NHS Reform and Health Care Professions Bill

Public Bill Committee, 13 December 2001.

Standing Committee A

Clause 26 - Complaints about regulatory bodies

Alan Hurst (Labour, Braintree)

I remind the Committee that with this we are taking the following amendments: No. 240, in page 31, line 16, leave out 'must (or need not),' and insert 'may'.

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

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

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

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

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

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

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

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

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

Oliver Heald (Conservative, North East Hertfordshire)

On a point of order, Mr. Hurst. As we enter the last lap of the Bill, I seek your guidance. We have missed debates on clause 8 on the funding of primary care trusts, clause 20 on the abolition of community councils, clause 21 on the joint working with the prison service, a number of amendments, a new clause and so on. Can the Programming Sub-Committee influence, in any way, the amount of time available on Report for consideration of those matters? There is already a programming motion that allows for a day on Report and Third Reading, but that may not be enough. Because of the way in which programming works—undesirable as that is—we somehow never have the opportunity to debate important matters.

Alan Hurst (Labour, Braintree)

It is open to the Programming Sub-Committee to consider matters further and, if it so wishes, I would be in a position to receive such a request.

Laura Moffatt (Labour, Crawley)

The matters under consideration are of enormous importance and concern to regulatory bodies. It is my sincere hope that due consideration will be given to the procedure referred to in amendment No. 246 because it is incredibly important. As I said earlier, it is important that there should be confidence in the system.

Simon Burns (Conservative, West Chelmsford)

I listened with interest to the hon. Lady, and it sounds as if a Government concession is on its way. We cannot anticipate the Minister's speech, but to what extent is the concern that she expresses hers, or has it come from the Minister's channels?

Laura Moffatt (Labour, Crawley)

It may be of interest to Opposition Members to know that I met those involved in the matter, so it does concern me.

Simon Burns (Conservative, West Chelmsford)

The hon. Lady has also had deep discussions with the Minister's parliamentary private secretary during the past three minutes.

Alan Hurst (Labour, Braintree)

Order. We are clearly ranging beyond points of order into debate.

John Hutton (Labour, Barrow and Furness)

On Tuesday, we had a good debate on clause 26 and its purpose, and I am grateful to Opposition Members and to my hon. Friend the Member for Crawley for participating in that useful debate.

We need to refresh ourselves on the purpose of clause 26. The Secretary of State will have the power to make regulations that will allow the council to take on a complaints or ombudsman-style function in relation to the regulatory bodies over which it has jurisdiction. Hon. Members will be aware that existing ombudsmen have no jurisdiction over the regulatory bodies. At present, the Parliamentary Commissioner for Administration and other ombudsman confine their activity to public bodies or those bodies that are funded by public funds. Neither of those groups includes the General Medical Council, General Dental Council or other bodies under debate here.

The question that we need to consider as a Committee, and ultimately as a House, is whether there should be, for the first time, a proper ombudsman or complaints-type function in relation to the work of the eight regulatory bodies. That is essentially the issue that we have to consider.

It is true to say, and it is important that I make it clear, that when we consulted on the question in the summer, the regulatory bodies expressed concerns about a complaints or ombudsman-style approach to dealing with these issues. It is perfectly fair and proper for their concerns to be raised in the way that they have been. That is, after all, why we sought their opinion.

However, there is a strong case to be made for such a function in relation to the work of the regulatory bodies. The question is who should exercise that function and how should such a scheme be brought into existence. It will be clear to any hon. Member who has considered the Bill that, rather than setting that out on the face of the Bill a fully operative complaints or ombudsman-type scheme, we have chosen, in clause 26, to give the Secretary of State the power to make regulations to set that up, and the scheme would then be administered by the Council for the Regulation of Health Care Professionals.

We have not yet decided whether that should be a function of the council, but we do want the option at a later point, if that is the decision that we reach. There will need to be further consultation with the regulatory bodies, and the council itself, once it is established. We should at least have the opportunity of setting up a scheme to be operated in these circumstances.

That is some of the background and the context of the scheme. It is ultimately for the House to decide whether the eight regulatory bodies should be subject to a complaints or ombudsman-style investigation procedure. I firmly believe that they should. The question is how, when and where. Those are obviously issues that we will turn at a later stage.

However, today we are discussing amendments Nos. 239 to 246. I have had the benefit of reflecting over the last couple of days on many of the points that have been made by Opposition Members and now by my hon. Friend the Member for Crawley. I will return to amendment No. 246 in a moment.

In relation to substantive amendments Nos. 239 to 245, there is a conflict and a contradiction at the heart of the hon. Gentleman's argument. The conflict is that his amendment, as he knows, relates to clause 26(2) and does not affect the Secretary of State's power to make regulations under clause 26(1). The list of issues covered in clause 26(2) is clearly not, on the face of the Bill, exhaustive. It is simply illustrative of the sort of areas that could be covered by the Secretary of State if he chose to make regulations under clause 26(1). Deleting the paragraphs in 26(2) in the way that the hon. Gentleman suggests would not affect the Secretary of State's power to make regulations in those particular areas.

Oliver Heald (Conservative, North East Hertfordshire)

The Minister is absolutely right. The purpose of these probing amendments is to find out what he has in mind in relation to each of the items that it is suggested should be deleted. The overall position would not be affected; the amendments seek to find out what he has in mind so that we can examine the proposal.

John Hutton (Labour, Barrow and Furness)

In that case will the hon. Gentleman confirm whether amendment No. 246 is a probing amendment?

Oliver Heald (Conservative, North East Hertfordshire)

No, it is not. I understood the Minister to say that he was dealing with all the amendments apart from No. 246. That was how he prefaced his remarks. My remarks are intended to deal with all the amendments up to No. 245, but not No. 246.

John Hutton (Labour, Barrow and Furness)

I am still a little confused about what is a probing amendment and what is not. Is amendment No. 245 a probing amendment?

Oliver Heald (Conservative, North East Hertfordshire)

Yes. The amendments up to No. 246 are probing, although, obviously in the light of the Minister's answers, one might decide that the clause stand part debate should be a more substantive vote.

John Hutton (Labour, Barrow and Furness)

I am not sure whether there will be a clause stand part debate, but that is obviously a matter for the Chairman.

Oliver Heald (Conservative, North East Hertfordshire)

That might be affected by the Minister's answer.

John Hutton (Labour, Barrow and Furness)

In that case I shall cut short my remarks about the substantive features of the amendments, if they are probing.

There is essentially a conflict between what is proposed and what the effect of that would be. Amendment No. 245 would create a duality between the Secretary of State still having his powers in all of these areas, and the council having a similar jurisdiction to the council to lay down procedures in precisely the same areas. There would be a clear conflict between what the Secretary of State could do and what the council could do, and that would obviously be extremely undesirable.

I accept that the amendments are broadly probing amendments.

Oliver Heald (Conservative, North East Hertfordshire)

Not amendment No. 246.

John Hutton (Labour, Barrow and Furness)

I understand that, but amendments Nos. 239 to 245 are probing amendments. On Tuesday the hon. Gentleman said that such matters should not be regulated by the Secretary of State at all.

If we were to accept amendments Nos. 239 to 245, we would find ourselves in the strange position of having taken away from the House the opportunity to scrutinise, whether by the negative or affirmative resolution procedure, some areas of substantial importance in relation to how any future complaints or ombudsman-style scheme should operate under clause 26. Parliament would be left with debating paragraphs (b), (f), (g), (h) and (j)—procedural matters that in the normal run of things would not be proper subject matter for affirmative resolutions in both Houses of Parliament.

The amendments are potentially contradictory and would provide less effective parliamentary scrutiny, whether under the negative or affirmative resolution procedure, than the hon. Gentleman would have intended.

Let me deal with some of the points that the hon. Gentleman wanted me to clarify. The kinds of matters that the complaints system will cover include avoidable delay, faulty procedures or failing to follow correct procedures, any perceived unfairness, bias or prejudice, giving advice that is misleading or inadequate, refusal on the part of the regulatory body to respond quickly and reasonably to questions that have been asked, discourtesy to complainants and the regulatory bodies and failure properly to apologise for errors that have been acknowledged. Those are typically the subject matter of complaints to ombudsmen, and they are what we have in mind in relation to any future scheme in this context.

Amendment No. 245 would allow the council to adopt such procedure as it thinks fit. We envisage that the regulations will permit the council to decide on its procedures, but some matters should properly be specified in regulations, such as ensuring that the regulatory body that was complained against had an opportunity to respond.

Amendments Nos. 239 and 240 concern who is entitled to complain and what sort of complaints the council can deal with. As the hon. Member for West Chelmsford (Mr. Burns) said on Tuesday, we would not want to leave the council completely unable to filter the complaints that it receives. He referred to the constituent from hell—a graphic, but fair example. Such issues should properly be dealt with in some procedural form, whether by the council or, as we propose, by the Secretary of State through regulations. Like all the other areas in which regulations may be made under the clause, it will be a matter for the Secretary of State, who is accountable to this House, to decide in co-operation with the council.

Equally, some matters will properly be excluded from investigation by the council—for example, cases that are currently before the health committee of a regulatory body or a fitness to practice committee. Amendment No. 241 would remove the power of the Secretary of State to make regulations about such excluded areas, which would be a mistake. They should be established clearly in advance so that people know precisely where they stand—both the complainant and the body, in this case the council, that could be charged with the responsibility of dealing with the complaint.

Amendments Nos. 242 and 243 would exclude from regulations the procedures to be followed by those making a complaint and by the council in its investigation. It is perfectly proper to include arrangements for regulations for those. Some concern was expressed on Tuesday about provisions concerning payment in relation to investigations. Amendment No. 244 would make it less clear that the Secretary of State could make regulations about such payments. As we discussed then, and I confirm today, it will be possible for the council, if it chooses, to use the services of private investigators, although an alternative will be for it to employ its own investigative staff. That will be for the council to decide, but we do not expect it to use private investigators frequently.

Amendment No. 245 would allow the council to follow whatever procedure it thought best in investigating complaints. However, only the Secretary of State can make regulations. I believe that, for the fair running of the system and public confidence in it, those regulations should be clearly laid down.

Another concern that has been expressed about paragraph (a) is the definition of who can make complaints. It is a characteristic of all similar schemes operated in this country to have a threshold that a complainant must establish in order to make a proper, valid complaint. That is often that someone has been harmed or affected by the decision of the body that is the subject of the complaint. Such a definition is, broadly, the territory in which we want to specify who can make a complaint. The hon. Member for West Chelmsford made effective points about the need for a filter. That is broadly what we intend the provisions to cover, as I said earlier.

The most central argument today is not about the merits of having an ombudsman or complaints procedure, but that is a substantial issue. My sense is that the Committee broadly favours, at least in principle, having such a complaints or ombudsman-style arrangement for the regulatory bodies. I do not think that the hon. Gentleman opposes in principle the idea of a complaints procedure.

