NHS Reform and Health Care Professions Bill

Public Bill Committee, 11 December 2001.

Standing Committee A

Clause 23 - the council for the regulation of health care professionals

Ann Widdecombe (Conservative, Maidstone and The Weald)

I understand that the Opposition want a stand part debate on clause 23, so I ask the Committee—indeed, I insist—that the three groups of amendments be debated according to the narrow way in which they have been drawn.

Oliver Heald (Conservative, North East Hertfordshire)

I beg to move amendment No. 224, in page 28, line 31, leave out from 'bodies' to end of line 33.

This is a probing amendment concerned with the functions of the Council for the Regulation of Health Care Professionals as described in clause 23(2)(d). Under the clause, the council will promote co-operation between the eight regulatory bodies to which it refers, and I am happy for that principle to be extended to the further body that the Minister is seeking to add to the list through a later amendment. However, if the amendment were accepted the council would not promote wider

''co-operation between regulatory bodies; and between them, or any of them, and other bodies performing corresponding functions.''

It is worth bearing in mind that some of the bodies listed in subsection (3) contain more than one profession. For example, the United Kingdom Central Council for Nursing, Midwifery and Health Visiting contains three professions, and the Council for Professions Supplementary to Medicine contains 12. In total, clause 23(3) lists about 20 bodies that will have a duty to work together, and between which the council will have a duty to promote co-operation.

Why is it necessary for a wider group of bodies to co-operate with such health bodies? If subsection (3) listed just one or two bodies, it might be reasonable to argue that such co-operation is necessary to ensure that matters are dealt with consistently across a range of professions. However, subsection (3) lists some 20 bodies, so why is it necessary to expand the list yet further? Moreover, what sort of bodies does the Minister have in mind? Although the Department of Health is responsible for the Bill's progress, I believe that the bodies listed in subsection (3) are the responsibility of the Privy Council Office. Bodies such as chartered institutes and bankers are also the responsibility of the Privy Council Office. With that in mind, what would be the point of trying to promote co-operation with, say, architects?

Will the professional regulatory bodies that we are discussing be required to co-operate with, and promote co-operation between, bodies that embrace a wide range of professions? I believe that a UK professional council exists that covers such a range. Will the Minister flesh out what he has in mind in terms of promoting co-operation? Will he also confirm that there is some point to the provision, and that it is not just a bureaucratic exercise involving people spending a lot of time discussing parameters and broad agreements to little effect?

John Hutton (Labour, Barrow and Furness)

I am grateful to the hon. Member for North-East Hertfordshire (Mr. Heald) for giving me the opportunity to explain the matters that he raised.

We do not envisage the UK council having any role in relation to the qualification of architects, bankers and chartered accountants. It is a council for the regulation of health care professionals, and all its functions must be seen and exercised in that context. The bodies with which it should be able to discuss matters are the quality standard-setting bodies that have an impact on the delivery of health care and health care services, not those that deal with bankers, architects or accountants. Those are all worthy professions, and I have nothing against them, but they will not fall within the remit of the council. The Bill has been constructed to ensure that that does not happen.

The hon. Gentleman asked why we wanted the council to have a wider remit. In essence, the answer lies in the Kennedy report. Professor Kennedy saw it as part of the council's rationale that it should be able to work closely with other quality-related bodies. As I understand it, that is the reasoning behind new clause 2, which we will debate later.

The amendment would make it harder for the council to promote co-operation between, for example, a regulatory body and the Quality Assurance Agency for Higher Education about the fitness of purpose of educational courses and qualifications in relation to health care professionals. It would make it harder for the General Medical Council and the specialist training authority or the joint committee on the post-graduate training of GPs or its planned successor, the medical education standards body, to have discussions and closer co-operation on the admission of doctors to the specialist register. It would make it harder for there to be discussions between the regulatory bodies and the General Social Care Council, or between the GMC, the General Dental Council and the national clinical assessment authority about the thresholds at which poor performance by a doctor or dentist could lead to referral to their regulatory body.

We regard this provision, as did Professor Kennedy, as a necessary adjunct to the proper discharge by the council of its new functions. It is not designed to extend its remit into professions that have nothing directly to do with health care professionals and their regulatory and educational requirements. As Professor Kennedy said, the overarching body that is established by clause 23 needs to have a broad co-ordinating function between the regulatory bodies and the bodies that are responsible for setting quality standards on education and training in relation to the relevant professional organisations.

This is not a back-door route to bringing within the remit of the council a whole range of professional organisations that have nothing to do with the regulation of health care professionals. It is a sensible measure that will ensure, as Professor Kennedy argued, that the council can do its job properly.

Oliver Heald (Conservative, North East Hertfordshire)

Just so that we are clear about this, is the Minister ruling out the promotion of co-operation with regulatory bodies for architects, bankers and so on, and limiting it purely to the health context?

John Hutton (Labour, Barrow and Furness)

Yes, that is my understanding of the Bill.

Simon Burns (Conservative, West Chelmsford)

As my hon. Friend the Member for North-East Hertfordshire said, this is a probing amendment, and I want to probe the Minister a little further.

Subsection (2) lays down the general functions of the council, which include:

''to promote the interests of patients and other members of the public . . . to promote best practice in the performance of those functions . . . to formulate principles relating to good professional self-regulation . . . to promote co-operation between regulatory bodies''.

Those are all eminently sensible. However, given the importance of education, professional development and training, to which the Minister referred, why does the Bill include nothing specific about them in relation to the functions of the council? I am sure that the Minister would agree that all three of those areas are critically important, and unless there were good reasons to the contrary, they should be included in the functions under subsection (2).

John Hutton (Labour, Barrow and Furness)

As I understand it, the hon. for West Chelmsford (Mr. Burns) is arguing for the UK council to have some jurisdiction in relation to setting educational training standards for a variety of health care professions. It is an interesting argument, but I do not think that we want the UK council to discharge that role. We may come to this discussion when we look at some of the amendments about the composition of the council.

As we envisage it, the body will have a lay majority, and some perfectly reasonable concerns would be expressed about a body with a lay majority setting professional standards for doctors' qualifications and so on, and that would not be a sensible path to go down. I know that the amendments would equalise the balance, but even then I am not sure that that would be a sensible thing to do. Existing bodies have responsibilities in these areas, including the royal colleges. We intend to establish, I hope later next year, the medical education standards board to provide oversight and an overview of the work done by the Special Training Authority and the joint committee in relation to the education and training of GPs. It is important that they are professionally-led responsibilities. We certainly envisage that continuing in the future.

The UK council's role is different. We are setting it up partly in response to what Professor Kennedy said, and the reasoning in his report, which I am sure we will come to in the debate on stand part. We are also setting it up for reasons that we set out in the NHS plan last year. In both cases, certainly in the NHS plan, we tried to explain why we wanted to set up a council and why professional education training issues should be dealt with elsewhere.

The hon. Gentleman has an interesting point to make, but, in relation to some of the points that I have tried to address, it is better for the educational issues to be dealt with elsewhere, within professionally-led organisations, rather than within an organisation with a lay majority.

Oliver Heald (Conservative, North East Hertfordshire)

Having heard the Minister give a clear assurance that the promotion and co-operation is between regulatory bodies and other bodies within the health sphere, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

John Hutton (Labour, Barrow and Furness)

I beg to move amendment No. 198, in page 28, line 41, at end insert—

'( ) subject to section 24(5A), the Pharmaceutical Society of Northern Ireland,'.

Ann Widdecombe (Conservative, Maidstone and The Weald)

With this it will be convenient to take Government amendments Nos. 199, 201 and 202.

John Hutton (Labour, Barrow and Furness)

The first amendment seeks to add the Pharmaceutical Society of Northern Ireland to the list of bodies within the scope of the Council for the Regulation of Health Care Professions. The second and third amendments together make the same provision for the hybrid status of the Pharmaceutical Society of Northern Ireland, as both a regulator and a professional body—as we have already made in clause 24(5) in relation to the Royal Pharmaceutical Society of Great Britain. The fourth amendment brings the Pharmaceutical Society of Northern Ireland within the scope of clause 27, which relates to the council's power of public interest appeals.

Essentially, the amendments are necessary to reflect the separate ways in which the pharmaceutical profession is regulated across Great Britain and Northern Ireland.

Part 2 of the Bill applies to Northern Ireland as each of the regulatory bodies covers the whole of the UK. In the case of pharmacy, there is a Royal Pharmaceutical Society of Great Britain and a separate Pharmaceutical Society of Northern Ireland. Therefore, in order to apply the Bill properly to pharmacy in Northern Ireland, there needs to be a reference to the Pharmaceutical Society of Northern Ireland wherever the Royal Pharmaceutical Society of Great Britain is mentioned.

As members of the Committee will probably be aware, the regulation of health care professions in Northern Ireland is a matter transferred to the Assembly under the terms of the Northern Ireland Act 1998. That means that the Bill can apply to Northern Ireland only with the consent of the devolved authorities there. However, we have secured that consent and the Northern Ireland executive is happy for us to proceed along the same lines as we are in England, Wales and Scotland.

