Health and Social Care Bill

Public Bill Committee, 29 March 2011.

Derek Twigg (Labour, Halton)

On a point of order, Mr Hood. In the press this morning we have again seen reports that there will be significant changes to the Bill. A senior adviser is quoted as saying:

“The report stage of the Health and Social Care Bill has now been delayed until after the Easter recess to make time for an agreement to be reached on reforming the reforms.”

The article goes on to say that the Liberal Democrats and the Conservatives are having a bit of battle about who will bring forward the reforms. One quote says:

“We can’t afford to subcontract niceness.”

Will the Minister be making a statement on the Government’s proposes reforms of the Bill? If he cannot make it today, perhaps he will make it towards the end of the Committee to give us some idea.

Jimmy Hood (Labour, Lanark and Hamilton East)

I hear what the hon. Gentleman is saying, and I understand what he has read out, but, unfortunately, that is not a point of order. I am sure he will find other means to explore his inquiries.

Clause 184

Emily Thornberry (Labour, Islington South and Finsbury)

We come to one of the areas of health policy in which it is universally agreed that there must be further integration of services, particularly between social care and health. Our concern is that the clause will have a number of unintended consequences.

In some areas, although in many ways not enough, there are good integrated arrangements between councils and primary care trusts. As drafted, the clause makes no reference to the existing legal arrangements between councils and PCTs that have integrated council and PCT functions. Herefordshire and Blackburn provide good examples of such integration. On 23 March, Blackburn with Darwen borough council was named council of the year by the Local Government Chronicle, and one of the reasons cited for the award was its joint working arrangements on health. Another example is North East Lincolnshire council. Those two councils have moved towards full integration between local authority and PCT functions. They have taken advantage of the fact that many PCTs and local government organisations have coterminous boundaries, which is not the case under the Government’s new arrangements.

Such integration of social care has been done with the full agreement and full support of the Department of Health. Councils have done such things as integrate research, human resources, finance and management. In Herefordshire there is full integration between the PCT and the local authority with a joint chief executive and backroom staff.

There is a further, lower tier of local authorities— 15 or 20 councils—which, although they have not gone as far as Lincolnshire, Herefordshire and Blackburn, have gone some way down the same path. One of them is my local authority of Islington. I have spoken to members of staff at Islington, and they say that they might be sitting next to someone and have no idea whether that person is employed by the primary care trust or by the local authority. All they know is that they are working together for the good of the people of Islington.

The concern is that the Bill is driving a coach and horses through the attempts that local authorities and PCTs have made to develop properly integrated social care and care services for the people they serve. Whether or not there is truth to the rumours that the Bill will be taken apart root and branch by the Government, in the interim people have to operate on the assumption that the Bill will be enacted in its current form. As a result, the clustering of PCTs is being encouraged by the Department of Health. The difficulty is that if there is a clustering of PCTs, how can a PCT, or such staff as are left in a PCT, continue to work alongside the local authority? Many of the arrangements that have been made have been made on the basis that there will be joint management structures between PCTs and local authorities.

Mixed signals are coming from the Department of Health. My hon. Friend the Member for Great Grimsby (Austin Mitchell) asked Sir David Nicholson about this in the Public Accounts Committee and was assured that there would not be disruption, but, frankly, there is. I assure the Minister that Blackburn with Darwen borough council feels strongly about it. I will not necessarily read what it has said, but the council expresses its view in strong language. The council is not alone—it is supported by many other local authorities. It feels that it is facing

“a centrally driven initiative which ignores some parts of the Department of Health’s own guidance which will cause disruption to successful models of integration and add cost and uncertainty”

to the future of such local authorities.

In many ways, the experience of councils such as Blackburn with Darwen is a lesson for us all. When the Opposition are considering how we would, in a few years time, put back together the damage that this Government has caused, we need to bear in mind such local authorities. When local authorities have taken the initiative and are at the forefront of initiatives that are promoted by politicians, we do not think that it is right that they should suffer as a result of their bravery, their boldness and their vision.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Wow—their braveness, their boldness and their vision. That is all well and good, but under the previous Administration there was an absence of that in too many places, because the Government lacked that boldness, that vision and that desire to see it happen in practice. That is why the hon. Lady is able to refer to only a very small number of places where what she describes actually happened.