We will have to return to that issue later, but the more substantive issue raised by the amendments is who, ultimately, should scrutinise or take responsibility for the complaints procedure, establish it and clarify the limits and jurisdictions of the ombudsman-style body—in this case, the council. The Bill proposes that the Secretary of State should make regulation for that under, in this place, the negative resolution procedure. That concerns Committee members on both sides as well as the regulatory bodies.

There is quite an argument to be had about that. Having reflected carefully on what has been said, I add a few observations. The full-blown ombudsman-style arrangement that we are proposing is an unprecedented scheme. We propose to establish it by regulations, which is not, I think, objectionable per se, but those regulations will be made by the negative resolution procedure. The full detail of the scheme will be dealt with in the way in which we usually deal with such regulations: there will be no guarantee of a debate and no certainty of a vote on the Floor.

Given the substantive nature of what we are discussing, I have given the matter careful consideration and taken advice from the parliamentary counsel and others about whether this is the right way to set up such an important complaints scheme. I have also carefully examined whether we could accept amendment No. 246. Sadly we cannot accept that particular amendment, but I have thought further about the issues and I accept in principle that this important matter lends itself to the affirmative, rather than the negative, resolution procedure. I am grateful to Committee members on both sides for making those points so effectively.

Simon Burns (Conservative, West Chelmsford)

Will the Minister clarify one point? I fully understand what he is saying and I am grateful for it, but, although he concedes that the regulations should be made under the affirmative resolution procedure, he says that our amendment is not acceptable and that he will reflect on the matter. Where will the matter go from here? Is our drafting wrong, and will the Minister draft a better, relevant amendment on Report?

John Hutton (Labour, Barrow and Furness)

The amendment can be better drafted. The amendment should affect clause 36 and not clause 26, so I hope that we will be able to sort this out in Committee. It depends on when the Committee finishes its business. We hope to table a suitable amendment to clause 36 today, but if it proves impossible to do that in Committee, we shall do so on Report.

Oliver Heald (Conservative, North East Hertfordshire)

On a point order, Mr. Hurst. In the light of this happy event, if time proves pressing, would you accept a manuscript amendment?

Alan Hurst (Labour, Braintree)

If that were the wish of the Committee, I should be happy so to do.

John Hutton (Labour, Barrow and Furness)

I shall reciprocate in kind by trying to ensure that a manuscript amendment is available before we finish today's business. Unfortunately, however, I cannot guarantee that—indeed, I do not even know at what time we will finish. None the less, in the rather surprising spirit of co-operation that has been engendered by this morning's debate, we shall do our best to meet the Committee's wish that the matter be dealt with in Committee. I do not know what the precise procedure is in such cases, but given that I hijacked an Opposition amendment with Government amendment No. 187, I am happy for the hon. Gentleman and my hon. Friend the Member for Crawley to add their names to it. Having engendered a pre-Christmas sense of warmth and hospitality, I had better not blow it.

Simon Burns (Conservative, West Chelmsford)

I do not want to push my luck, but may I assume from the Minister's comments that if parliamentary draftsmen cannot prepare the relevant amendment in time, the Government will table it on Report?

John Hutton (Labour, Barrow and Furness)

Yes. That is what I said, and I am happy to reconfirm it. Hon. Members are clearly concerned that we should deal with the issue, and that is what we want to do. In the light of the importance of the issues covered by clause 26, a very convincing argument has been made for the need for the affirmative resolution procedure. I am prepared to co-operate fully with the will of the Committee by engineering an amendment for consideration later today, or if that is not possible by ensuring that we amend the Bill on Report.

Oliver Heald (Conservative, North East Hertfordshire)

This is a joyful moment. The Opposition are genuinely grateful to the Minister for giving our amendments and remarks full and due consideration. At the end of the previous sitting, I said that not just the Government but parliamentarians should decide on such matters, and that accepting amendment No. 246 would provide

''a proper guardian for the independence of the council.''—[Official Report, Standing Committee A, 11 December 2001; c. 408.]

I am pleased that the Minister agrees.

The other amendments were probing. There is an argument as to whether the procedures of an independent council such as this should be established by the council or by parliamentarians, but they should not be established by the Government alone. I am prepared to withdraw amendment No. 239 if the Minister will accept amendment No. 246, and on that basis I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Oliver Heald (Conservative, North East Hertfordshire)

On a point of order, Mr. Hurst. In response to my earlier point of order, you kindly pointed out that the Programming Sub-Committee could have a short meeting to discuss issues arising from the loss of some of our business through the untimely action of the guillotine. Would it be appropriate to have a short suspension now and for the Sub-Committee to meet for that purpose?

Alan Hurst (Labour, Braintree)

That is a matter for my discretion. If I were to receive a short note requesting a meeting of the Programming Sub-Committee, I would give it due consideration. However, I do not intend to suspend the Committee at this point.

Oliver Heald (Conservative, North East Hertfordshire)

Further to my point of order, Mr. Hurst. One does not know how fast the Committee will move, but if such a written request were made, whatever the state of the Committee's work, could a meeting of the Programming Sub-Committee be interposed? The Programming Sub-Committee would have to meet prior to Report.

Alan Hurst (Labour, Braintree)

The Programming Sub-Committee cannot meet after the conclusion of the Committee stage of the Bill, so the request would have to be made at an appropriate time prior to that date.

The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill.

Question agreed to.

Clause 26 ordered to stand part of the Bill.

Clause 27 - Reference of disciplinary cases

Oliver Heald (Conservative, North East Hertfordshire)

Clause 27 gives the council the right to refer a fitness to practise decision to the High Court, where the court would have the power to substitute its decision for that of the regulatory body, which is a controversial power. The Royal College of Nursing has sought assurances that cases against clinicians will continue to be heard using the criminal, rather than the civil, burden of proof. It points out that the impact of losing a licence to practise a profession is so serious that this standard of proof, which ensures that the professions retain their confidence in the regulatory process, is justified. Will the Minister assure the RCN that cases against clinicians will continue to be heard using the criminal burden of proof?

The RCN also has concerns about the effect of overturning the decisions of its regulatory body. The council's view will obviously be important because it will deal with protecting the public, but the RCN is concerned about the effect that the clause would have on the standing of the Nursing and Midwifery Council. A party who believes that the correct process has not been followed by a regulatory body can use the current judicial review mechanisms, and there have been many recent examples of that.

Clause 27(4) proposes new powers allowing the courts to review the decision rather than the process. The RCN does not think that the courts would have greater expertise than the regulatory body in deciding the appropriate penalty. It is seeking clarification about the type of cases to which the council may wish to refer, and some strong assurances that the power would be used only in exceptional circumstances. It also points out that the court can make orders regarding the cost of the referral. It is concerned that this could act as a disincentive for regulatory bodies to exercise the full breadth of their powers, and might lead to the suggestion that striking off would be the preferred option in more cases than would be in either the profession's or the public's interest.

The BMA feels that the provision must be narrowly restricted to exceptional circumstances. It would agree to it if it were absolutely clear that it would be used only in exceptional circumstances, and that it would not become routine for GMC decisions to be appealed.

The Chartered Society of Physiotherapists has concerns, pointing out that the health professions order allows for a right of appeal and that, to make a decision on whether something should be referred to the High Court, the council itself will have to undergo an investigatory procedure. Its point is that there could be much added bureaucracy and expense, and more opportunities and processes for investigation than are strictly necessary. In effect, it says that a procedure in which the regulatory body makes a decision, then the council makes a decision and then the court makes a decision should be restricted to the most exceptional cases.

The eight regulators have expressed their concern that there is nothing to ensure that the power to appeal would be used only sparingly. A theme runs through the concerns of all the various bodies. Some are in a position not dissimilar from that of the council. Regulatory bodies with experience of dealing with such matters are all saying, ''Look, this may be all right, but let's keep it restricted to the cases that are the most serious and exceptional.''

Can the Minister reassure me further on the meaning of clause 27? Subsection (1) contains a list of determinations and findings that can be made. It is clear that a relevant decision falling under that subsection will be able to be referred to the High Court if it is unduly lenient. What concerns me is the wording,

''whether as to any finding of professional misconduct or fitness to practise . . . or as to any penalty''.

Paragraphs (a) to (i) seem to contain decisions on sentence. I have not looked at every single one but, to give an example, section 20 of the Osteopaths Act 1993, a standard provision of the kind, makes it clear that there are various types of allegation that can be investigated, and they are listed as

''guilty of conduct which falls short of the standard required of a registered osteopath . . . guilty of professional incompetence . . . convicted . . . of a criminal offence . . . ability to practise is seriously impaired because of . . . physical or mental condition.''

Those are standard allegations for all the professions.

Section 22 of the Osteopaths Act 1993, referred to in clause 27(1)(g) of the Bill says, in subsection (1), that

''it shall be the duty of the Committee to consider''

any of the allegations made under section 20, to which I just referred. Section 22(2) continues:

''If, having considered it, the Committee is satisfied that the allegation is well founded it shall proceed as follows.''

Section 22(4) then lists the penalties, including admonishing, striking off and imposing conditions on practice.

The decision referred to in clause 27(1)(g) is the penalty. That is any step taken under section 22(4) of the Osteopaths Act 1993. The context of that will be that the finding of guilt has been made and what may be appealed or referred to the High Court is the decision on the penalty. As I understand it, that is what the council may find to be unduly lenient, in which case it would refer it.

I do not understand, then, why the words,

''whether as to any finding of professional misconduct or fitness to practise''

are in clause 27(4)(a). The finding in, for example, subsection (1)(g)—relating to section 22(4) of the Osteopaths Act—is the penalty, which might be to

''admonish . . . make an order imposing conditions . . . suspend the osteopath's registration . . . order the Registrar to remove the osteopath's name from the register . . . A conditions of practice order''

and so on.

John Hutton (Labour, Barrow and Furness)

At the end of clause 27(4)(a) there is a reference to ''any penalty imposed''.

Oliver Heald (Conservative, North East Hertfordshire)

Yes, that is what I am asking about. Am I right in thinking that it is the punishment, or the order that has been made, that is to be referred to the court, it having already been decided that there is guilt? When it has been decided that the allegation is well founded, we move on to the next step. Is that the part, the penalty side of the matter, that can be referred to court? I would be concerned if it were being suggested that the High Court could retry the case, and examine the question of innocence. Clearly, there is a difference between deciding whether the allegation was well founded in the first place and the next step—which I think is the one that can be referred to court—of what happens as a result of that.

I do not think that the Minister and I disagree that if the sentence is too lenient there is a good case for referring it to the High Court. If, however, he means that the High Court can start retrying the allegation to establish whether it has been proved, he and I might fall out. The principle of double jeopardy is not established in English law and is rarely approved of. There would need to be an exceptional situation if one were to agree to double jeopardy, where the proving of the allegation was concerned, although I think that the question of the penalty is different.