Amendment No. 198 is self-explanatory and would add the Pharmaceutical Society of Northern Ireland to the list of bodies included in the council. As with the Royal Pharmaceutical Society, the PSNI is distinct from the other regulatory bodies covered by the council in that it is both a regulatory body and a professional organisation. The Bill reflects that unusual status for the RPS and amendments Nos. 199 and 201 simply mirror the provisions in relation to the Pharmaceutical Society for Northern Ireland.

Amendment No. 202 adds the PSNI's fitness to practice decisions to the list of decisions against which the council may appeal in the public interest under clause 27.

Oliver Heald (Conservative, North East Hertfordshire)

I welcome the amendments. The Royal Pharmaceutical Society of Great Britain contacted me to explain that its remit does not extend to Northern Ireland, which has its own pharmaceutical society, and that clarification is needed about inclusion of the sister body in Northern Ireland into the new structures. I am sure that it will also welcome the amendment.

John Hutton (Labour, Barrow and Furness)

I am grateful for the hon. Gentleman's support.

Amendment agreed to

Oliver Heald (Conservative, North East Hertfordshire)

I beg to move amendment No. 225, in page 29, line 15, after 'sections', insert

'save that the reference to the provision of general dental services in subparagraph 2(d) of paragraph 11(2) of Schedule 3 of the 1999 Act includes the performance of personal dental services,'.

This is a probing amendment to establish whether regulation of the qualifications or experience required to provide general dental services, as set out in paragraph 11(2)(d) of schedule 3 to the Health Act 1999, also covers personal dental services or, if not, whether that is covered in some other way in the Bill.

Clause 23(6) states:

''In this group of sections, references to regulation, in relation to a profession, are to be construed in accordance with paragraph 11(2) and (3) of Schedule 3 to the 1999 Act.''

Paragraph 11(2) of schedule 3 to the 1999 Act states:

''References to regulation, in relation to a profession, in that section and this Schedule include . . . (d) in the case of the profession of dental practitioner, the regulation of the qualifications or experience required for a dental practitioner to provide, or assist in the provision of, general dental services under the 1977 Act.''

We have dealt with personal dental services in various parts of the Bill and I seek the Minister's assurance.

John Hutton (Labour, Barrow and Furness)

Once again, I am grateful to the hon. Gentleman who has drawn attention to what he believes is a gap in the provisions as they apply to the council. His amendment would cause references to regulation in the provisions to be read as including the regulation of the qualifications and experience required for the performance of personal dental services. It may be helpful if I explain the background because he has made a fair point and I want to explain why there is no gap.

The section 60 powers in the 1999 Act permit the creation, modification and amendment of legislation covering the regulation of health care professions to be carried out by order, subject to various limitations and procedural safeguards. We introduced those powers in that Act to make it simpler and more efficient to keep the relevant regulatory legislation up to date. Before the 1999 Act, there was always a problem finding legislative time on the Floor of the House to update and modify existing legislation, particularly against the background of a number of professional groups wanting their own new schemes of professional self-regulation.

This group of clauses uses the same definitions for the regulation of health professions set out in section 60 and schedule 3 of the 1999 Act. The schedule refers only to qualifications or experience required by a dental practitioner to provide, or assist in the provision of, general dental services. The amendment would include personal dental services in the scope of the UK council. The schedule relating to section 60 makes particular reference to personal medical services and so, as the hon. Gentleman said, there would appear to be an inconsistency. However, there is a difference between the regulation of qualifications or experience required for personal medical services and that required for personal dental services.

By virtue of primary legislation and European Union law, all doctors performing general medical services or personal medical services under a pilot must complete vocational training, which is period of employment after qualification during which the practicalities of general practice will be learned, including clinical learning, and learning about contractual matters. Dentists must also complete vocational training before becoming a principal on a health authority's list. To be able to perform personal dental services under a pilot scheme, there is no need to have completed that year of vocational training, although such a dentist would be fully qualified and required to work under supervision as part of personal dental services.

The hon. Gentleman's amendment is unnecessary because it does not recognise the distinction between the qualifications required to perform personal medical services and those needed to perform personal dental services. I hope that the hon. Gentleman feels reasonably reassured. Although there appears to be an inconsistency in the Bill, the differences can be explained in terms of the vocational and training qualifications required for a dentist to perform personal dental services.

Oliver Heald (Conservative, North East Hertfordshire)

That is helpful because it explains the apparent gap in provisions under paragraph 11(2) of schedule 3. I fully accept that the Minister's explanation deals with that, but I will think about it again before Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Oliver Heald (Conservative, North East Hertfordshire)

The setting up of the Council for the Regulation of Health Care Professionals is something that we are not minded to challenge directly by seeking to divide the Committee. However, we would like reassurance from the Minister that it is the correct approach.

The background to the council is that the Kennedy report suggested that an overarching body should deal with the regulation of health care professionals and the various bodies described in clause 23. However, some are asking whether it is the best way forward. The fact that Professor Kennedy suggested that such a mechanism should exist is powerful evidence, but the General Medical Council, which is probably the body to have received the most publicity in this area and has been criticised in many high profile cases, has taken steps to amend its procedures and make changes. The GMC's ability to regulate the profession has arguably changed since the Kennedy report.

For example, the new interim orders committee has been effected and further initiatives amount to a radical constitutional change in the GMC. The Minister will recognise measures such as periodic revalidation for all registered doctors and we welcome further changes to the fitness to practice procedures. The Medical Protection Society is an important body that provides indemnity, particularly for general practitioners, and it has made it clear that it is supportive of the changes that the GMC is making—we all are, in broad terms. The MPS states:

''A new Council for the Regulation of Health Care Professionals will add a further layer of bureaucracy which, in our submission, is likely to prove superfluous. A better way of improving accountability of the GMC would be to make it directly accountable to Parliament through the Health Select Committee. The proposed Council with powers to the extent set out in the Bill effectively brings to an end the concept of self-regulation. Individual regulatory bodies may be forced to make changes which they consider inappropriate for their own profession. If the Council is to be established, it should be advisory only, with no powers to require or impose change on individual regulators. The concept of an integrated approach is misconceived given the different clinical and professional responsibilities and working environments of each profession. Self-regulation may be imperfect, but is still the best means of regulating the professions. A body comprising doctors or dentists, together with lay representatives, is the ideal way of ensuring the rights of patients and practitioners are protected and the regulatory procedures are fair, transparent and efficient.''

In a later new clause we shall examine whether there is a case for bringing together the four main regulatory and inspecting bodies that the Government have recently created. Would one way in which to deal with that without setting up another council be to build on the procedures that we have in this place by making the General Medical Council and other bodies directly accountable to the Select Committee on Health? That would boost Parliament and play into the current arguments in this place about the way in which our procedures could be developed to make the legislature stronger to provide a greater counterbalance to the Executive.

One criticism of the Government's proposals is that there is an area of weakness when it comes to the independence of the Council for the Regulation of Health Care Professionals. Many provisions will be made by the Secretary of State, although it is good that the Minister is accepting one amendment, who will be able to mould and fashion the Council for the Regulation of Health Care Professionals—his appointees; his direction; his council. It might be more inclusive if it were our job as parliamentarians to be the responsible body to which these various professional regulatory bodies report.

The responsibility falls under the remit of the Leader of the House, who is also the Lord President of the Council. The Privy Council Office is the administration that deals with regulatory bodies, and it is only because these are health bodies that the Department of Health is taking this part of the Bill through the House. The overall responsibility in government for such work rests with the Privy Council Office. A search for reform by the Leader of the House helps the legislature gain prominence and authority. This is his area of responsibility, and he is giving ground to the Secretary of State for Health. In short, Parliament is giving ground to the Executive.

I should be interested to hear the Minister fashion an argument for this further layer of bureaucracy. I am not saying that we shall seek to divide the Committee on the clause, but I should be interested to hear the Minister justify that. As I said to him when we were debating the order that dealt with the Health Professions Council, it is not enough simply to say that because Professor Kennedy thought that something was a good idea, therefore it is a good idea. The Government need to justify and fill out the argument.

Andrew Murrison (Conservative, Westbury)

I should declare an interest, as I am a subscriber to the GMC, the main body being considered. That does not mean that I am necessarily arguing for it; quite the reverse. Having suffered over many years from an increasing subscription, I must say that the GMC, even now, sends shivers down my spine.

The Government have some catching up to do. The GMC has done a great deal to put in place measures to prevent tragedies such as those that we have recently seen, especially in the light of the Kennedy report. We must not lose sight of the fact that much of what we are considering today would not have a material effect in preventing some of those tragedies. Some things that we discussed earlier in the Bill might do that, but I do not think that this will.