I understand the concern that Blackburn with Darwen borough council has expressed, and officials and I will certainly consider the points that she has made on its behalf. In reality, where care trust arrangements already exist we are anxious—indeed, it is the intention behind the clause—to ensure that they can continue, but they need to be set in the context of the overall reforms that the Bill puts in place. What does that mean? It means that a care trust must choose whether to be a commissioning organisation, which brings together health and social care and commissions those activities that it decides should be covered by the care trust; or a provider care trust that provides services to its community across health and social care. That is very clear and straightforward. The PCT clusters are working through that process in the relevant areas with their colleagues in local authorities and in the emerging GP commissioning consortia, so the picture that the hon. Lady tries to paint is not entirely borne out by the process and the work that is taking place on the ground.

I agree entirely with the hon. Lady’s observation that such collaborative arrangements are most successful when the working relationships on the ground are effective, and her reference to the fact that colleagues working alongside each other on health and social care in Islington would not immediately know whence they had come shows the change of behaviour and culture that we seek to engender through our reforms. She suggests that it is not possible for such things to happen at the moment, because of the “uncertainty”, but let us look at the evidence for that. The royal borough of Kingston upon Thames, for example, where progress is being made on a number of fronts towards a more integrated approach to provision and commissioning, has recently agreed with its PCT cluster the delegation of public health functions to the local authority. That has taken place ahead of the introduction of the Bill, which will give local authorities those responsibilities. It is a far-sighted approach, which commends itself to other areas, to enable a smooth transition of those responsibilities.

I understand that individual local authorities may encounter some problems on the ground. The Government are determined to ensure that such concerns are examined and properly dealt with, but the clause addresses the hon. Lady’s concern about the need for continuity and a clear route by which care trusts are able to continue. In essence, that is what the clause does, and that is why it should stand part of the Bill.

Clause 193

Emily Thornberry (Labour, Islington South and Finsbury)

I beg to move amendment 472, in clause 193, page 164, line 20, after ‘England’, insert ‘and meets the international definition of Social Work as follows—

“The social work profession promotes social change, problem solving in human relationships and the empowerment and liberation of people to enhance wellbeing. Utilising theories of human behaviour and social systems, social work intervenes at the points where people interact with their environments. Principles of human rights and social justice are fundamental to social work.”’.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss amendment 473, in clause 193, page 164, line 20, at end insert—

‘(5A) After subsection 2ZA insert—

(2ZAA) Social Work in England is that which through the exercise of its statutory functions and/or the employment of its range of skills works to—

(a) promote social justice by helping people to achieve change in their lives;

(b) meet the needs of people and enable their social inclusion and the cohesion of society;

(c) protect those who may be at risk of abuse or harm from others;

(d) reduce the risk of people abusing or harming others;

(e) enhance self respect and respect for others within families, groups and communities; and

(f) reduce conflict and distress in families, groups and communities.

(2ZAB) Social Work operates within a wide range of legislative frameworks and with Government guidance and regulations.

(2ZAC) Social Work puts individuals, families, groups and communities at the forefront of its concern and works with all others to promote their health, socio-economic wellbeing and empowerment.

(2ZAD) Social Work provides the necessary challenge to governments and institutions through advocacy which is rooted in internationally recognised ethical principles and undertaken alongside individuals, families, groups and communities.”’.

Emily Thornberry (Labour, Islington South and Finsbury)

The amendments are intended to clarify what social workers do and what social work is about. It is insufficient for the Bill to state that social work is simply what social workers do. At a time when social workers feel undervalued and somewhat besieged, it is incumbent upon us and the Department of Health to give them support and such assistance as is necessary. It is in that spirit that amendment 472 is intended to define social work. The definition comes from the British Association of Social Workers, which has established a college of social work. I understand that that college is one of two social work colleges, but that is a long tale, which I will not go into today. The definition was developed internationally: it was adopted by the International Federation of Social Workers at its general meeting in July 2000 and approved by the United Nations.