The decision referred to in subsection (1) seems to be the penalty decision. If the Minister can confirm that that is right, I do not need to say much more about the matter.

Richard Taylor (Independent, Wyre Forest)

May I first say how pleased I am about the Christmas spirit? Whether it is that or a true sense of co-operation, I am delighted by it. I was becoming disillusioned about the chance of making many changes, so this is super.

I support the Opposition Members who pointed out that the BMA and the RCN are bothered that subsection (4)(a) might be used in other than exceptional circumstances. It would disarm their worries if some words from the explanatory notes were quoted in the Bill. These words get it exactly right:

''It is envisaged that the Council would do this in extreme cases where the public interest in having a clearly perverse decision reviewed by a court outweighs the public interest in the independent operation of self-regulation.''

That says it all and it would be splendid were that somehow enshrined in the Bill.

Andrew Murrison (Conservative, Westbury)

I am concerned about double jeopardy. I think that we have before us the suggestion that professionals will be tried by their regulatory bodies but then, if that decision is not approved of because they are found innocent or because the decision is unduly lenient—it is heavily weighted—there is the option of them being tried by the High Court. Clearly, that increases the chance of a decision being made against them.

I cite the spectacle of Mr. Dhasmana, whom many will remember as the third man in the Bristol royal infirmary scandal. Having been found guilty of serious professional misconduct by the GMC, and having quite rightly had limitations placed upon his practice, he was retried within hours by the right hon. Member for Holborn and St. Pancras (Mr. Dobson), who said on ''Newsnight'' that he thought that the GMC had got it wrong and that Mr. Dhasmana should be struck off. That is not for me to judge, but the right hon. Gentleman felt that he was in a position to do so, thereby rubbishing eight months of serious consideration by the GMC and about £2 million of its resources in dealing with this incredibly complex and sensitive matter. I am worried that the council might act similarly. As it is weighted with ministerial appointees, it might be tempted to act in a way that was politically correct or to play to the gallery, thereby laying waste months and months of painstaking and expert consideration of a particular case.

How does the council intend to scrutinise such matters? I assume that it will not involve itself with preliminary proceedings, but we do not know that. Will they be considered in a sub-committee? If so, how will it be constituted? We need more detail about the scrutiny of cases of alleged professional misconduct.

My chief concern is that we have not adequately recognised the expertise of regulatory bodies and the painstaking way in which they dissect cases over many months. Many Labour Members still have in the back of their minds the notion that regulatory bodies are driven by health professions in their own interests. I hark back to a point that was made earlier in our deliberations. We tend to find—anecdotally, I admit—that lay members tend to be less censorious than the professionals sitting on regulatory bodies. I am worried that those bodies will not be given due recognition and that there will be a temptation for the council to refer cases to the High Court. We have received limited guidance about exactly what cases will be referred. Will they be cases of genuine concern or simply those that grab the attention of the media?

John Hutton (Labour, Barrow and Furness)

We have had an important debate in which Opposition Members made sensible and fair comments.

It is important to keep one point firmly in the front of our minds. At present, the only appeal that exists against the decision of a regulator on someone's fitness to practise belongs to the registrant himself. No other remedy is available, either to the regulatory body or anyone else, to query whether those decisions have been in the public interest and properly protect members of the public. The fundamental question for members of the Committee is whether they are content for there to be no such ultimate last-ditch power of review. Our view is clear—the present situation is not satisfactory. That sentiment is shared by the regulatory bodies. They have reservations about the clause—that is fair enough—and I shall try to deal with those in a moment.

No one should interpret clause 27 as calling into question the professionalism or competence of the disciplinary bodies who currently discharge this function. They are doing a good job and protecting the public very effectively. There is no argument about that. The clause is simply an attempt to remedy what is generally perceived to be a loophole, not a subliminal criticism of the work of the regulatory bodies.

Turning to the comments of the hon. Members for Wyre Forest (Dr. Taylor) and for Westbury (Dr. Murrison), we envisage that the clause will work in the same way as clause 25—as a provision of last resort to deal with exceptionally grave cases in which there has been a perverse decision or the public interest has not been fully and properly served. There have been very few such cases—probably only half a dozen in the past four or five years. The power will need to be used only in exceptionally rare circumstances.

If Opposition Members want to reassure themselves, they should have a good look at clause 27(4), which gives three separate thresholds that the council must satisfy before it can refer a case to the High Court. First, it must satisfy itself that the decision has been unduly lenient; secondly, that it should not have been made; and, thirdly, that it would be desirable for the protection of members of the public. I am convinced that the clause does not constitute a right to roam or to interfere with every disciplinary decision taken by the regulatory bodies, and I would not propose it if it would have that effect.

It is worth remembering that—as I made clear in relation to previous amendments, when the Committee accepted my argument—it is the final decisions of the appropriate committee or body that will be made subject to such exercises of the power by the council. If we had decided that earlier decisions—for example, not to investigate a case at all—could be subject to review, that could be seen as driving a coach and horses through professional self-regulation. The provision is based on the fact that we trust the regulatory bodies implicitly to do this work. To give the council a right to appeal or interfere in decisions such as not to initiate proceedings would be a much more serious intervention in the professionally led self-regulation arrangements in which we believe and have confidence. We have tried on several occasions, through amendments and argument, to clarify our intentions and to reassure hon. Members that the Bill does not constitute a loss of faith on our part in professionally led self-regulation or a lack of confidence in those who are doing that work.

The hon. Member for North-East Hertfordshire (Mr. Heald) asked whether findings or punishments would be subject to potential reference to the High Court. The answer is yes in both cases, and rightly so. That is stipulated by subsection (2)(a). It is important that both a decision to impose a sanction and a decision not to do so should be subject to referral. To confine the right to one or the other would not be terribly sensible.

Oliver Heald (Conservative, North East Hertfordshire)

I understand that. It should be viewed in the light of the final words of the subsection, which are

''under the provision referred to in whichever of paragraphs (a) to (h) of subsection (1) applies''.

That seems to relate only to the punishment aspect, not to the part of the hearing that deals with whether the allegation is well founded. To give an example, section 22(4) is the part of the Osteopaths Act 1993 that deals with punishment.

John Hutton (Labour, Barrow and Furness)

I am grateful to the hon. Gentleman for bringing that example to mind. We have always intended that both aspects of a final decision—a decision not to impose a sanction as well as a decision to do so—should be reviewable if the three thresholds in subsection (4) are met and the council is satisfied that a case should properly be referred to the High Court.

Oliver Heald (Conservative, North East Hertfordshire)

If someone is accused of incompetence and the disciplinary body finds that to be the case, so the allegation is proved, two potential options could be to take a disciplinary measure that is too lenient or not to take one at all. The Minister is suggesting that in either instance the matter can be referred to the court. However, that is not really appealing the finding of fact on whether he was incompetent.

John Hutton (Labour, Barrow and Furness)

I shall come to that in a moment, because it relates to the hon. Gentleman's point about double jeopardy. We are referring the decision of the disciplinary committee and, potentially, the council to the High Court.

The hon. Gentleman expresses worries about the powers of the court, in the context of double jeopardy, and the options that it has. In clause 27(8), we have spelt out the options that the court should have and they are the widest range of options possible. The court could review the case itself and decide on appropriate sanctions. Equally, it could refer the case back to the regulatory body for a fresh determination. If, in principle, we accept that the High Court should have such jurisdiction, we should give it the widest number of tools and ones that are appropriate for the variety of cases coming before it.

There has been a misunderstanding that the judgment of the council could be substituted for the verdict of the disciplinary committee of the regulatory body, but that is not the case. I hope that clause 27(8) has made that clear. The role of the council is simply to make a decision using the provisions of the Act. Subsection (4) addresses the referring of such a case to the High Court; that will be the limit of council's responsibility, and it is not to substitute its judgment for that of the regulatory body of the relevant profession.

Andrew Murrison (Conservative, Westbury)

The point that I was illustrating by referring to the right hon. Member for Holborn and St. Pancras was that it takes many months to form judgments on these issues because they are so complicated; the Bristol royal infirmary is a good case in point. My concern is that the judgment that the council comes to will not be sufficiently considered. Given the complexity of the issues and the expertise of those who make judgments—they may have been involved in such matters for many years—I am concerned that we do not know about the structure of scrutiny that is proposed under the Bill and that the judgment could be summary and not well considered.

John Hutton (Labour, Barrow and Furness)

The hon. Gentleman should not write off the council as quickly as that and before it has even been appointed and begun its work. He should not lose sight of the fact that nine representative members from the regulatory bodies will sit on the council. That should reassure him because those will be people with experience of professional self-regulation. The council will not be acting or operating in the dark and it will not be able to act arbitrarily because it will be a public body with statutory responsibilities to discharge. If there is a sense that a decision has been arbitrary, opportunities to challenge and review it are also there. I get the sense that the hon. Gentleman does not want such appeal at all—that is the logical conclusion to his argument. He should address that and give us his opinion.

Oliver Heald (Conservative, North East Hertfordshire)

I did not understand the comments of my hon. Friend the Member for Westbury in the same light as the Minister. To give an example, let us say that there is a case involving a podiatrist and the matter is dealt with by the new Health Professions Council. First, the disciplinary committee hears detailed evidence from podiatrists about the behaviour of an individual and it decides that it shows incompetence but not of the worst sort. The matter then goes to the council, but there might not be a podiatrist on it. Will a hearing take place and evidence be called? How is the council to know whether the decision that has already been taken was reasonable or not? In court, evidence can be heard and findings considered, but what will the council be able to do to help it decide?

John Hutton (Labour, Barrow and Furness)

The council will have to do what it thinks appropriate to reach a decision. I imagine that it would want to review the evidence available to the disciplinary committee or the final decision-making body of the regulatory body. That is entirely appropriate, but it could not reach an arbitrary decision that is not capable of being supported by the facts because that decision would be unreasonable. A number of people, including the registrant and the regulatory body, could seek a review of the council's decision.

The concerns of the hon. Member for Westbury suggest a fundamental lack of confidence in the council. That is untimely because the council has not yet established itself or been able to offer any assurances to the hon. Gentleman on how it will discharge those functions.

Andrew Murrison (Conservative, Westbury)

I am forced to suspend judgment on the council because we do not know exactly how it will work. We have been given a broad brush idea of how it will discharge its functions and assurances that it will investigate only matters of pressing public interest, but there is little to suggest exactly how it will work. I hark back to the way in which such matters are investigated by the regulatory bodies. In general, we are talking about the GMC because most disciplinary cases concern doctors. The GMC does painstaking work to reach incredibly complex decisions and I do not have the feeling from what I have in front of me to examine that the council will act other than as a coach and horses through painstaking, piecemeal work that has been carried out by the regulatory bodies over the course of many months. I should be very grateful if the Minister could set out how the council will work and reassure me because, like him, I am anxious to protect the public.