I believe that this part of the proposal is ill-conceived. It treats the various professional groups under discussion equally, when they are not equal numerically or in terms of their professional responsibility and accountability. That might be acceptable, but we need to bear it in mind. We should not assume that because the clause deals with the bodies equally, they are equal in numbers or responsibility. The professions allied to medicine are especially concerned with the proposal and the representation that they would have on the council, were the clause enacted.

We must recognise that the proposal would sound the death knell of self-regulation. It will give us an over-arching body, able to direct closely the functions of the professional bodies. That will have a knock-on effect on the ability to attract the best in the professions to take part. At the moment, I can speak only for the GMC because it is the body about which I know most, but there is a great deal of status in becoming a member of that organisation, and much competition to do so. It attracts some of the very best in the profession. I fear that, with the degrading that we are discussing today, it will be increasingly difficult to attract some of the top people from my profession—and, I suspect, from the other professions under consideration—to take part in the crucial matter of regulating. Regulating one another is important and sensitive, and needs the best minds in those professions. I fear that the quality of the bodies will be diminished by the proposals.

The cost of the council is rather opaque. The Minister must make clear whether the regulatory bodies themselves will fund it, or whether the money will be found centrally in some way.

The independence of the new body is very important. I am sure that we will hear much from hon. Members about their concerns that the body be independent of ministerial control. That will require some parity in ministerial and non-ministerial appointments. It is important for regulatory bodies to be accountable to Parliament, as is currently the case. The Bill does not seem to establish any proper lines of accountability. We need a little more clarity on the lines of accountability of the regulatory bodies and the council.

The council will be able to intervene at the conclusion of a case by referring it to the High Court if it feels that that is desirable for the protection of members of the public. That will be of real concern if the power is not used very sparingly indeed. It could quickly become the norm for cases to be appealed, in effect, to the High Court. That would diminish the responsibility of the GMC in particular. In this context, we are really talking about the GMC. Various other bodies that have written to me have been keen to point out that they hear only a very small number of cases of professional matters such as negligence. It is principally the medical profession that is in the firing line.

In the light of the Kennedy report's recommendations, one welcomes the measure. However, there appear to be many gaps and matters that require explanation, and I should be grateful if the Minister clarified the issues that I have highlighted.

Richard Taylor (Independent, Wyre Forest)

I have two questions for the Minister, the first of which concerns health visitors. The national body and many local health visitors have expressed distress about the fact that their title is missing from the Nursing and Midwifery Council. Can the Minister advise me on how to convince health visitors that they are not being neglected and cut out? The second point concern chiropodists in the independent sector, who carry out well in excess of 50 per cent. of routine basic foot care. Given that only a single, state-registered representative will be on the council, what measures will be put in place to protect those chiropodists who provide a vital role in the independent sector?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

It is difficult to do anything other than welcome clause 23, which, in establishing the Council for the Regulation of Health Care Professionals, implements a recommendation of the Kennedy report, even though it was foreshadowed, under a different title, in the NHS plan. Liberal Democrats have always made it clear that we support mechanisms to improve quality, and the co-ordination of quality assurance is an important factor in that regard. In general, we support the thrust and the recommendations of the Kennedy report, but we must not lose our critical faculties. We must recognise that it is an important source of advice and contribution to the debate. It is appropriate to look at what the report said about the council, and to flag up some questions that the Government must answer in future discussions. Page 435 of the report sets out the recommendations' desired effects, including that central Government

''create independent mechanisms for regulating the quality of healthcare and the competence of healthcare professionals.''

Will the Government confirm that that is indeed the purpose? If there are subsidiary purposes, they should be spelled out. Recommendation 39 of the report mentions the need for ''overarching organisations'', and states:

''A Council for the Quality of Healthcare should be created''.

However, the Bill does not establish one. Recommendation 39 also states:

''A Council for the Regulation of Healthcare Professionals should be created to bring together those bodies which regulate healthcare professionals (including, for example, the General Medical Council . . . and the Nursing and Midwifery Council); in effect, this is the body currently referred to in 'The NHS Plan' as the Council of Healthcare Regulators. These overarching organisations''—

the report is talking about quality organisations—

''must ensure that there is an integrated and co-ordinated approach to setting standards, monitoring performance, and inspection and validation. Issues of overlap and of gaps between the various bodies must be addressed and resolved.''

That is a clear and effective summary of what we believe the council should do. I hope that, in subsequent discussions, the Government will stick to those principles, or clarify the areas in which they wish to go further.

Oliver Heald (Conservative, North East Hertfordshire)

Paragraph 75 of the report, on page 349, states:

''An effective system . . . needs an independence from the professions and from government''.

Does the hon. Gentleman agree that that is a very important point? [Interruption.] I was quoting from page 349, paragraph 75.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I do not doubt the hon. Gentleman's source.

Ann Widdecombe (Conservative, Maidstone and The Weald)

Order. We cannot have two hon. Members on their feet at the same time. Has the hon. Member for North-East Hertfordshire finished his intervention? It was a long one.

Oliver Heald (Conservative, North East Hertfordshire)

Yes.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I accept that the hon. Gentleman was being helpful in giving me time to find the reference.

Recommendation 72 of the Kennedy report is explicit:

''The Council for the Regulation of Health Care Professionals should be established as a matter of priority.''

I accept that the Government are establishing the body as a matter of urgency. Indeed, they are doing so before we have had their formal response to the Kennedy report, which means either that the Bill is an urgent response to the issue or that they are taking their time over their response to the report. The report continues:

''It should have a statutory basis. It should report to Parliament. It should have a broadly-based membership, consisting of representatives of the bodies that regulate the various groups of healthcare professionals, of the NHS and of the general public.''

In so far as the clause goes, we want to give it our full support. Of course, the clause refers to schedule 7, which concerns the balance of that body's membership. Nevertheless, the Government should be commended on the relative speed with which they have brought forward the proposal. They have sought to stick relatively closely to the Kennedy prescription, rather than their original prescription in the NHS plan, and we warmly welcome the clause.

John Hutton (Labour, Barrow and Furness)

I thank those hon. Members who support clause 23. The hon. Member for North-East Hertfordshire is concerned about some of the details, and I shall respond to his points in a moment.

Out of all the hon. Members who spoke, the only one who indicated a lack of support was the hon. Member for Westbury (Dr. Murrison), and he prefaced his remarks by drawing attention to the fact that he is a member of the BMA.

Andrew Murrison (Conservative, Westbury)

I subscribe to the GMC because I am obliged to; I am not a member of the BMA.

John Hutton (Labour, Barrow and Furness)

I understand that the hon. Gentleman feels that this is needless bureaucracy that would not advance the issues that we are trying to address. That is probably the minority view in relation to the proposals, which we sent out for consultation in the autumn.

Andrew Murrison (Conservative, Westbury)

Just to clarify, the Minister is putting words into my mouth. I said that I broadly support the clause.

John Hutton (Labour, Barrow and Furness)

I am grateful to the hon. Gentleman for pointing that out. I missed that part of his remarks, but I am sure that he said that. However, the general tone of his remarks was less supportive than that of the other hon. Members who spoke in relation to the clause. We must address whether existing arrangements are satisfactory. In my view they are unsatisfactory, which is why we have brought forward these provisions.

Turning to the remarks made by the hon. Member for North-East Hertfordshire, it is not the case that because Professor Kennedy recommended that we establish this council we simply accepted his recommendation. We have looked carefully at Professor Kennedy's arguments, which have been the subject of detailed quotation between the hon. Members for Oxford, West and Abingdon and for North-East Hertfordshire. I shall also be selectively quoting parts of the report in a moment. The arguments why a body with the powers that we are recommending should be established are carefully set out in Professor Kennedy's report. If we want to avoid the trap of establishing a pointless extra tier of bureaucracy, we must be clear that the council should have a range of reserve powers to use in certain situations.

It is to avoid the suggestion that this is a pointless tier of bureaucracy that we have brought forward these proposals. We do not want the council to become a talking shop, and it must fulfil a range of specific and valuable functions that will enhance the concept of professionally led self-regulation. Indeed, it must increase public support and confidence in the system of professional self-regulation. I would be the first to acknowledge that the professions have recently made significant steps forward in their approach to professionally led self-regulation, which is to be welcomed, but it does not subtract from the logic of Professor Kennedy's arguments.

He was mindful of those changes in preparing his report. We strongly support the Kennedy report's conclusions in that respect. I will return to those arguments in favour of the council in a second.

Several hon. Members spoke effectively about important principles that should underpin the work of the council, and I agree with them in general. The hon. Member for North-East Hertfordshire mentioned the need for independence from Government and I strongly agree with that. As he knows, we have been examining ways to strengthen and support further the independence that all Committee members, I think, want. We have tabled several amendments that are designed to do that, and we will come on to them later. We are at one with the hon. Gentleman on that matter, although we will have some difference of opinion about the details. That is to be expected, but I do not think that the principle separates the two sides of the Committee.

