.
It would be helpful when considering the clause if the Minister could tell the Committee what newly regulated activities he envisages and what changes they might bring to the legislation, accepting that the clause is designed to catch the unforeseen. As an addendum, can he tell the Committee about the provenance of the list under subsection (3)? Given our discussions and those of the Liberal Democrats about not wanting to include in the past certain lists to give priority of identification, such a proposal suddenly seems to veer towards the Minister’s prescriptiveness. I question that as a matter of both consistency and precedent. Will he explain the provenance of the list as it might help us to understand why he has chosen that list, but not the list that we proposed?
Clause 39, as the hon. Gentleman has acknowledged, is intended to provide future flexibility so that the system can adapt to changes in the way in which health and social care are delivered. The delivery is becoming more integrated. It is responding to people’s needs, and it is changing as a result of innovation. It is possible that initially primary care will not come within its remit but, as more elective surgery is being delivered in the primary care setting, that change would require the flexibility that we are discussing.
It is also important to recognise that the power to modify the Bill after it is enacted does not apply to the registration of NHS bodies and other providers registered with the new commission from the outset as listed under clause 39(3). We have already made it clear that NHS hospital services would be regulated. Respondents to our consultation put forward convincing arguments for the inclusion of, for example, NHS primary care providers within the regulatory framework. The reason behind the provision is to provide the flexibility that we discussed the day before yesterday in relation to some cosmetic procedures. I do not want to rein in the future flexibility that might be needed.
I appreciate that health care is changing rapidly and that we need flexibility to reflect the results of the changes. I received information from the Patients Association that the chief medical officer has commissioned a report from Joint Commission International, which will be looking at how we accredit and regulate health care organisations. It has suggested that such matters are changing even as the ink is not dry on the Bill.
As the Minister was going through it, I was hoping for some reassurance about how we had arrived at the list in subsection (3). It occurs to me that something that we have already touched on in earlier Committee proceedings is not included in the list. For instance, for a housing association that produces many homes with Telecare that are not known as care homes, but are known as normal, independent homes that happen to have a lot of Telecare facilities, it would be quite difficult to make that fit into that prescriptive list. I think that it is a fair question, and I am hoping to get an answer.