Alan Hurst (Labour, Braintree)

Order. That is far too long for an intervention.

John Hutton (Labour, Barrow and Furness)

I can only say that the hon. Gentleman has not listened to a single word that I have said, either about the reassurances that I have offered the Committee or my comments on how the council will operate. He is a person of good will and fair judgment and he will understand that I cannot stand up today and tell him how the council in every case that comes before it will make its decision on whether to refer a case to the High Court. I cannot possibly do that. The hon. Gentleman is asking me to do something that no Minister could ever do. However, I can tell him that the procedures must be fair, reasonable and justifiable, because they could easily be challenged by the registrant or the regulatory body if it felt so motivated. I tried to suggest earlier that we believe that there will be very few cases—perhaps one or two a year. His use of the phrase ''coach and horses'', given his observations on the number of such cases that the GMC consider, is, with the greatest respect, laughable.

I think that the hon. Gentleman misunderstands the provision and there is no point in my repeating my assurances because I have done so several times, but, sadly, not one of them seems to have penetrated the hon. Gentleman's mind. That must be my fault and not his, but I recognise my inadequacies in that respect and do not want to detain the Committee further with repetitious arguments. I have tried to clarify some of the issues for the Committee.

The more substantial point raised by the hon. Member for North-East Hertfordshire concerned double jeopardy and I want to say something about that. We envisage the power being used only in extreme cases when the public interest in having a clearly perverse decision reviewed by a court outweighs the public interest in the independent operation of self-regulation. I gave an example earlier of the sort of case in which it could be used and I emphasise that it is a real example. A regulatory body re-admitted to the register a person who had been struck off for circulating paedophile literature. It did so on the grounds that he had done that away from his workplace and not during the course of professional practice. That decision caused enormous concern to the regulatory body, but it could not review the decision. There was no appeal. The hon. Member for Westbury asked me to give an example of a case in which there might be grounds for a right of appeal. Does he not accept that that might be such an example?

The question that should exercise the hon. Gentleman—it does not seem to be troubling anyone else here—is who should do that? Does he want me to do that, or the Secretary of State? I suspect not. Or would he like an independent council, drawing upon the experience of the regulatory bodies, to be entrusted by this House with that responsibility, knowing that it is subject to the full scrutiny of the courts and, of course, the legal rights of the registrant himself? It is a pretty overwhelming case.

Andrew Murrison (Conservative, Westbury)

The Minister makes a good point. I do not know the details of that case, but on the face of it, it sounds abhorrent, and one that should certainly be a candidate for review. But, harking back to the snap judgment of the right hon. the Member for Holborn and St. Pancras on ''Newsnight'', my point is that if we are not in full possession of the facts, and have not had months and months of scrutiny, we might not be as well informed as the regulatory bodies. That is my concern. I simply seek reassurance about how the body will work—no more, no less.

John Hutton (Labour, Barrow and Furness)

I understand that point, and I have been trying to signal to the hon. Gentleman that the body must act reasonably, have a fair procedure for coming to a decision in relation to these issues, as any competent body must do, and satisfy the three separate thresholds that we have laid down before making any determination. It is not then the council's judgment whether a person has been unduly leniently treated or otherwise by the regulatory body; it is the High Court's decision that will ultimately determine this issue. That is a pretty formidable set of reassurances, which I hope, perhaps against hope, that the hon. Gentleman might come to acknowledge at some point.

The hon. Gentleman's analogy with criminal proceedings is largely false. The finding that the High Court, or its equivalent in other parts of the United Kingdom—the High Court in Northern Ireland or the Court of Session in Scotland—could overturn an appeal, would not be a verdict of not guilty, but, for example, a finding that the conduct investigated did not call a person's fitness to practise into question. As it happens, there is a partial precedent for that in the Attorney-General's references under the Criminal Justice Act 1988, upon which the hon. Gentleman might reflect. I do not consider it to be double jeopardy for a higher court to examine whether a lower court has erred in law. Neither would a person, whose case was appealed by the council to the High Court, thereby be placed, in any strict or in any loose sense of the word, in genuine double jeopardy.

It is also worth bearing in mind—this is my parting shot to the hon. Gentleman in the forlorn hope of persuading him to my side of the argument—that in current appeals from decisions of regulatory bodies the courts have generally been very reluctant to overturn regulatory bodies' findings, although they have the power to do so, unless those findings have been plainly wrong. I do not think there will be any reason to assume that there will be any different approach by the High Court in relation to cases that are referred to it under the Bill.

I hope that I have addressed the concerns that have been perfectly properly and fairly raised by Opposition Members. The problem is one of a lack of sufficient safeguards and a potentially serious loophole, which might allow people who should not be practising, to continue to practise.

I do not want to over-egg my pudding, because I have already made it clear that we think this such cases will be exceptional, but there is clearly a risk, and it is a risk that I am not prepared to countenance any longer. The clause creates a simple remedy to the problem, which I believe complies with all the requirements of legal process and the Human Rights Act 1998, by giving the council the power to refer a final decision by a regulatory body on a fitness to practise case to the High Court. The clause, as I made clear, gives the High Court the same powers to reconsider the case that it already has in cases that come to it on appeal by the registrant. Those powers are provided for all civil appeals in the civil procedure rules.

An alternative approach might have been for the regulatory body to be able to appeal against the decision of its fitness to practise committee. That clearly has some attractions and we are obviously aware of the efforts that the regulatory bodies are making in that regard. However, there are formidable legal difficulties in a single legal entity, such as the GMC, appealing against a decision made by one of its own committees. Those issues are being considered, but there are formidable legal difficulties in going down that path.

Our solution is a simple but effective one, which is pretty comprehensively dug in with safeguards of the kind for which the hon. Gentleman is looking, and which offers the public the safety and reassurance that it needs and which I believe it currently does not have.

Oliver Heald (Conservative, North East Hertfordshire)

This has been a fruitful debate. I am grateful to the Minister for giving an assurance that the provision will be used only in the last resort, and that he envisages that very few such cases will arise. I am also pleased to hear that it will not provide an avenue for appeal against a not guilty decision, but will relate to issues such as admonishing those found guilty or restoring them the register.

My hon. Friend the Member for Westbury made a good point when he said that the procedures of the council are important. There is the analogous situation of one's confidence in the Attorney-General, who, as a lawyer, considers all the papers in a proper way. He has years of experience in judging whether a sentence is lenient, and tends to operate in areas where, as a lawyer, he can understand the ambit of sentence in the light of the facts. Some medical decisions are complex, and one can end up arguing about points of medicine that the ordinary layman would not necessarily understand. In a world in which medical specialism is becoming the way forward—there are now far less general physicians and general surgeons—the question of professional competence could raise detailed issues on which the professional conduct committee, which consists of doctors, would hear evidence. The committee would decide whether there was incompetence, and the gravity of it, on the basis of evidence from specialists.

In reviewing a decision and deciding whether to refer it, it is important that the council has the tools not just to read but to understand evidence heard by the professional conduct committee. For example, the council might need access to advisers on particular aspects of medical practice, and it might even want to call witnesses in a small hearing of its own in order to understand the detail of the issues. My hon. Friend the Member for Westbury was right to say that the procedures need to be rigorous, so that cases are referred only when necessary.

As I understand it, where one of the professional conduct committee filtering systems fails, the bereaved, or the relatives of the victim, could apply for judicial review on the ground that the decision of, say, the screening committee of the GMC had not been exercised in accordance with due process of law, or that it operated in an unreasonable way. They could then obtain an order from the court on judicial review, requiring the GMC to investigate, or to pursue an investigation beyond a certain level. Such a review took place in the case of Caryl Holmes, Derrick Dean and Valerie Dean v. the General Medical Council, Dr. M.M. Rahman and Dr. S. Sengupta. The court was happy to order that the investigation continue because there had been an error of law.

The Minister is right to say that there is no matter that the court could not address, but it would be on judicial review if an investigation that perhaps should have been pursued were not pursued. I should like to consider further what the Minister has said, but given what I have heard so far I will not seek to divide the Committee.

Clause 27, as amended, ordered to stand part of the Bill.

Alan Hurst (Labour, Braintree)

I wish to inform the Committee that there will be a meeting of the Programming Sub-Committee on the rising of the Committee at 11.25 am or earlier if an appropriate motion for Adjournment is put and agreed to.Clause 28 Medical practitioners

Clause 28 - Medical practitioners

John Hutton (Labour, Barrow and Furness)

I beg to move amendment No. 249, in page 34, line 16, at end add

'in whose sheriffdom the address in the register is situated'.

Alan Hurst (Labour, Braintree)

With this it will be convenient to take Government amendments Nos. 250 to 254.

John Hutton (Labour, Barrow and Furness)

The amendments relate to provisions in four Acts—the Medical Act 1983, the Opticians Act 1989, the Osteopaths Act 1993 and the Chiropractors Act 1994—and the way in which, in certain limited situations, an appeal against a regulator's decision to remove a person's registration should be handled in relation to the Scottish courts.

For doctors, dentists and opticians, such decisions are those to remove registration on the ground that it has been obtained through fraud or error. I should make it clear that we are not dealing with fitness to practise cases. For osteopaths and chiropractors, the range of registration is broader, and includes the generality of such decisions—for example, where a person applying for registration was not of good character. The fraud and error provisions relate to, for example, a person who applies for registration as a physiotherapist, and presents certificates purporting to show recognised physiotherapy qualifications that are in fact forgeries.

Hon. Members will not be surprised to learn that, in a typical year, perhaps only two or three such appeals are made in respect of all professions throughout the United Kingdom. The Bill will divert those very few cases away from the Privy Council, along with fitness to practise appeals, which I shall discuss in due course. Subsequent clauses will make fitness to practise issues the province of the High Court, the Court of Session in Scotland, or the High Court of Justice in Northern Ireland. In England, the less-serious matters that we are dealing with today will be handled by the county court; in Scotland, we envisage that the sheriff court will handle them.

In Scotland, a professional whose name is to be removed from the register should be able to bring an appeal in a local sheriff court, just as such an appeal can be brought before a county court in England. However and as hon. Members may know, in Scotland jurisdiction relating to the sheriff court is based on the address of the defender—in this case, the regulatory body. Of course, the regulatory bodies are based south of the border and may not have offices in Scotland; they certainly do not have an office in each sheriffdom. The person in question would therefore find it difficult to raise an action in their local sheriff court—or, indeed, in any sheriff court in Scotland—because the Scottish courts have no jurisdiction.