The hon. Gentleman also mentioned accountability and the role of Parliament. That is an interesting area. I should make it clear to the Committee that the UK council will not supersede existing lines of accountability for regulatory bodies. Those will remain in place. The council will be given an overarching responsibility for co-ordination and for promoting patients' and the public's interests in self-regulation. Those are important functions. The lines of accountability of the new UK council will be to Parliament, because it will be to Parliament that it submits its report.

The hon. Member for North-East Hertfordshire raised interesting arguments about how that accountability would be expressed in terms of the arrangements that we make in this place. Opposition Members will be glad to know that I am not about to legislate in that area. I do not think that that would be appropriate for Government. As the hon. Gentleman rightly said, such matters are for the House to consider, in the light of how the new council wants to discharge its responsibility of oversight.

Simon Burns (Conservative, West Chelmsford)

Is the Minister worried that the Secretary of State's power to appoint members of the council might compromise its independence?

John Hutton (Labour, Barrow and Furness)

Yes, and that is why we have tabled amendments to make it clear that the NHS Appointments Commission, a special health authority, will be responsible for making the appointments that relate to the Secretary of State's role. The devolved administrations will appoint their members directly, but they will be only three out of 10 lay members. The seven for England will be appointed independently, at arm's length from the Secretary of State. We have listened to the regulatory bodies' concerns about that, and agree with them that the last thing that we want to do is to place a question mark, right at the beginning, over the independence and accountability of the new UK council.

Wherever possible, we must maximise consensus on the UK council's role. We are giving it important tasks to discharge on our behalf. I do not agree with the view that has been expressed that the UK council is something of a sideshow or irrelevance. It will have a central role in shaping and developing future regulatory arrangements in co-operation with the regulatory bodies themselves. The point about independence was well made but I thought that I had addressed it in terms of other amendments. Perhaps we can clarify those issues when we come to them.

On the role of Parliament, matters should be addressed by the House itself. It would not be appropriate for a Minister to tell the House: ''This is how I think that this responsibility should be discharged.'' Ultimately, it has nothing to do with me. My responsibility to the House relates to how I discharge my role as a Minister of State in the Department of Health. It is not to tell the House of Commons how it should organise its scrutiny of the work of the UK council.

The Select Committee on Health, which has been mentioned, already has the power, opportunity and right to ask the GMC and any regulatory bodies to give evidence before it. On occasion, it has invited the GMC to do precisely that. That Committee will be able to continue to develop those lines of accountability. It is right to say that opportunities need to be explored in relation to how the House discharges those responsibilities, but that cannot be done effectively in legislation. We are opening up the council to an accountability relationship with Parliament. That is important and, I hope, generally welcome.

The two issues raised by the hon. Member for Wyre Forest (Dr. Taylor) will largely be dealt with by the orders that establish the new regulatory arrangements, rather than by the Bill. The Bill simply ensures that if those orders were approved in another place, the new nursing and midwifery council and health professionals council will fall within the remit of the UK council.

The health visiting profession will be fully regulated by the nursing and midwifery council, so there is no question of it being spirited away from the jurisdiction and competence of the UK council. If the order establishing the nursing and midwifery council were not to be approved, health visiting would remain subject to full regulation by the UK Central Council for Nursing, Midwifery and Health Visiting. There is no question of any potential gap or loophole in that respect.

In relation to chiropody, the hon. Member for Wyre Forest argued for chiropodists to be directly represented on the UK council. However, it is not for Ministers to determine which members of the regulatory bodies can serve on the council, because the Bill stipulates that that should be decided by the regulatory bodies themselves. I should hope that that would be welcomed on both sides of the Committee in the spirit of encouraging professionally led self-regulation.

Andrew Murrison (Conservative, Westbury)

The difficulty centres on the notion of having a representative from the group of professions allied to medicine, which covers a vast array of professions within the health care sector. Chiropodists are worried that they will not have a voice because, numerically, their membership is dwarfed by that of other groups. Physiotherapists—my wife is one, so I must be careful what I say—are so large in number that they will almost certainly dominate the group, and others may not get a look-in.

John Hutton (Labour, Barrow and Furness)

I understand the hon. Gentleman's argument, and we have designed amendments that try to address the issue. However, we must be clear about the underlying purpose of the proposals. Representatives of the regulatory bodies will be on the council not to represent professional interests, but the regulatory system to which their profession or group of professions is subject. As the Council for Professions Allied to Medicine regulates 12 separate professions, I assume that the hon. Gentleman would argue for one of each to be represented on the council.

Dr. Murrison indicated dissent.

John Hutton (Labour, Barrow and Furness)

He would not. To be fair to him, we are not in the business of trying to arrange for every professional group of health care workers to have a representative on the UK council. The point is to have representatives from each of the regulatory bodies who can draw on their experiences of regulation in their professional sectors.

The Council for Professions Allied to Medicine currently includes 12 bodies and may include many more in future, depending on how the council discharges its responsibilities in advising Ministers about sectors that may introduce professional self-regulation, such as psychology, operating department practitioners, perfusionists and others in the queue of those who recognise its benefits. The logic behind the proposals is not to try to identify and represent on the council every separate professional group, but to ensure that it includes a representative from each of the regulatory bodies. I accept that that raises an issue in relation to the CPSM because it is the largest regulatory body representing health care workers in the NHS, and eventually, I am sure, the private sector. The matter requires further exploration, but we shall do so more fully at a later stage.

In relation to chiropody, it is difficult for me to give the assurance that the hon. Gentleman wants because that would cut across the spirit and the letter of the clause. We are not proposing a separate representative on the UK council from each professional group of health care workers. I hope that I have dealt with some of the hon. Gentleman's concerns.

Clause 23 will broadly do four things. First, it will establish the council. Secondly, it will give the council its functions, which are

''(a) to promote the interests of patients and . . . the public in relation to the . . . ('regulatory bodies') . . .

(b) to promote best practice . . .

(c) to formulate principles relating to good professional self-regulation, and to encourage regulatory bodies to conform to them, and

(d) to promote co-operation between the regulatory bodies; and between them . . . and other bodies performing corresponding functions.''

Thirdly, the clause specifies which bodies come within its remit; there should be no ambiguity about that. Finally, it will give effect to schedule 7.

The new council will strengthen public confidence in professional self-regulation by acting as an independent defender of patients' interests. It is important to make it clear that the council is not, and should never be seen as, a substitute for professionally led self-regulation. Our system of regulation will be enhanced by greater co-ordination, consistency and accountability, and that is what clause 23 seeks to provide.

The proposals take their cue from Professor Kennedy's report, which states:

''The regulatory bodies, embracing . . . matters to do with safety, quality and standards as well as the competence of healthcare professionals, must themselves be co-ordinated and their efforts aligned by some overarching system.''

As the Consumers Association and the National Consumers Council have said, the regulators' accountability needs to be clearer and more consistent. The GMC said that its accountability was largely implicit and that that was unsatisfactory. The clause will remedy that by requiring regulators to conform to principles of good regulation and providing for effective scrutiny where necessary. As well as greater accountability, the new council will promote greater consistency. Professor Kennedy was keen for that and strongly argued for it. In the report, he said:

''Duplication must be reduced. Equally, holes in the system must be stopped. Only in this way will the fragmentation and lack of clarity about responsibility for regulating the quality of healthcare, which was such a feature of Bristol, be addressed.''

The BMA also supports the creation of the council and have argued that it will give consistency of action across the professional regulatory bodies.

To sum up our intentions in the words of the Kennedy report, we believe that

''regulation of the healthcare professions must be seen in the round and organised accordingly.''

That is what clause 23 seeks to do. I am glad to say that regulatory bodies in general have given the new council their support. We are aware of some of their concerns, particularly on clause 25, but they have been generally supportive and have said that, as regulators of the health professions, they welcome steps to promote best practice and common principles in the interests of patients. They also said that they support the proposed function of the new council as set out in clause 23(2) and want to be held clearly to account for what they do.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

It would be inappropriate to seek a debate at this point because we will have one under clause 25. However, paragraph 23(2)(a), (b) and (d) includes the word ''promote''—that was presumably chosen for a purpose—as opposed to choosing the expression, ''seek to ensure''. Is that to make sure that clause does not appear to have a directional function, or is it taken from the Kennedy report, or another general framework with which it is consistent?

John Hutton (Labour, Barrow and Furness)

The wording in the 23(2)(a) is consistent with the recommendations of the Kennedy report. The council's powers of direction which appear under clause 25 are separate matters. The exercise of such powers and the circumstances in which they can be used are defined in clause 25. When I described why we have decided to establish the new council, I said that it is important that those interests that we have identified in 23(2)(a) are promoted because that is the purpose and rationale of an effective system of professional self-regulation. That paragraphs states:

''interests of patients and other member of the public''

It is difficult to imagine any other set of underlying principles on which we could rest a system of professionally-led self-regulation.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

That is a helpful answer. Is the Minister's view that one can only adequately promote the interests of patients and other members of the public through this body with a non-professional majority, however slim? The corollary is that when there is a professional majority, there may be tension between the promotion of the interests of patients and other members of the public, and the promotion of the interests of the profession.