Amendment 473 is another attempt to clarify. Having defined social work, it is important that the Bill sets out the role and function of social work in England.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

As the hon. Lady says, the amendment is inspired by the BASW, and it is intended to provide a definition and to set out the functions of social work. First, let me make it clear that the Government value the important job that social workers undertake. The definitions proposed in the amendments articulate the high aspirations that the social work profession rightly has; however, they do not have the necessary precision and detail required of legal definitions.

Let me explain our concerns. To ensure that the Health Professions Council—the name of which we propose to change and the Committee will debate later—has the necessary powers to undertake its functions effectively, the definition that we use in clause 193 must reflect what social workers actually do, not what they may aspire to achieve. The definition of social work in England that we have used, which has been used for some time to establish the scope of powers and functions relating to the regulation of social workers in England, meets those criteria. It links social work to the practice of social work in England that is required in connection with health, education or social services provided in England. There is no definition of the functions of social workers in England in the Bill apart from the provision that

“‘the social work profession in England’ means the profession engaged in social work in England”.

That is a deliberate choice to apply a consistent approach to regulation across a range of professions. At the moment, there is no detailed definition of the functions and so on associated with the title of doctor or other health professions that are regulated by other health profession regulators.

Emily Thornberry (Labour, Islington South and Finsbury)

I understand the Minister’s reason for not including a definition of social work in the Bill and he says that there is a definition which the Department uses, but could he explain what he considers the role of social workers to be, so that it is printed in the Official Report of our proceedings and so that those in the social work profession and in the new bodies will at least have a definition to refer to?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

My point is that we are not providing in the Bill a detailed list of the sort that the hon. Lady proposes on behalf of BASW and social workers. We are not going down that route because that list is aspirational. Also, in having a long list, there is a danger that anything omitted is excluded from the role of social work. To take the point one step further, by including a list as long as she proposes and protecting the title of social worker by assigning it to those who perform that list of functions and tasks, there would then be a question whether practitioners in the police force or mental health services who discharge some of the same duties could continue to do so. That why we are reluctant to go down the route the hon. Lady proposes and why, when the House has examined other areas of professional regulation, it has not sought to put detailed definitions and functions of professional groups into legislation.

Emily Thornberry (Labour, Islington South and Finsbury)

There will be further opportunities for debate under later amendments and new clauses, so I will not go into more detail now, other than to flag up that that is exactly the point. Social workers need to have an idea of what professional skills are recognised as theirs in particular, and some acknowledgment of that. The Minister said the Department has a working definition and he may receive some inspiration shortly and put that on the record.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I am not sure that I will receive such inspiration but in terms of clarity about the day-to-day role of social work, we have the report of the social work taskforce, and the social work reform board is progressing work on a range of aspects of the role and contribution of social workers. We also intend later this year to publish a White Paper on the reform of social care. We expect a number of the issues that are of concern to BASW and other social workers, including the recognition of the valuable work they do and the status they should have, to be addressed in those documents. Having a detailed and elaborate list of specified functions has consequences that I am sure were not intended by the hon. Lady and so I urge her to withdraw the amendment. If she does not we will oppose it.

Emily Thornberry (Labour, Islington South and Finsbury)

I beg to ask leave to withdraw the amendment

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss the following:

New clause 15—Care standards—

‘In section 61 of the Care Standards Act 2000, after subsection (1) insert—

(a) Any organisation which employs individuals to undertake the functions and roles of a social worker must ensure that any individuals occupying such posts are appropriately qualified and registered as a social worker.

(b) All qualified and registered social workers should operate at all times within the International Ethical Principles for Social Work.”’.