Without the amendment, the perverse situation might arise whereby an appeal in Scotland could be heard only in London, but someone whose registered address was in Barrow-in-Furness—an excellent part of the country—could benefit from a county court hearing in Barrow. That would be unfair, and in effect would prevent Scottish cases from being heard in sheriff courts in Scotland. The amendments will ensure that such appeals can be heard in local sheriff courts in Scotland.

Oliver Heald (Conservative, North East Hertfordshire)

These seem sensible technical changes. I simply ask the Minister whether the domain of a sheriff court is similar to that of a county court.

John Hutton (Labour, Barrow and Furness)

Yes, it is broadly similar.

Amendment agreed to.

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

John Hutton (Labour, Barrow and Furness)

It might be helpful if I explain briefly a group of clauses that are very similar. Clause 28 provides for the transfer of appeals against fitness to practice cases from the Privy Council to the High Court, the Court of Session in Scotland, or the High Court of Justice in Northern Ireland. It also transfers from the High Court to the county court, or its Scottish equivalent, appeals against decisions to remove registration because of fraud or error. Clauses 28 to 32 deal with the important question of appeals. Clause 28 covers medical practitioners and amends the Medical Act 1983, and clauses 29 to 32 deal with the other professions in the same way.

The clauses divert appeals against the decisions of the regulatory bodies about fitness to practise cases away from the Judicial Committee of the Privy Council. A registrant currently has a right of appeal against decisions of regulatory bodies on fitness to practise cases that affect their registration—for example, a decision that someone should be struck off for professional misconduct. The Bill will divert those cases to the High Court.

We have agreed with the devolved Administrations that Scottish cases should go to the Court of Session and Northern Ireland cases should go to the High Court in Northern Ireland. The clauses' purpose is to introduce consistency across the professions. Under current law, some professions appeal to the Judicial Committee of the Privy Council while others appeal to the High Court. The clauses' purpose is to redirect appeals from doctors, dentists, opticians, osteopaths and chiropractors. Appeals from nurses, midwives, health visitors and pharmacists are already dealt with by the High Court, which provides a successful model for others to follow. The GMC, for example, has no objection to the changes that we are proposing.

To a large extent, the changes rest on Lord Woolf's report ''Access to Justice'', which was published in 1996. He called for a principle of proportionality to apply to the way in which appeals are handled. We agree with Lord Woolf's opinion that an appeal should go to the lowest court that is competent to hear it. He also recommended that statutory appeals against cases that have only been through one stage of hearing, which are the cases that we are currently dealing with, should go the High Court rather than a higher body.

Oliver Heald (Conservative, North East Hertfordshire)

I totally agree with the Minister on this point. Why were the Law Lords dealing with these decisions? Was there a historic reason for that?

John Hutton (Labour, Barrow and Furness)

The reasons are largely historic. I may be able to provide further information to the hon. Gentleman, but I suspect that the answer is that this is how it has always been done. We must reconsider whether we can justify involving three Law Lords in hearing these types of cases; I do not believe that we can. The Judicial Committee of the Privy Council annually deals with about 30 of these cases, which is 10 per cent. of its case load. That is not a sensible use of resources and it cannot be justified in terms of the efficient operation of the justice system. I hope that the clauses will be considered as non-controversial and sensible because they command the support of the professions.

Oliver Heald (Conservative, North East Hertfordshire)

We are happy with the thought that these appeals should be dealt with at the lowest level of the higher courts, namely the High Court and the equivalent courts elsewhere in the United Kingdom. What are the implications for further appeals? Does this mean that a decision could be appealed on a point of law from the High Court to the House of Lords or the Court of Appeal? It may be that the clauses give the registrant another tier of appeal on an issue of law should they wish to avail themselves of it.

John Hutton (Labour, Barrow and Furness)

The hon. Gentleman is probably right on that point, but given the small number of cases involved, this will not be a substantial issue. He must be right on the points of law, but the reforms are sensible. Perhaps he and I should correspond on the subject in future.

Question put and agreed to.

Clause 28, as amended, ordered to stand part of the Bill.

Clause 29 ordered to stand part of the Bill.

Clause 30 - Opticians

Clause 31 - Osteopaths

Clause 32 - Chiropractors

Clause 33 - Regulation of the profession of pharmacy

Oliver Heald (Conservative, North East Hertfordshire)

Will the Minister outline the purpose of clause 33?

John Hutton (Labour, Barrow and Furness)

I would be happy to do that for the hon. Gentleman. The clause's purpose is to remove a limitation on the scope of section 60 of the Health Act 1999 that makes it potentially less useful and flexible for pharmacy than for the other regulated professions. I should emphasise to the Committee that this is an enabling measure and we do not have a specific immediate use in mind for the extended power. The clause will make a small but important change to the section 60 order-making power that will allow us to modify the regulation of the health care professions.

The section 60 power permits the creation, modification and amendment of legislation about the regulation of the health care professions to be done by order, which is subject to various limitations and procedural safeguards. We introduced the power in the Health Act 1999 to make it more efficient to keep the relevant legislation up to date without sacrificing appropriate and proper parliamentary scrutiny. The Government have had problems finding suitable legislative opportunities for professional regulation when there is queue of amendments that must be made.

Section 60 applies to all health care professions, but the legislation governing pharmacy is slightly unusual. For most professions there is one main Act—for example the Medical Act 1983 or the Opticians Act 1989—but the legislation dealing with pharmacy is split between the Pharmacy Act 1954 and the Medicines Act 1968. Most of the 1968 Act concerns the regulatory framework for the safe use of medicines. When we first took the section 60 power, we decided that it should be limited largely to the amendment of sections 80 to 83 of the 1968 Act, which, unlike the rest of that Act, concern the powers of the statutory committee of the Royal Pharmaceutical Society—the society's disciplinary tribunal—and its counterpart in Northern Ireland in relation to retail pharmacy businesses. Our discussions with the society have made it clear that there are other parts of the 1968 Act that may need to be amended as part of a package of possible future reforms to modernise the regulation of pharmacy that could cover section 79 about the use of certain titles, or even section 132 about the definition of pharmacists.

We do not intend to do either of those two things, but they are examples of areas in which we do not currently have section 60 order-making powers. If we were to leave section 60 as it is, we would be unable fully to utilise the benefits of the order-making process in that section in relation to pharmacy. Future reform of the pharmacy profession might have to be a mixture of section 60 orders and primary legislation, because that would be the only way in which we could modify the provisions outside sections 80 and 83.

That would be unhelpful, and would make reform subject to the vagaries of the parliamentary timetable, which would be a great shame. Pharmacy is a profession with an integral and growing role in this country's health care. The Royal Pharmaceutical Society of Great Britain has shown itself keen to bring its regulatory framework up to date and to work in collaboration with the Government and the other regulatory bodies. I am happy to say that that society has confirmed that it supports the clause.

It would be more effective to extend the scope of section 60 as a means of regulating the profession in the future so that it covers the whole of the Medicines Act 1968, but only in so far as that relates to the regulation of the pharmacy profession in Great Britain. That will bring the position for pharmacy more into line with that for the other professions, and mean that developments in the regulatory framework for pharmacy will not be unnecessarily held up, nor fall behind those of the other professions.

Oliver Heald (Conservative, North East Hertfordshire)

One has been reading up on public health because of this afternoon's Westminster Hall debate. I noticed that the Government, in their response to the Select Committee report on public health, talked about a widening role for community pharmacists. The possibility has been mentioned to me of community pharmacists supervising a group of individuals who would go into the homes of people suffering from, say, Alzheimer's disease, to give advice, for example on ways of remembering or ordering medicines so that there would be more security that the medicines were being taken when they should be.

Would such a role require amendment of the law, and is that the sort of amendment that could usefully be undertaken under section 60? Or could that be done anyway, and that is not part of the Government's planning for the future of the community pharmacy profession?

John Hutton (Labour, Barrow and Furness)

To be honest, I am not sure whether we would have to make the changes that the hon. Gentleman suggests in future regulatory reform of pharmacy, or whether such changes could be undertaken outwith that framework of regulatory reform. I do not know the answer to that question, but I will try to furnish the hon. Gentleman with an answer as soon as I can.

I hope that I have made it clear that we do not have specific changes in mind in introducing the clause. We want to ensure that we have the greatest opportunity to use section 60 to make any necessary regulatory reforms called for in the future. It is worth bearing in mind—I hope that the hon. Gentleman will forgive me if I labour the point—that we would not do that arbitrarily, on our own. Any future reforms in this area will be subject to intensive consultation with the profession. That is a requirement of the section 60 order-making process.

It is an essential prerequisite for future regulatory reform that it command the fullest possible support of the profession, and we are very much minded to ensure that it does. Any future changes will have to have the confidence of pharmacists generally if they are to be successful. I cannot answer the hon. Gentleman's specific question, and I will come back to him on it, but I would be surprised if the answer was that we would need regulatory reform to give pharmacists that particular role. I could be proven wrong, so I am hedging my bets furiously to avoid contradicting myself.

That is all that I want to say about pharmacy. This is largely a technical measure. It commands the support of the Royal Pharmaceutical Society and is intended to give us maximum flexibility if at any future point we choose to make further reforms to the regulation of the pharmacy profession.

Oliver Heald (Conservative, North East Hertfordshire)

Obviously, we are perfectly happy with the idea that section 60 might be used in that narrow additional context.

We are dealing with three provisions in fairly short order. This one extends the use of section 60 to allow changes to be made by secondary legislation relating to pharmacists; clause 34 provides a Henry VIII clause as regards amendment of health service legislation in the context of a consolidation; clause 37 allows the Secretary of State to make consequential amendments as he considers necessary to implement the Act. Amendment No. 257 will mean that those supplementary, consequential and transitory provisions could apply to

''an Act passed in the same session as this Act''.

I wonder whether I am being overly sensitive in thinking that something is afoot. Is it thought that there will be great change to the structure and organisation of the health service that would require the three powers? Will an Act of this Session have a bearing on them, or do they pave the way for something?

John Hutton (Labour, Barrow and Furness)

No, they are not paving the way for anything; nor are they are a kind of Trojan horse. Clause 33 contains a specific and narrowly focused provision that we have no intentions to use at present. However, it commands the support of the profession and allows us to approach the question of future regulatory reforms in a proper, efficient fashion. Clause 34 must be seen in the context of consolidation, which it will facilitate. It is not provide a power to rip up, reform and change legislation on the health service or health care. It is a narrow provision that facilitates the process of consolidation, and that has clear meaning in the parliamentary process.

Question put and agreed to.

Clause 33 ordered to stand part of the Bill.

Jim Fitzpatrick (Labour, Poplar and Canning Town)

On a point of order, Mr. Hurst. Given that you have said that you would be minded to accede to a request for a meeting of the Programming Sub-Committee and that such a request has been made, the Government Benches will agree to such a meeting at about 11.15 am if it is convenient for the Committee. I will seek to catch your eye at that time.