John Hutton (Labour, Barrow and Furness)

The hon. Gentleman tabled an amendment to explore these issues, but Kennedy was clear that the best people to represent the views of patients and the public are the patients and the public, not members of professional groups or regulatory bodies. There is an inescapable logic behind that argument and we shall return to the matter later this morning when we discuss another amendment tabled by the hon. Gentleman.

I am grateful for the general support that Committee members have expressed for establishing the council. I understand fully that the regulatory bodies and Conservative Members are concerned about the way in which the council will discharge its functions and we shall debate that shortly. However, I am encouraged by the strength and support that has been expressed today for the principle behind the establishment of the council.

Question put and agreed to.

Clause 23, as amended, ordered to stand part of the Bill.

Schedule 7 - The Council for the Regulation of Health Care Professionals

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

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.'.

Ann Widdecombe (Conservative, Maidstone and The Weald)

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.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

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.

Oliver Heald (Conservative, North East Hertfordshire)

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?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

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.

Oliver Heald (Conservative, North East Hertfordshire)

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.

Andrew Murrison (Conservative, Westbury)

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?

Oliver Heald (Conservative, North East Hertfordshire)

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—

Simon Burns (Conservative, West Chelmsford)

Two.

Oliver Heald (Conservative, North East Hertfordshire)

Two from each state. The House of Representatives has a population-weighted franchise. I am interested to see whether the Minister is prepared to consider the matter more fully.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

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.

Oliver Heald (Conservative, North East Hertfordshire)

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.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

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?

Oliver Heald (Conservative, North East Hertfordshire)

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.

Richard Taylor (Independent, Wyre Forest)

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.

Oliver Heald (Conservative, North East Hertfordshire)

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.

Richard Taylor (Independent, Wyre Forest)

My understanding is that if the appointments are made by the independent appointments commission, which amendment No. 203 suggests will be the case, they will not be Government appointments to the same extent.

Oliver Heald (Conservative, North East Hertfordshire)

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?

Richard Taylor (Independent, Wyre Forest)

I shall wait to hear the Minister's comments and hope that they clarify the position.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

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.

Richard Taylor (Independent, Wyre Forest)

All that I am trying to address at the moment is independence from the Government. I believe that to be the most important aspect.

John Hutton (Labour, Barrow and Furness)

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.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

They are concerned about it.

John Hutton (Labour, Barrow and Furness)

I think that that point is, however, accepted by the GMC and the other bodies, who broadly support the establishment of the UK council. The GMC has expressed support for the principle of a lay majority on the council.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

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.

John Hutton (Labour, Barrow and Furness)

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.

Oliver Heald (Conservative, North East Hertfordshire)

The Minister is absolutely right that that amendment changes the circumstances, and it is very welcome. However, the issue remains of the balance between regulators and lay members. The Minister still needs to address the subject of equality and balance.

John Hutton (Labour, Barrow and Furness)

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.

Simon Burns (Conservative, West Chelmsford)

Oh yeah?

John Hutton (Labour, Barrow and Furness)

Yes, it was. I can assure the hon. Gentleman of that.

Simon Burns (Conservative, West Chelmsford)

But did the Minister decide that it was the amendment that he wanted to table after he had seen our amendment, in all its wisdom?

John Hutton (Labour, Barrow and Furness)

I can honestly say to the hon. Gentleman—of course, everything that I say is honest—that I had not seen his amendment.

Simon Burns (Conservative, West Chelmsford)

I do not believe that. [Hon. Members: ''Oh!'']

Ann Widdecombe (Conservative, Maidstone and The Weald)

Order.

John Hutton (Labour, Barrow and Furness)

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.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Amendment No. 203 states:

''The Secretary of State may direct a Special Health Authority''.

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?

John Hutton (Labour, Barrow and Furness)

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.

Andrew Murrison (Conservative, Westbury)

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.

John Hutton (Labour, Barrow and Furness)

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.

Andrew Murrison (Conservative, Westbury)

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''.

John Hutton (Labour, Barrow and Furness)

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.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

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.

John Hutton (Labour, Barrow and Furness)

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.

Oliver Heald (Conservative, North East Hertfordshire)

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.

John Hutton (Labour, Barrow and Furness)

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.

Oliver Heald (Conservative, North East Hertfordshire)

Will the Minister think about the matter over Christmas?

John Hutton (Labour, Barrow and Furness)

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.

John Baron (Conservative, Billericay)

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.

John Hutton (Labour, Barrow and Furness)

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.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

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.

John Hutton (Labour, Barrow and Furness)

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.

Oliver Heald (Conservative, North East Hertfordshire)

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.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

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:

''It''—

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''—

not professions—

''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—

''4A (1) The Secretary of State may direct a Special Health Authority to exercise his function of appointing members of the Council under paragraph 4(1) (e).

(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.]

Oliver Heald (Conservative, North East Hertfordshire)

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?

John Hutton (Labour, Barrow and Furness)

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.

Oliver Heald (Conservative, North East Hertfordshire)

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?

John Hutton (Labour, Barrow and Furness)

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.

Simon Burns (Conservative, West Chelmsford)

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?

John Hutton (Labour, Barrow and Furness)

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.

Oliver Heald (Conservative, North East Hertfordshire)

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?

John Hutton (Labour, Barrow and Furness)

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.

Simon Burns (Conservative, West Chelmsford)

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.

John Hutton (Labour, Barrow and Furness)

The hon. Gentleman must have unique access to non-repayable loans, and he must tell me where he gets them.

Ann Widdecombe (Conservative, Maidstone and The Weald)

Order. Debates on finance will be better conducted under the next group of amendments. We are now on amendment No. 227. May I ask the Minister, and any other hon. Members who intervene, to direct themselves to that amendment?

John Hutton (Labour, Barrow and Furness)

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.

Oliver Heald (Conservative, North East Hertfordshire)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Oliver Heald (Conservative, North East Hertfordshire)

I beg to move amendment No. 228, in page 74, line 30, leave out

'on such conditions (if any)'.

Ann Widdecombe (Conservative, Maidstone and The Weald)

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).

Oliver Heald (Conservative, North East Hertfordshire)

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.

Simon Burns (Conservative, West Chelmsford)

May I return to my earlier intervention on the Minister on the previous amendment? It now seems to be a more appropriate time and I should like more information from the Minister about the loans.

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?

John Hutton (Labour, Barrow and Furness)

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.

Oliver Heald (Conservative, North East Hertfordshire)

Yes, they all are.

John Hutton (Labour, Barrow and Furness)

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.

Standing Committee A

Schedule 7 - The council for the regulation of health care professionals

Alan Hurst (Labour, Braintree)

I remind the Committee that with this we are taking 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).

John Hutton (Labour, Barrow and Furness)

I have absolutely no recollection of where we were when we broke up at one o'clock. I think that I was dealing robustly and efficiently with the points raised by Opposition Members.

Simon Burns (Conservative, West Chelmsford)

Perhaps I can help the Minister. He was being rather rude about the important point of loans.

John Hutton (Labour, Barrow and Furness)

Ah, yes, it is coming back to me. I was curious that Conservative Members had found the holy grail of loans; something called a non-repayable loan, which was described as the ultimate piece of creative accountancy in terms of the Government's resource and cash allocations. Personally, I have never come across a non-repayable loan, but I wait to be pleasantly surprised.

Simon Burns (Conservative, West Chelmsford)

I can give the Minister an example involving hundreds of millions of pounds in the 1970s, when the Labour Government wrote off loans given to nationalised industries.

John Hutton (Labour, Barrow and Furness)

Very good. I am sure that that is absolutely right, but I have a vague memory in the back of my mind that the Opposition began our discussions on the Bill by inviting me not to refer to the previous Conservative Administrations from 1979 to 1997. I have tried hard not ever to refer to that period, but I have failed; I have succumbed and made a reference on occasion. Part of me would like to blank out as much of that period as possible because it was a

gruesome time for many people in the national health service. However, I am interested in the fact that the hon. Member for West Chelmsford (Mr. Burns) wants to highlight a period way back in the early 1970s while admonishing me for referring to an Administration that left office only four years ago. We will not explore that point.

Oliver Heald (Conservative, North East Hertfordshire)

Will the Minister give way?

John Hutton (Labour, Barrow and Furness)

No.

Oliver Heald (Conservative, North East Hertfordshire)

It is not on that point.

John Hutton (Labour, Barrow and Furness)

Oh, go on then.

Oliver Heald (Conservative, North East Hertfordshire)

I am grateful to the Minister; he has been generous on this occasion. We are talking about the money and the conditionality for funding, as well as loans. The estimate of the Bill's financial effects states:

''The creation of the Council . . . will have negligible effects on manpower. There will be a small financial cost.''

What is the budget for the body?