Alan Hurst (Labour, Braintree)

I am most grateful for the hon. Gentleman's point of order.Clause 34 Amendments of health service legislation in connection with consolidation

Clause 34 - Amendments of health service legislation in connection with consolidation

John Hutton (Labour, Barrow and Furness)

Clause 34 will enable the Secretary of State to amend legislation on the health service by order if he thinks that such an amendment will assist the consolidation of that legislation. Under subsections (2) and (3), amendments made under the order will form part of consolidating legislation. Clause 36(3) provides for such orders to be subject to affirmative resolution; I hope that the hon. Member for North-East Hertfordshire is reassured by that.

The last piece of consolidated health service legislation was the National Health Service Act 1977. Since then, more than 50 Acts of Parliament have amended that Act and there have been countless regulations. As part of a consolidation exercise, the clause allows for the Secretary of State to amend legislation on the health service in England and Wales. I have tried to make it clear that consolidation is a purely technical exercise and is led by the Law Commission. The substance of the law cannot be changed through a consolidation exercise, but amendments made by order under the clause can be used to tidy up poor drafting—I acknowledge that examples of that might exist—remove ambiguities or reorder provisions to make them more comprehensible. As the Committee is aware, there is a special Joint Committee of both Houses, which is formed for the life of a Parliament, specifically to examine consolidation Bills.

In opposition and government, when one deals with reforming or amending legislation, it becomes apparent that health service and health care legislation is a complex jigsaw with myriad pieces. That is not only so for regulatory arrangements for health care professions, but for the operation of the NHS. The task of hon. Members—let alone that of lawyers, practitioners and people outside this place—is to keep a firm grasp of the law; cross-referring between different pieces of legislation is a fiendishly horrible exercise. If we can facilitate comprehension and grasp of detail by consolidation, we should take that opportunity. Clause 34 simply provides the means to make the consolidation process effective.

Oliver Heald (Conservative, North East Hertfordshire)

The House is always slightly jealous of its powers and the use of the Henry VIII clause is generally not supported. During the past few years there has been more legislation than in former days. I am told that the rot set in in about 1964. Harold Wilson's Government doubled the amount of law on the statute book between 1964 and 1970, and the rot having set in, the rest of us joined in, and it has doubled every 10 years since. That may be apocryphal, but there is grain of truth in it because we have seen a burgeoning of law and it is sensible to consolidate from time to time. The year 1977 does not seem all that long ago to some of us, but 100 Acts of Parliament have apparently been made since then, which is extraordinary.

We are not against consolidation in health legislation and we have only to read the Bill and its subsections being described as (DZA) and (1A)(z) and so on to realise that we are coming to the point where it is difficult to amend it sensibly. However, the Henry VIII clause must be used sparingly and narrowly. I do not understand from the explanatory notes and the clause why it is necessary to move the clause now. Consolidation Acts must go through the procedures outlined by the Minister and I do not understand why this clause could not be part of one of the Bills going through the House at that stage. Is it necessary to pave the way for it? Perhaps the Minister will explain.

John Hutton (Labour, Barrow and Furness)

The hon. Gentleman is absolutely right. Such a provision is necessary in respect of the consolidation measure. We have merely taken the opportunity to ensure that we have that paving provision.

Oliver Heald (Conservative, North East Hertfordshire)

That is helpful, but I should be grateful if the Minister would write to me explaining why it is necessary in a little more detail so that we can be satisfied on that.

The explanatory notes state:

''Under subsection (2) amendments made under the Order will form part of consolidating legislation.''

That confused me slightly because, if the clause is necessary in advance of the consolidation, I am not sure why the amendments would form part of the consolidating legislation, unless it means that a volume would be produced including the amendments in the order but that they would not form part of any Bills that come before the House.

John Hutton (Labour, Barrow and Furness)

The hon. Gentleman will find that clause 34(2) refers only to when the order comes into effect.

Oliver Heald (Conservative, North East Hertfordshire)

Yes, that is what I thought, which is why I did not understand the comments in the explanatory notes that

''Under subsection (2) amendments made under the Order will form part of consolidating legislation.''

I read that in the same way as the Minister: that the order will not come into force unless the Acts are passed. Perhaps that is all it means and the amendments would form part of the legislation only when the Acts had been passed, in which case we have solved the problem.

John Hutton (Labour, Barrow and Furness)

I am happy to write to the hon. Gentleman.

Question put and agreed to.

Clause 34 ordered to stand part of the Bill.

Clause 35 - Minor and consequential amendments

John Hutton (Labour, Barrow and Furness)

I hope that the clause is self-explanatory. It is one of the shortest in the Bill and simply introduces schedules 8 and 9. Schedule 8 makes a number of amendments to existing health and related Acts to take account of changes made by the Bill. Schedule 9 lists in tabular form all repeals included in other clauses and schedules in the Bill. That is done by convention and we shall come to those schedules shortly, so I hope that the Committee feels able to support the clause.

Question put and agreed to.

Clause 35 ordered to stand part of the Bill.

Schedule 8 - Minor and consequential amendments

John Hutton (Labour, Barrow and Furness)

I beg to move amendment No. 112, in page 78, line 37, after '40(4)', insert 'of this Act'.

Alan Hurst (Labour, Braintree)

With this it will be convenient to take Government amendments Nos. 113 and 133.

John Hutton (Labour, Barrow and Furness)

Briefly, the amendments amend section 21(1) of the Health Act 1999 covering the role of the Audit Commission to provide that, if requested to do so by the Commission for Health Improvement, may join the commission in exercising any of the commission's functions under sections 20(1)(da) and (db), which are the new functions inserted by clauses 12(2)(c) and 13(1)(a) of the Bill, as well as those functions already referred to in section 21(1)(a). The intention is to enable joint working between the Audit Commission and the Commission for Health Improvement in their review and inspection functions as amended by the Bill.

I assure the hon. Member for North-East Hertfordshire that these three amendments are tidying and consequential and do not move the policy goal posts in any direction.

Amendment No. 112 corrects a typographical error in the printed version of the Bill. Amendment No. 113 is consequential to amendment No. 100—that is, insertion of the amendment of section 140 of the Mental Health Act 1999 entails a consequential repeal of paragraph 107(12)(b) in schedule 1 to the Health Authorities Act 1995.

Amendment No. 133 enables joint working between the Audit Commission and CHI on their review and inspection functions, as amended by clauses 12(2)(c) and 13(1)(a) of the Bill, as well as those functions already referred to in the 1999 Act.

Oliver Heald (Conservative, North East Hertfordshire)

Amendments Nos. 112 and 113 are technical and I have nothing to say about them.

I welcome amendment No. 133. During an earlier debate, we raised some concerns about the role of the Audit Commission now that the Commission for Health Improvement is to have a role in the inspection of health services that are being provided instead of its previous narrower role covering clinical governance. One of the points made by us and some of the bodies with which we have communicated during the course of our proceedings was that they felt it important that the work of the Audit Commission—it has exposed some of the great problems that the Government and patients are having with the health service at present—should not be sidelined. I referred to an article in the Health Service Journal which was insistent on the point.

It is welcome that the Minister is introducing the amendment confirming that the Audit Commission will be able to undertake inspections for the Commission for Health Improvement, that it is not being sidelined in any way and that there will be a proper commitment to joint working. I hope that that is what it means and I believe that that is what the Minister said, in which case I welcome it.

Amendment agreed to.

Amendment made: No. 113, in page 79, line 16, leave out 'paragraph 32(b) is' and insert

'paragraphs 32(b) and 107(12)(b) are'.—[Mr. Hutton.]

Oliver Heald (Conservative, North East Hertfordshire)

On a point of order, Mr. Hurst. I had intended to ask the Minister to explain in detail the import of Government amendment No. 258. If the Government Whip was thinking of seeking to adjourn the Committee, now might be a good time.

Further consideration adjourned.—[Jim Fitzpatrick.]

Adjourned accordingly at fourteen minutes past Eleven o'clock till this day at half-past Two o'clock.

Standing Committee A

NHS Reform and Health Care Professions Bill

Ann Widdecombe (Conservative, Maidstone and The Weald)

Following Mr. Hurst's ruling this morning, the Government have tabled manuscript amendments. They will be taken during the debate on clause 36 and they are available to the Committee on the Table.

Simon Burns (Conservative, West Chelmsford)

On a point of order, Miss Widdecombe. As you were not in the Committee this morning, you may not be aware that we held a further meeting of the Programming Sub-Committee when we had before us the motion

''That, pursuant to Sessional Order . . . of 28th June 2001, the Committee recommends that, notwithstanding the Order of the House of 20th November, proceedings on Consideration and Third Reading of the National Health Service Reform and Health Care Professions Bill be completed in one and a half days.''

My hon. Friend the Member for North-East Hertfordshire (Mr. Heald) and I requested that because we felt that the way in which the programme motion for the Committee had been set provided insufficient time to debate important issues such as clauses 8, 20 and 21. We did not have the opportunity to scrutinise those clauses at all, which it is the Opposition's duty so to do, and we thought it reasonable to request that on Report, instead of having the proposed one-day debate, we should have a one-and-a-half day debate so that we could properly scrutinise those important clauses. Regrettably, the Programming Sub-Committee, with a Government majority, did not agree with that view, so the status quo remains. However, I want to put on the record that we are most unhappy at the way in which those crucial clauses at the heart of the Bill will not have any scrutiny whatever in Standing Committee.

Ann Widdecombe (Conservative, Maidstone and The Weald)

That is not a matter for the Chair. The Programming Sub-Committee met and came to a conclusion in a way that was completely within the rules. I certainly have no jurisdiction to do anything about it. If the hon. Gentleman is dissatisfied, no doubt he will make that known on the Floor of the House in due course.Schedule 8 Minor and consequential amendments

Schedule 8 - Minor and consequential amendments

John Hutton (Labour, Barrow and Furness)

I beg to move amendment No. 114, in page 79, line 27, at end insert—

'In section 18 (duty of quality), in subsection (1), at the beginning there is inserted ''It is the duty of each Strategic Health Authority to put and keep in place arrangements for the purpose of monitoring and improving the quality of health care which is provided to individuals in their area, and''.'

Ann Widdecombe (Conservative, Maidstone and The Weald)

With this it will be convenient to take Government amendment No. 258.

John Hutton (Labour, Barrow and Furness)

Amendment No. 114 amends section 18 of the Health Act 1999 and amendment No. 258 amends section 11 of the Health and Social Care Act 2001.

Section 18 of the 2001 Act currently places health authorities under a duty to put and keep in place arrangements for the purpose of monitoring and improving the quality of health care which they provide to individuals. The amendment amends that duty in relation to strategic health authorities so that each authority will in future be under a duty to put and keep in place arrangements for monitoring and improving the quality of health care provided to individuals in their area, instead of, as at present, the health care which the authority provides to individuals. That duty will better reflect the primary role of strategic health authorities as strategic bodies rather than as providers of services.

In a nutshell, I hope that the Committee will find amendment No. 114 straightforward. Its purpose is to ensure that the duty of quality contained in the 1999 Act applies to strategic health authorities in a way that reflects their new responsibilities.

Amendment No. 258 amends section 11 of the Health and Social Care Act 2001. That section currently confers on each health authority, primary care trust and NHS trust a duty to make arrangements with the aim of involving patients and the public in the planning and decision-making processes of those bodies, in so far as they affect the operation of the health services for which that body is responsible. In relation to health authorities, that would cover both the hospital and community health services for which they are responsible and the family health services provided by practitioners in those areas. The amendment imposes on strategic health authorities all the consultation-related duties of section 11, in so far as the strategic health authorities are themselves responsible for health services, and gives the authorities a new power to direct both PCTs and NHS trusts on how they should carry out consultations on services for which they have responsibility. The amendment adds strategic health authorities to the list of bodies to which section 11 applies.

New subsection (5) provides the new direction-making power for strategic health authorities, the scope of which is defined in new subsection (4). New subsection (6) makes it the duty of PCTs and NHS trusts to comply with directions given by the strategic health authority.

The amendment imposes on strategic health authorities all the consultation-related duties of section 11 of the 2001 Act in case the authorities might be responsible for health services and gives them a new power to direct PCTs as well as NHS trusts on how they should carry out consultation on services.

It might be helpful if I explain a little more of the detail of amendment No. 258 because I understand that the Opposition are concerned about it. With resources and commissioning being handled in future by PCTs directly, strategic health authorities will not be responsible for such services in quite the same way, but they will be responsible for their overall performance management. It is our intention that strategic health authorities should be under a duty under section 11 in two respects. My explanation may be helpful to the hon. Member for West Chelmsford (Mr. Burns).

The first duty is broadly to oversee consultations carried out by PCTs and NHS trusts. That may, for example, include being able to require PCTs and trusts in their area to co-ordinate consultation on health service issues affecting the whole strategic health authority area. That is sensible. Secondly, and more generally, situations may arise in which the Secretary of State may wish to delegate certain strategic service functions to strategic health authorities. An example that arose previously was the public health function. In those circumstances, we would want strategic health authorities to be under a proper duty to consult local people.

That is what the amendments are designed to do. They do not change policy, but tidy up the Bill to ensure that those two provisions in earlier Acts properly reflect the new responsibilities of strategic health authorities. They will, as I hope the Committee now appreciates, take a step back from direct service provision, which is their current overall responsibility, to a more strategic approach.

Simon Burns (Conservative, West Chelmsford)

I thank the Minister for his explanation of the amendments, particularly amendment No. 258. As he rightly said, my hon. Friend the Member for North-East Hertfordshire particularly wanted the Minister to explain the amendment.

So that there is no misunderstanding on the Opposition Benches, I want to paraphrase my understanding of what the Minister said to ensure that I am clear about the purpose of the amendment. Is it fair to say that the amendment will ensure that strategic health authorities are in the same position as health authorities at the moment, so that when they are created they will have the same sort of role as health authorities in this area?

John Hutton (Labour, Barrow and Furness)

That is broadly right, but, of course, the role of the strategic health authorities is fundamentally different from that of the health authorities at present. The amendments tidy up the provisions to ensure that the duties of consultation and quality from earlier legislation apply appropriately to strategic health authorities with their new responsibilities.

It may be helpful if I confirm that the duty of consultation in section 11 of the Health and Social Care Act 2001 is a general duty to maximise public involvement in decision-making within the NHS. That is not the same as the specific statutory duty to consult on service reconfigurations in the National Health

Service Act 1977. Section 11 of the 2001 Act laid some of the foundations for the wider reforms that we wanted in relation to public and patient involvement in the NHS. I accept that those are controversial issues, but the duty in section 11 of the 2001 Act is in addition to the statutory duty of consultation on service reconfigurations, so the responsibility for consultation in relation to service changes is not affected by the amendments. They simply re-align the two existing statutory duties of quality and consultation with the new responsibilities of the strategic health authorities. The amendments do not constitute a substantive change of policy or a withdrawal from the duty of quality or of consultation.

Amendment agreed to.

Amendments made: No. 133 in page 79, line 27, at end insert—

'In section 21 (arrangements with the Audit Commission), in subsection (1)(a), for ''20(1)(b) or (d)'' there is substituted ''20(1)(b), (d), (da) or (db)''.'

No. 258, in page 79, line 34, at end insert—

'In section 11 (public involvement and consultation)—

(a) in subsection (2), before paragraph (a) there is inserted—

''(za) Strategic Health Authorities,'', and

(b) after subsection (3) there is inserted—

''(4) Subsection (5) applies to health services for which a Strategic Health Authority is not responsible by virtue of subsection (3), but which are provided or to be provided to individuals in the area of the Authority, and for which—

(a) a Primary Care Trust whose area falls within the Authority's area, or

(b) an NHS trust which provides services at or from a hospital or other establishment or facility which falls within the Authority's area, is responsible by virtue of subsection (3).

(5) A Strategic Health Authority may give directions to Primary Care Trusts falling within paragraph (a) of subsection (4), and NHS trusts falling within paragraph (b) of that subsection, as to the arrangements which they are to make under subsection (1) in relation to health services to which this subsection applies.

(6) It is the duty of each Primary Care Trust and each NHS trust to which such directions are given to comply with them.'' '.—[Mr. Hutton.]

Schedule 8, as amended, agreed to.

Schedule 9 - Repeals

John Hutton (Labour, Barrow and Furness)

I beg to move amendment No. 259, in page 81, line 5, at end insert—

'Health Services and Public Health Act1968.In section 63(5B), the ''and'' at the end of paragraph (bb).'.

Ann Widdecombe (Conservative, Maidstone and The Weald)

With this it will be convenient to take Government amendments Nos. 260 to 264.

John Hutton (Labour, Barrow and Furness)

This is another fiendishly descriptive part of the Bill. The amendments add to the table in schedule 9, which in turn lists all the repeals provided for in other clauses and schedules to the Bill. The Acts referred to are, I hope, self-evident, but I draw the Committee's attention to amendment No. 264, which

in a curious and somewhat inexplicable way—I shall try to explain in a moment—repeals provisions in the current Bill. I suspect that that must be a first.

Reference is made to amendments to section 15 of the National Health Service Act 1977 that are added to paragraph 2 of schedule 2 by amendment No. 99, which the Committee has already approved. We have already amended the Bill in Committee, which is what the amendments to schedule 9 try to reflect. Reference is also made to amendments to section 18 of the National Health Service and Community Care Act 1990 through amendment No. 100. Both the relevant amendments provide for their own repeal. They are amendment provisions that are themselves repealed by provisions in the Health Act 1999 that have yet to come into force.

I realise that a fog is probably descending on the Committee, but I shall carry on. I should warn the hon. Member for West Chelmsford that if he asks me any questions about this matter, I shall definitely have to correspond with him.

The amendments provide for their own repeal, as well as for the repeal of the substantive provisions that they amend. In summary, the amendments are further repeals that take account of the provisions in the Bill. In essence, they are tidying-up provisions. Schedule 9 lists in tabular form all the repeals included in other clauses and schedules to the Bill, and amendments Nos. 259 to 264 simply add to that table. They are all consequential repeals, which are necessary in the light of amendments to the Bill that we accepted in Committee. I do not propose to detain the Committee by discussing them individually. As I said, the Acts referred to are, I hope, self-evident.

Simon Burns (Conservative, West Chelmsford)

I thank the Minister for that somewhat unusual explanation of his amendments. He is probably right in saying that this may be a first, in that amendment No. 264 amends the Bill before it has even reached the statute book, but why do we need to do that? Why could we not table the relevant amendment to schedule 2 on Report or in another place, thereby avoiding this unusual procedure?

John Hutton (Labour, Barrow and Furness)

Those are options. The amendments could indeed be tabled on Report, in another place or anywhere else.

Simon Burns (Conservative, West Chelmsford)

I was talking about just this one.

John Hutton (Labour, Barrow and Furness)

This one could be tabled anywhere. It is a perfectly legitimate amendment, and the Government are entitled to make such changes at any point in the Bill's legislative passage. However, we wanted to do so in Committee because this is the time and place that such amendments are usually tabled. As I understand it, they are simply consequential, tidying-up amendments that are necessary because of changes already made to the Bill through amendments Nos. 99 and 100 in particular. They go no deeper than that. Making such changes in Committee, on Report or in

another place is a question of judgment for Ministers. I felt that it would be helpful to consider them in Committee.

Clause 36 - Regulations and orders

John Hutton (Labour, Barrow and Furness)

I beg to move manuscript amendment (a), in page 41, line 22, after 'than' insert

'regulations under section 26 or'.

Ann Widdecombe (Conservative, Maidstone and The Weald)

With this it will be convenient to take manuscript amendment (b).

John Hutton (Labour, Barrow and Furness)

It will be obvious to all members of the Committee that the manuscript amendments are a response to this morning's debate on clause 26, in which I made it clear that I was minded to accept the calls of the hon. Member for West Chelmsford and my hon. Friend the Member for Crawley (Laura Moffatt) for regulations made under clause 26 to be approved by affirmative resolution of both Houses and not, as we originally proposed, by the negative resolution procedure.

The amendments do indeed provide that regulations made under clause 26 will be subject to affirmative resolution procedures. They are a response to the Opposition's argument, with which I agree, that

regulations made under clause 26 are unusual and merit greater parliamentary scrutiny than the negative resolution procedure would provide.

As I said during our discussion of clause 26, I am persuaded by the argument for a higher level of parliamentary scrutiny of the arrangements dealt with in the clause. Systems such as these are not normally set up through secondary legislation, but dealt with by the parliamentary ombudsman and included in primary legislation. In the light of the way in which the amendments provide for regulations to be made, I hope that they will command the support of the Opposition.

Because clause 36 provides for the making of orders and regulations under the Bill, the amendments—unlike those tabled by the hon. Member for West Chelmsford—amend clause 36 and not clause 26, even though they refer to regulations dealt with in clause 26. Manuscript amendment (a) amends clause 36(2), which provides for regulations in the Bill to be subject to the negative resolution procedure, by excluding regulations under clause 26 from the negative resolution procedure. Manuscript amendment (b) amends clause 36(3), which lists the secondary legislation that is subject to the affirmative procedure, by adding the regulations under clause 26 to the list that requires the affirmative procedure.

Simon Burns (Conservative, West Chelmsford)

I thank the Minister for his explanation of the manuscript amendments and for the swift way in which he, the parliamentary draftsmen and, one assumes, other civil servants in the Department of Health have worked since our discussions some time after 9.30 this morning to produce the amendments in time to amend the Bill in Committee.