John Hutton (Labour, Barrow and Furness)

We have not fixed a final and definitive budget because the council has not come into existence. Nor have there been discussions with the officers of the council. It will obviously cost money, and not the non-repayable kind; once the money is spent, it cannot be spent again. There will come a time when I will be able to give more information about the budget of the UK council. I do not think that it will be hugely expensive, but we need to make specific provision for it in future years.

This morning we were dealing with the issues of loans and conditionality, and the amendments were of a probing nature. Clearly, the amendments are not serious in terms of their implications for the funding of the council. They would mean that the Secretary of State would not be able to discharge his value-for-money and public-accountability function and that none of the devolved Administrations would be able to support the work of the UK council, even though it is designed to work on a UK basis. That would be nonsense.

The question on funding is fair, but the hon. Member for North-East Hertfordshire will have to wait a little longer before I can give him anything more definitive. The important point is that the ''conditions'', referred to in paragraph 13, will not be about smuggling in checks and controls on the independence of the UK council through the back door that we have already removed from the front door through Government amendments to the schedule and clause. We are very clear about the need for the council to operate at arm's length from Government and Ministers. The changes that we have proposed to the Bill will reinforce that independence.

The provisions here are necessary, for the reasons that I have given. It is certainly our intention that if any conditions to the powers are imposed by the Secretary of State, it is to be done strictly within the narrow confines of the issues that I have raised today.

Oliver Heald (Conservative, North East Hertfordshire)

These are probing amendments, and I fully accept that they are full of technical deficiencies. They were designed to raise the important issue of the independence of the council where money is concerned. Money is very important if a body is to be independent. It must have adequate funding, and be sure that it can fulfil its duties. One duty of this body is to refer cases to court. These are fitness-to-practise cases about which there is a conviction that the final decision taken is either unduly lenient or should not have been made. There may be cost implications if a body refers a case to court and then loses. To be a bold regulator, or to feel independent and able to do its job, a body needs enough funds to meet liability for costs and to investigate cases properly.

We are worried because we do not know what the budget is. We are told that strings can be attached to the funding, and the Minister says that some will relate to fraud. However, we do not know what they will be. Perhaps fraud is a concern, but I would have thought that such a body—full, no doubt, of the great and good—that is regulating other professional bodies is unlikely to be the site of a great deal of fraud. Perhaps it is sensible to have a few conditions of that sort, but what we really need is an assurance that there will be enough money to allow proper independence without strings attached that will interfere with the council doing its job properly.

Despite the Minister promising at the outset of our debates to give us the draft regulations, he has not done so. On funding for the various bodies that are to be set up, we have not had from him the minimal assurance that there will be adequate funding for them to do what they are supposed to do. The Parliamentary Under-Secretary of State for Health, the hon. Member for Salford (Ms Blears), was not even prepared to concede that there would be as much money available for patients forums as there currently is for community health councils.

The Minister of State will not give us a clue as to what the small financial cost referred to in the estimate is. If he knows that it is small, he must have a rough idea of how much it is; otherwise he might simply say, ''a financial cost'', or, ''some amount''. Are we talking about £10 million, £5 million, £20 million or £100 million? What is small in this context? I will happily give way to the Minister if he can tell us what we are talking about, money-wise.

John Hutton (Labour, Barrow and Furness)

I want to correct two inaccuracies that the hon. Gentleman has just repeated. I did not give an assurance that I would produce regulations for the Committee, because those have not been prepared. I made that very clear. I said that if any of them were prepared in time to be shared with the Committee, I would ensure that that happened. The hon. Gentleman is misquoting me.

On the UK council, I made it very clear in my remarks—perhaps the interval has blurred the hon. Gentleman's memory—that the council would be adequately and properly resourced to discharge its functions. I am not able to give him a detailed budget, but it will certainly be less than £5 million.

Oliver Heald (Conservative, North East Hertfordshire)

I am grateful to the Minister for that helpful reply. In a moment, I will find the place in the record of the beginning of our proceedings where he mentioned giving us documents. Perhaps I got the wrong impression, and he was not intending to be as helpful as he has sometimes been, or claims to have been.

The sum is less than £5 million. Is that enough? How many cases does the Minister estimate would be taken to court each year? What are the other significant elements of cost? If there are negligible manpower effects, does that mean that no one is going to be employed by this body? It seems unlikely, given the contents of schedule 7. Roughly, how many people are to work there? Is the Minister able to give us some sort of picture of what this body will be like? Will it be a body that resides in the premises of the Health Professions Council, in Kennington Park road? Or is it going to be based at Richmond house? Is it just a small room with a couple of people in it, or is a decent office block with 20 or 30 people working in it? Can the Minister flesh out the details of what this body is to be?

John Hutton (Labour, Barrow and Furness)

I have tried to be helpful to the Committee, but I cannot tell the Committee today precisely how many staff the UK council will employ. Neither can I say, with the greatest respect to the hon. Gentleman, where it is going to be based. No such decisions have been made. Of course those types of decisions need to await the appointment of certain key officers of the UK council, who will be entrusted with the responsibility of administering it. The hon. Gentleman must know perfectly well from his experience as a Minister that these are not questions that I can answer in detail today, and not because I am withholding information from the Committee. Quite honestly and obviously, no Minister would be in a position to provide the answers that he is seeking at this moment.

Oliver Heald (Conservative, North East Hertfordshire)

We have obviously taken the matter as far as we can. These amendments are not designed to be put to a Division, and we should return to the subject on report. Obviously, if the Minister is able to write to me over Christmas, setting out any more detail about what is proposed, the size of the body, what assurances could be given that it would have an adequate budget for taking matters to court and issues of that sort, we would be grateful. Equally, we would welcome any assurances that the terms and conditions on which money is given will not be so restricted that the body feels that it does not have genuine independence. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

John Hutton (Labour, Barrow and Furness)

I beg to move amendment No.207, in page 75, line 34, leave out '14' and insert '15'.

Alan Hurst (Labour, Braintree)

With this it will be convenient to take Government amendment No. 208.

John Hutton (Labour, Barrow and Furness)

Amendment No. 207 quite literally corrects a typographical error. It makes clear that the definition of ''financial year'', given in paragraph 14 of

the schedule, also applies to paragraph 15. It is quite simply an amendment that alters one numeral on the face of the Bill. I hope that it will not be seen as controversial.

Oliver Heald (Conservative, North East Hertfordshire)

It would be helpful if the Minister briefly outlined what amendment No. 208 proposes, as it is obviously related to Northern Ireland. I do not know whether it is a typing error, or something similar.

John Hutton (Labour, Barrow and Furness)

I apologise to the Committee. I do not seem to have my notes in my file, which is slightly embarrassing, but down to me.

Amendment No. 208 deals with the Northern Ireland Assembly's powers to request reports from the council, which, under the Bill, the council must comply with. The effect of amendment No. 208 is to specify more exactly than the original Bill the limits to what the council must do in these circumstances. In addition to confining the requests that must be answered to those subjects that come under the Northern Ireland Assembly's jurisdiction, it specifies that the Assembly's request must only be complied with if the subjects relate to Northern Ireland. For example, the regulation of pharmacy is a reserved matter. As it stands under the Bill, the council would be obliged to comply with the request to lay a report before the Northern Ireland Assembly on the regulation of pharmacy generally. This would clearly give the Assembly wider powers than the Scottish Parliament, and I think hat that would be inappropriate. The amendment would confine the scope of a request to report on pharmacy regulation, continuing the example to the regulation of pharmacy in Northern Ireland. That would be a more suitable topic for the Assembly to be asked about.

Simon Burns (Conservative, West Chelmsford)

What would be the implications for the Bill if, at some point in the future, the Northern Ireland Assembly were, regrettably, to be suspended?

John Hutton (Labour, Barrow and Furness)

In that event, the functions would revert to the Secretary of State; that is, the Government. I hope that that will not prove to be necessary.

Simon Burns (Conservative, West Chelmsford)

I understand that if the Assembly is suspended, the Secretary of State and London take over the running of the Province for the period of the suspension. However, would that automatically mean that the powers in the Bill went to London, or would this part of the Bill be rendered inoperable?

John Hutton (Labour, Barrow and Furness)

My understanding is that powers would revert automatically to the Secretary of State. However, this is obviously a fine constitutional issue, and I do not want to mislead the Committee. I shall write to the hon. Gentleman with the information that he requests.

Amendment agreed to.

Amendment made: No. 208, in page 76, line 7, leave out from 'matters' to end of line 9 and insert

'concerning Northern Ireland (''transferred matters'' having the meaning given by section 4(1) of the Northern Ireland Act 1998 (c.47)).'.—[Mr. Hutton.]

Oliver Heald (Conservative, North East Hertfordshire)

On a point of order, Mr. Hurst. We were told earlier that only a very narrow debate, if any, would be allowed on schedule 7 stand part. In the light of the previous discussion, can I ask the Minister a question about paragraph 18?

Alan Hurst (Labour, Braintree)

I will allow the hon. Gentleman to do that in the context of a limited stand part debate.

Question proposed, That this schedule, as amended, be the Seventh schedule to the Bill.

Oliver Heald (Conservative, North East Hertfordshire)

I have just noticed that paragraph 18, which deals with meetings of the council in Northern Ireland, implies that public access to those meetings will be restricted under sections 23 to 27 of the Local Government Act (Northern Ireland) 1972. Is that so? Equally, what will be the position in the rest of the United Kingdom? Will meetings of the council normally be open to the public, or is it envisaged that they will take place in private?

John Hutton (Labour, Barrow and Furness)

The hon. Gentleman is right about paragraph 18. On whether meetings of the council will be open to the public, the answer must be yes. The council will have to consider that issue when it undertakes its programme of work.

Schedule 7, as amended, agreed to.

Clause 24 - Powers and duties of the Council: general

Simon Burns (Conservative, West Chelmsford)

On a point of order, Mr. Hurst. I thought I heard you say that we had approved amendment No. 119.

Alan Hurst (Labour, Braintree)

No, it was amendment No. 199.

John Hutton (Labour, Barrow and Furness)

I beg to move amendment No. 200, in page 29, line 40, leave out from 'ended' to end of line 42.

This amendment, which I was trying to speak to earlier, deals with an inconsistency in the drafting of this clause and of clause 27(1). Subsections 24(3) and (4) are designed to do three things: to prevent the council from intervening in the cases of individuals that a regulatory body is considering; to allow the council to investigate a complaint about maladministration, which is dealt with further in clause 26; and to allow the council to exercise its public interest appeals powers as described in clause 27, but only after the regulatory body's proceedings have ended. As drafted, the words in brackets in clause 24(4), which the amendment will delete, suggest that, under clause 27, the council could take action, even in cases where it was decided not to undertake regulatory body proceedings. It was never intended that clause 27 should apply in such cases, and the amendment will remove any possible inconsistency between the two clauses.

It might also help if I make clear the definition of ''proceedings'' in clause 24(10), which states that

'''proceedings', in relation to a regulatory body, or one of its committees or officers, includes a process of decision-making by which a decision could be made affecting the registration of the individual in question.''

Oliver Heald (Conservative, North East Hertfordshire)

If a regulatory body refuses to investigate a complaint, can the council do nothing?

John Hutton (Labour, Barrow and Furness)

The issue is dealt with in other clauses in terms of the meaning of final decisions, and the council's ability to exercise its right of appeal to the High Court in cases where an unduly lenient decision has been taken. The hon. Gentleman's point is an interesting one and I understand it entirely. In an effort to avoid deciding on a difficult case, proceedings might not be instigated at all. That could raise different subsidiary issues about the work of that regulatory body, which the council itself might want to initiate. However, we are discussing the public interest right of appeal in clause 27 and how it is supposed to be triggered. It is based on an unduly lenient decision of the regulatory body itself. The council might have to consider an alternative route for dealing with such issues, rather than using clause 27 to exercise its right of appeal against unduly lenient decisions.

The hon. Gentleman has raised a fair point about the regulatory body's deciding not to initiate a process. In that event, the matter would have to be dealt with in the first instance by the regulatory body itself. Any suggestion of a deliberate attempt to circumvent natural justice or proper public safety and scrutiny would be a matter of serious concern that the council would want to raise with the regulatory body. I ask the hon. Gentleman to give me time to reflect. In clearing up the inconsistency between clauses 24 and 27, it is certainly not the Government's intention to create a further loophole that would subvert the provision of better public confidence in professionally led self-regulation.

Oliver Heald (Conservative, North East Hertfordshire)

I simply wondered whether the council could undertake a judicial review of the regulatory body's decision under mandamus, and thereby require it to take a decision. Alternatively, is there some method by which it might be required to undertake an investigation? I am clearly happy for the Minister to give the matter further thought—I simply wondered whether a common law route might be available.

John Hutton (Labour, Barrow and Furness)

It might well be, but the problem might also be solved by reference to the Secretary of State's powers in clause 26 to construct a regulation dealing with maladministration complaints. It is important to place on record the fact that it would be difficult to imagine a regulatory body discharging its functions properly in the sort of example that he gave. If there were clear evidence of such a decision by a regulatory body, it would certainly give rise to serious concern in the House and among the public at large. I am not aware of any complaints about regulatory bodies making such decisions, but I am aware that concern has been expressed by the public and Members of the

House about decisions of regulatory bodies' fitness to practise committees, and so on. The hon. Member for Westbury (Dr. Murrison) will be aware of some of those. That complaint is more typical and common than complaints about decisions not to initiate proceedings.

We have tried to draw a distinction between decision-making processes involving the General Medical Council, the General Dental Council and any other body, because there is insufficient evidence to merit a proper fitness-to-practise decision-making process being initiated, and the decisions of the fitness to practise committee. The public interest is served in the case that we have tried to specify in the Bill when an unduly lenient decision raises serious issues of public concern. That is where we envisage council intervention. We certainly do not intend the UK council to have competence to examine every decision by a regulatory body not to initiate proceedings. As a matter of common sense and judgment, that must properly be left to the decision-making processes of the regulatory bodies.

Amendment agreed to.

Amendment made: No. 201, in page 30, line 7, at end insert—

'(5A) The Council may not do anything in relation to the functions of the Pharmaceutical Society of Northern Ireland (or its Council, or an officer or committee of the Society) unless those functions are—

(a) conferred on the Society (or its Council, or an officer or committee of the Society) by or by virtue of any provision of the Pharmacy (Northern Ireland) Order 1976 (S.I. 1976/1213 (N.I. 22)), other than Article 3(3)(e) (the benevolent functions),

(b) conferred as mentioned in paragraph (a) by, or by virtue of, an Order in Council under section 60 of the 1999 Act or an order under section 56 of the Health and Personal Social Services Act (Northern Ireland) 2001 (c. 3) (which makes provision corresponding to section 60 of the 1999 Act), or

(c) otherwise conferred as mentioned in paragraph (a) and relate to the regulation of the profession regulated by the Pharmacy (Northern Ireland) Order 1976.'.

Oliver Heald (Conservative, North East Hertfordshire)

I beg to move amendment No. 233, in page 30, line 12, after 'must', insert

'consult with the profession and'.

Alan Hurst (Labour, Braintree)

With this it will be convenient to take the following amendments: No. 234, in page 30, leave out lines 21 to 23.

No. 235, in page 30, in line 33, leave out from second 'profession' to 'which' in line 34.

No. 236, in page 30, line 34, leave out '(wholly or partly)'.

Oliver Heald (Conservative, North East Hertfordshire)

Under clause 24(7), if the Secretary of State asks for advice--this applies also to other authorities that might seek advice--about the health care profession, the council must give such advice. Amendment No. 233 would require the council to consult the profession when that request is made. It also raises the question of the Secretary of State's purpose in seeking advice and what the Minister has in mind. Does the Minister agree that if the Secretary of State, the National Assembly for Wales, Scottish Ministers, and the Ministry of Health, Social Services

and Public Safety in Northern Ireland asked for advice, consultation would almost inevitably be necessary? The primary purpose of the amendment is to find out what the Minister has in mind for the sort of advice that might be requested.

Section 60 of the Health Act 1999 gives a regulation-making power to the Secretary of State and clause 24(8) adds to that list. Amendment No. 234 would delete a provision in paragraph (e) that allows the Secretary of State to modify

''the range of functions of that body in relation to which the Council performs its functions.''

This is a probing amendment to test whether the provision is necessary and the reasons for it. I invite the Minister to explain exactly what he has in mind in subsection (8)(e).

Amendments Nos. 235 and 236 would delete the words in brackets in subsection (11), which states:

''In this section, 'health care profession' means a profession (whether or not regulated by or by virtue of any enactment) which is concerned (wholly or partly) with the physical or mental health of individuals.''

Why should it not read, ''In this section, 'health care profession' means a profession which is concerned with the physical or mental health of individuals''? I am sure that the Minister will tell me that there are extremely good reasons for that, but so often in the drafting of clauses there is a great deal of surplusage. I should be grateful if he would explain why that drafting is needed.

Peter Atkinson (Conservative, Hexham)

Clause 24(8)(e) states:

''modifying, as respects any such regulatory body, the range of functions of that body in relation to which the Council performs its functions.''

Will the Minister explain that in more detail and give us an example of the sort of change that might lead to the council wanting to modify its existing arrangements?

John Hutton (Labour, Barrow and Furness)

Amendment No. 233 requires that before the council complies with a ministerial request under clause 24(6) to give

''advice on any matter connected with a profession'',

it must consult with that profession. I have several problems with the amendment, although I do not dispute the need for proper consultation. The obvious problem is that it does not describe the consultation process: does it mean a regulatory body or the individual members of a profession?