Because you were not chairing the Committee this morning, Miss Widdecombe, you may not be aware that the amendments that gave rise to the principle behind the manuscript amendments were tabled in my name and that of my hon. Friend the Member for North-East Hertfordshire. Given the importance of the issue, we believe that the regulations should be made under the affirmative resolution procedure, and according to the Minister, the hon. Member for Crawley—I note that she is not in her place—shares our concern. We have all been in government from time to time, so we understand the way in which these matters work. We welcome any conversions from the other side, so we welcome the support given by the hon. Member for Crawley for a change from the negative to the affirmative resolution procedure. Given her great concerns about the matter, I would have been more than happy had she felt able to add her name to our amendments. That was not to be, but at least she is with us in spirit in our argument.

May I also say what a pleasure it is that the Government accepted the amendment? If one is in opposition when the Government have such a large majority, any crumbs from the table are welcome. Gratefully, although not with much pride, I accept the crumb that the Minister has thrown us today. We are

delighted that he agrees with us and sees the merits and worth of our argument, and that he and his draftsmen have come up with the amendments so swiftly.

In conclusion, I can only thank the Minister for his swift and gracious actions and assure him that we will support the son of our original amendment 100 per cent.

John Hutton (Labour, Barrow and Furness)

Can I simply place on the record my appreciation of the hon. Gentleman's words about my officials? I am sure that they will be greatly appreciated in the Department of Health.

Manuscript amendment agreed to.

Manuscript amendment made: (b), in line 25, after ''containing'' insert

''regulations under section 26 or''.—[Mr. Hutton.]

John Hutton (Labour, Barrow and Furness)

I beg to move amendment No. 94, in page 42, line 7, at end insert—

''( ) Directions given in pursuance of any provision of this Act are, except where otherwise stated, to be given by instrument in writing.

( ) Any power conferred by this Act to give directions by instrument in writing includes power to vary or revoke them by subsequent directions.''.

The amendment provides that any directions made under the Act are, unless otherwise stated, to be given by instrument in writing and that any directions may be varied or revoked by subsequent directions. The powers affected are threefold: the power of the National Assembly for Wales relating to health and well-being strategies in clause 22(7); powers in relation the Commission for Patient and Public Involvement in Health in paragraphs 2(1) and 10(4) of schedule 6; and powers concerning payments and loans to the Council for the Regulation of Health Care Professionals in paragraphs 13, 7 and 8 of schedule 7.

The intention is that all directions under the Act should, unless otherwise stated, be able to be issued in writing without the need for any parliamentary procedure. That is the procedure used in most cases for directions under the National Health Service Act 1977.

Amendment agreed to.

Clause 36, as amended, ordered to stand part of the Bill.

Clause 37 - Supplementary and consequential provision etc

John Hutton (Labour, Barrow and Furness)

I beg to move amendment No. 257, in page 42, line 15, at end insert—

''including an enactment contained in an Act passed in the same session as this Act''.

The amendment extends clause 37 so that supplementary and consequential provisions may be made by order in relation to Bills passed in the same Session as this one. For example, other Bills passed in this Session that refer to health authorities, will be able to be updated to refer to strategic health authorities by order without us having to wait for another opportunity to make primary legislation.

Various other Bills are in progress in this Session, such as the Adoption and Children Bill, the International Development Bill and the police Bill, which currently contain references to health authorities. Those will need to be amended after enactment to read ''strategic health authorities''. We had originally thought that that could be done by an order under clause 37 of this Bill, but the normal rule of interpretation would confine the section 37 power to enactments passed prior to this Act. It would therefore be correct to extend clause 37 to include explicitly Bills enacted in the same Session as this one.

Simon Burns (Conservative, West Chelmsford)

The Minister has given a lucid explanation of the reason behind the amendment. If I understand him correctly it is, to all intents and purposes, a technical amendment to allow changes to other legislation. He mentioned the Adoption Bill, International Development Bill and the police Bill. Does the Minister anticipate, during the current Session of Parliament, a further health Bill from his Department that would also have this amendment applied to it?

John Hutton (Labour, Barrow and Furness)

No.

Amendment agreed to.

Clause 37, as amended, ordered to stand part of the Bill.

Clauses 38 and 39 ordered to stand part of the Bill.

Clause 40 - Short title, interpretation,commencement and extent

Simon Burns (Conservative, West Chelmsford)

I will be brief, but as we are nearing the end of the Bill, it would be remiss of me not to end, or almost end, on the point on which I began. The clause deals with, among other things, the commencement of the Act, if and when it becomes one. That brings us back to the argument of whether the Government are rushing the introduction of PCTs and strategic health authorities too quickly.

I will not test your patience, Miss Widdecombe, by rehearsing yet again the arguments that Opposition Members made vigorously in the early stages of the Committee. However, I want to put it on record, if only to protect myself in a year or 18 months' time when there is an utter shambles, that we the Opposition flag up that we are as concerned as we were at the start of the Committee that the Government's reforms, on PCTs in particular, are being rushed. We still believe that it would have been wise and sensible to have postponed enabling PCTs to act as they will under the legislation for six months, until April 2003.

I will leave it there, having simply put it on the record that we have warned the Government and shown them what we believe is the folly of their undue rush. If, sadly, our fears become reality, the Government must realise—unusually for this

Government—that they have only themselves to blame for the shambles and confusion. They have been more than adequately warned.

John Hutton (Labour, Barrow and Furness)

The purpose and effect of clause 40 are self-evident. I do not want to say much about it. It is a standard clause, setting out the Bill's short title and a range of other technical matters concerning commencement.

I want to respond briefly to the hon. Gentleman's final, acerbic comments about the process of NHS reform. I understand, as do, I think, all my hon. Friends, that the hon. Gentleman and his party are opposed to the reforms that we are introducing, and to the scale and pace of them. That is well documented. His comments in that regard do not need to be added to the record any further.

It is untrue to describe the present process either as a shambles or as in any way dependent on the provisions of the Bill. I tried to explain to him earlier—it seems like a long time ago—that the PCTs that are being, or that have already been, established are not being set up under the terms and provisions of this Bill. How could they be?

Simon Burns (Conservative, West Chelmsford)

We understand that.

John Hutton (Labour, Barrow and Furness)

The hon. Gentleman says that he understands that, but he has repeated the argument that we are using the Bill to rush forward the establishment of PCTs. That is simply untrue. The power to establish them was contained in the Health Act 1999. All that this Bill does in relation to PCTs is to require the Secretary of State to maintain universal coverage of them. The process of establishing them has nothing whatever to do with the passage of this Bill.

We do not want to be swapping prophecies and predictions of the future across the Committee—that would be pretty tedious. If either I or the hon. Gentleman should be proved wrong in future about the passage of these reforms, I have a strong feeling that it will not be me.

Simon Burns (Conservative, West Chelmsford)

May I just correct something? We fully understand that the powers to set up PCTs are not in the Bill. We have never said that; PCTs were established under the Health Act 1999. The Minister does not seem able to grasp that. Perhaps I am not making myself clear enough. Without going into great detail, the 1999 Act provided the statutory power for PCTs to be established on a voluntary basis.

The Minister said that by October next year every area will have a PCT and a strategic health authority. That is a complete change from the current system, and 75 per cent. of the funding will go to the PCTs. That situation is a consequence of the Bill, even though it does not create it. Many PCTs are in a fragile state. That is not a criticism, because they are new bodies finding their feet and establishing themselves. Some of them have not yet even become PCTs, so they are even more fragile.

We are simply saying that instead of ensuring that every area has a PCT by October next year and that they are getting the 75 per cent. funding and carrying out the functions envisaged under the Bill, the Government should leave it for another six months to give them a breathing space to bed themselves in and to gain more experience and expertise to be able to carry out those functions.

The Minister says that we are against all this, but he is a fair man, so he should admit that we are not opposed to the concept of PCTs and never have been. We did not fight the last general election on a policy of getting rid of PCTs. It is unfair for the Minister to draw the conclusion that we are against PCTs per se, and it would be gracious of him to recognise that. We simply think that they should have a little more time to bed in and establish themselves before taking on this massive transformation in their roles once they start receiving the money to provide local health care.

John Hutton (Labour, Barrow and Furness)

I do not want to maintain this argument, because it is running the risk of becoming rather repetitive. We have been over the tracks many times.

I am prepared to accept the hon. Gentleman's assurances that Conservative Members support PCTs and their new role. He is right to say that he has made their position clear in the past. I recognise that what they object to is the pace at which we are moving towards PCTs assuming their responsibilities. Nevertheless, I think that he is wrong. If we believe in devolution to the front line by creating a devolved NHS that looks less like the monolithic top-down command-and-control organisation that it is, the sooner that we can do so the better.

However, I take to heart the hon. Gentleman's admonition that we must do it in a way that allows the PCTs to discharge their responsibilities effectively. Conservative Members have made reasonable criticisms in the course of our proceedings. We have been working hard to support PCTs in taking on their new responsibilities, and I am confident that as we move to 100 per cent. coverage under the voluntary

provisions in the Health Act 1999 they will be fully adequate in discharging their important responsibilities.

Question put and agreed to.

Clause 40 ordered to stand part of the Bill.

Question proposed, That the Chairman do report the Bill, as amended, to the House.

John Hutton (Labour, Barrow and Furness)

I welcome the progress that we have made, Miss Widdecombe, and express to you and Mr. Hurst my appreciation, and that of my hon. Friends, for the expert way in which you have both chaired the Committee's proceedings. I know that Ministers often say that at this point, but I mean it most sincerely. You have been firm, clear, decisive and, above all, fair to both sides of the Committee.

I am also grateful to the Clerks and all those who have facilitated the prompt and efficient dispatch of this important Bill.

Simon Burns (Conservative, West Chelmsford)

On behalf of the Opposition, Miss Widdecombe, I join the Minister in thanking both you and Mr. Hurst for the way in which you have chaired our proceedings. This has been a hard-fought Committee on points of policy, and we, as a responsible Opposition, have sought to help and guide the Government and to encourage them to avoid some of the pitfalls that we believe that they are opening up for themselves. However, the proceedings have not been marred by rancour or unpleasantness. Of course, it would have been marvellous to have heard more contributions from Labour Members. I was awaiting with interest the speech by the hon. Member for Crawley on the manuscript amendments, owing to her great concern about the issue. Overall, it has been a pleasure to serve on the Committee.

Ann Widdecombe (Conservative, Maidstone and The Weald)

I thank both hon. Gentlemen for those comments, and add my thanks to the police, Hansard, the Clerks and, indeed, members of the Committee, who made it easy for me to learn about the role of Chairman and ease myself into it. I am sure that as a result of this Committee's model conduct I shall now be unleashed on something much worse.

Question put and agreed to.

Bill, as amended, to be reported.

Committee rose at seven minutes past Three o'clock.