A practical problem with the amendment is that we envisage the UK council consulting regularly with other regulatory bodies, and, in some cases, the professional membership of those bodies, through consultation proposals, documents, meetings and conferences, which would be a legitimate way for it to go about its business. There is an obvious difficulty in placing on the face of the Bill a requirement to consult with the profession. Ministers might request information from the council and want it at necessarily short notice. They would be aware how these processes work and might require advice quickly about

professional regulation and self-regulation. If the council had to consult before it could give that advice it would not be an ideal situation for either Ministers or the council, which is something that the hon. Member for North-East Hertfordshire, who is a man of goodwill, will understand.

Amendment No. 234 removes one of the three changes that we proposed the Bill should make to section 60 of the Health Act 1999. Amendments Nos. 235 and 236 seek to change the definition of ''health care profession'' in clause 24. The hon. Member for Hexham (Mr. Atkinson) asked me about that definition, which is not new and relates to section 61(b) of the 1999 Act. I remember sitting through many hours of discussion and debate about the meaning of that term. He did not have that pleasure—perhaps I should send him copies of the bound volumes of Hansard so that he can flick through them at his leisure.

I am not disputing that amendments Nos. 235 and 236 have the ring of common sense. However, if we were to amend clause 24 in the way in which the hon. Member for North-East Hertfordshire has suggested, the clause would not cover professions such as psychology that are only partially concerned with health. Furthermore, the clause would not cover professions such as operating department practitioners, perfusionists or physiological measurement technicians, none of which are currently regulated. Depending on the advice that Ministers receive from the Health Professions Council, we want a situation in which we can extend regulation into those areas. In understand that his amendments are designed to probe the rationale behind these definitions and the reasons why they are drafted in this way. However, the definitions are deliberately drafted to allow for the possibility of an expanded regime of self-regulation in those areas.

Andrew Murrison (Conservative, Westbury)

I take issue with the Minister, and professionals such as psychologists would also take issue with him, in excluding their work from the definition of health. The World Health Organisation has offered a useful definition of health, and I am sure that he has heard it many times before. It would certainly include professions such as psychology, along with operating theatre technicians and a raft of people who work within the health service. The wording of the clause in relation to physical and mental health seems verbose. Nothing would be lost, indeed a great deal would be gained in terms of clarity, by deleting ''physical and mental'' because ''health'' is all-encompassing. The wording is unnecessarily complex, and most within health care would know what he meant were he to stick to ''health''.

John Hutton (Labour, Barrow and Furness)

This is one of those occasions on which I must disagree with the hon. Gentleman. The amendments create further doubt as to what is and what is not regarded as a health care profession for these purposes. Including ''wholly or partly'' is designed to ensure that in areas where there is argument and potential doubt, we can ensure that we

are not inhibited from expanding the range of professional self-regulation. If we were to take the words out it would narrow the definition rather than expand it, and we should have an expansive definition rather than a narrow one.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I agree with the Minister's comments, as I did in 1999, on the need to expand professional self-regulation where appropriate. The danger of taking out the provision that there must be a physical or mental health component to the care given might be taken as a signal that we are opening the door to professional self-regulation to people who deal, as they would see it, purely with the spiritual side of health. As a minimum, we must further debate the primary legislation before giving a signal that we are going down that path.

John Hutton (Labour, Barrow and Furness)

To be fair to the hon. Member for North-East Hertfordshire, he is not proposing the deletion of ''physical or mental health'' from the definition. He wants to delete:

''whether or not regulated by or by virtue of any enactment''.

Amendment No. 235 would confine the work of the council to bodies that are currently regulated, and not allow it to consider those that might be regulated in future. That would be daft because it would limit the efficacy of the council.

Amendment No. 236 would omit the words ''wholly or partly'', which are designed, as the hon. Member for Oxford, West and Abingdon (Dr. Harris) said, to give us the greatest possible scope. We want to avoid rather than encourage arguments about whether professions are covered by the Bill.

Amendment No. 234 raises some different issues. The provision the amendment proposes to delete would give us the power in a future section 60 order to adjust the range of functions that fall within the remit of the council to those bodies that are both the regulatory and professional body for their profession. Currently the only such bodies are the Royal Pharmaceutical Society and the Pharmaceutical Society of Northern Ireland. Because of their unusual status, the council only bites on their regulatory functions, which is absolutely correct. This is a piece of flexibility that it is logical to include now, but we have no plans to use it.

The provisions that we are proposing in relation to section 60 are designed to preserve flexibility. The Bill currently gives us the power to alter the range of functions that fall within the remit of the council of those bodies that are both regulatory and professional. Because of that status, the council should have a competence and jurisdiction in relation to its regulatory functions. That is what the clause seeks to do, and I hope that that clarifies the position for the hon. Member for Hexham.

Oliver Heald (Conservative, North East Hertfordshire)

I feel that we have had a ''Titanic'' moment—there was more beneath the surface than I had realised. From what the Minister is saying, some groups or bodies that clause 23(3) proposes could

become part of the scheme in due course: bodies apart from the General Medical Council and the others on the list.

The Minister mentioned psychology and physiological measurement, but if there are several possible applicant groups that will be joining in the regulation, what will be the route for them to do so? Will the logical way be through the Health Professions Council? Can the Minister give us an idea of which bodies might be included? Are there groups requesting to be part of the Health Professions Council, who are they, and is a process underway to join them up, over a period of time, which I had not fully appreciated?

John Hutton (Labour, Barrow and Furness)

There are, and I tried to say which groups they were in an earlier debate. Psychologists have been pushing for a scheme of professional self-regulation for some time, and have been in discussion with Ministers about that. I remember meeting them about 18 months ago to discuss it. It is generally well known that operating department practitioners and perfusionists, examples that I have given previously, are also arguing for professional self-regulation.

We are trying to ensure that the UK council has the flexibility to deal with those organisations as and when they might become part, for example, of regulation through the Health Professions Council. It is through advice from the HPC that Ministers will come to decisions about the need for future regulation in those areas.

Oliver Heald (Conservative, North East Hertfordshire)

That will happen only through the HPC, and it is not thought that any other groups out there would be likely to join. I cannot think of any, but there might be another general council of some sort that I have missed. That was helpful, but can the Minister drop me a line listing the main groups that he is currently aware of that might be future members of the HPC? I think that that might be helpful on Report.

I am still not quite clear what sort of advice the various bodies in clause 24(6) might seek from the council. It states:

''advice on any matter connected with a profession appearing to him or them to be a health care profession'',

but some thought must have been given to what advice might be sought, and in what circumstances. Can the Minister give us some idea of what he has in mind? He mentioned short notice requests being necessary and those interfering with consultation, but I cannot think what circumstances this relates to. Might it be when a crisis occurs at a particular hospital, involving a particular profession, and the Minister suddenly wants urgent advice about regulation?

John Hutton (Labour, Barrow and Furness)

The hon. Gentleman's example is a situation that might occur. Others might come up from time to time.

I am not disputing with the hon. Gentleman the need for consultation with a profession. The UK council should be the body to undertake that on occasion and it is clear from its functions laid out in the Bill that it will have the opportunity to do that. My only dispute with him is that to require it, in the Bill, to consult before giving any advice to Ministers would be to include an unnecessary restriction. I do not think

that that would be a good idea because there must be efficient conduct of business between the council and Ministers.

Oliver Heald (Conservative, North East Hertfordshire)

I am grateful to the Minister for those replies. I hope that he might be able to write to me about the various applicant groups, and, on that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 24, as amended, ordered to stand part of the Bill.

Clause 25 - Regulatory bodies and the Council

Oliver Heald (Conservative, North East Hertfordshire)

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

''take all reasonable steps to''.

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.

Oliver Heald (Conservative, North East Hertfordshire)

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.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

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.

Oliver Heald (Conservative, North East Hertfordshire)

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.

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.

Simon Burns (Conservative, West Chelmsford)

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.

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.

John Hutton (Labour, Barrow and Furness)

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.

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.

John Hutton (Labour, Barrow and Furness)

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.

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.

John Hutton (Labour, Barrow and Furness)

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.

Oliver Heald (Conservative, North East Hertfordshire)

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

John Hutton (Labour, Barrow and Furness)

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.

Oliver Heald (Conservative, North East Hertfordshire)

Will the Minister give way again?

John Hutton (Labour, Barrow and Furness)

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.

Oliver Heald (Conservative, North East Hertfordshire)

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

John Hutton (Labour, Barrow and Furness)

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.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

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.

John Hutton (Labour, Barrow and Furness)

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.

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.

John Hutton (Labour, Barrow and Furness)

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.

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.

John Hutton (Labour, Barrow and Furness)

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.

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?

John Hutton (Labour, Barrow and Furness)

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.

Oliver Heald (Conservative, North East Hertfordshire)

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?

John Hutton (Labour, Barrow and Furness)

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.

Oliver Heald (Conservative, North East Hertfordshire)

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?

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.

Oliver Heald (Conservative, North East Hertfordshire)

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.

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.

Oliver Heald (Conservative, North East Hertfordshire)

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.

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.

Oliver Heald (Conservative, North East Hertfordshire)

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.

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.

The rest of the debate is in Hansard.