New clause 6—College of social work—

‘(1) There will be statutory guidance and regulation to ensure that Government and Local Government, the Chief Social Worker, the Social Work and Health Professions Council, inspectors and employers consult with and respond to the advice offered by the College of Social Work.

(2) The statutory entitlements of the College of Social Work will be dependent on its ability to demonstrate every four years that it has 51 per cent. of registered social workers in membership; if it fails to do so its statutory role will be suspended for 12 months and thereafter indefinitely until this can be rectified.’.

New clause 5—Chief social worker—

‘There will be a Chief Social Worker—

(a) to report to and advise Ministers,

(b) to make an annual report to Parliament on the state of social work in England,

(c) to work in close co-operation with the College of Social Work, the Social Work and Health Professions Council, the Professional Standards Authority for Health and Social Care, the National Institute for Health and Care Excellence, inspectors and employers.’.

New clause 18—Assessed and supported year in employment for newly qualified social workers—

‘In section 60 of the Health Act 1999 (regulation of health care professions etc.), in subsection (1), after paragraph (e) insert—

“(ea) introducing a class of provisional registration to support a requirement for persons who are newly qualified social workers to complete an assessed and supported year in employment.”’.

Emily Thornberry (Labour, Islington South and Finsbury)

I hope that I have the right list, Mr Hood. Are we debating clause stand part and new clauses 5, 6, 15, 17 and 18?

Jimmy Hood (Labour, Lanark and Hamilton East)

I have not called new clause 17.

Emily Thornberry (Labour, Islington South and Finsbury)

The purpose of new clause 5 is to provide in the Bill for a chief social worker for England. The devolved nations of Scotland, Wales and Northern Ireland have a chief social worker, so why is there not one in England? The Conservatives recently made a commitment to extending that role to England in a document by the Conservative party commission on social workers, “Response to Lord Laming’s Inquiry”. That was published in February 2009, so what is in the Bill may be a broken promise. That long-standing commitment by the Conservative party was not only mentioned in 2009: “No More Blame Game”, published in October 2007, also by the Conservative party commission on social workers, stated on page 11:

“We recommend a Chief Social Worker (similar to the role of the Chief Social Worker in New Zealand) be employed in the Department of Health in the Office of the Director General of Social Care. He or she would work across government departments, with UNISON, BASW and other representative bodies and with the media to monitor the ‘health’ of the profession and with the media providing them with good news stories and cases.”

It is a long-standing promise that the Minister’s new friends have given, so it is entirely appropriate in the circumstances for me to hold him to it. This is the hon. Gentleman’s opportunity to cast aside the briefing notes that his civil servants have given him, speak to his new friends, and realise that he is now in a position to deliver on their promises. If possible, I will divide the Committee on new clause 5 at the appropriate time.

New clause 6 is about a college of social work. As the Minister knows, I am sure, there is a lack of clarity about where the main college of social work rests, and the new clause attempts to rectify that. The social work taskforce recommended the establishment of a college of social work to raise the standing and status of the profession. BASW originally promoted the idea of a college of social work, and the taskforce and a referendum of its members in April 2010 confirmed that social workers require a powerful body to advance their profession. If there is no statutory duty on the Government, local government, regulators and others to consult the college, it will have no power. On the other hand, the college of social work will need to demonstrate its continuing credibility by obtaining and retaining 51% of all social workers in membership.

New clause 15 is about care standards, and it brings us back to the debate we began a few minutes ago about what the role of social workers is, who should be doing it, and how we define it. There is grave concern among social workers that their very profession is being undermined by current trends. Protection of the title of social worker, as established by the Care Standards Act 2000, was an important measure to ensure that those who had job titles that include “social worker” are registered and regulated. There are however, myriad job titles in place and under development that relabel work done with the most needy and vulnerable people when such people are at the most needy and vulnerable times in their lives.

The concern is that the regulation of the role of social worker is being bypassed by people simply giving themselves another name, and so not needing to be regulated or to adhere to the high professional standards that are required of social workers. In any circumstances, that would be wrong, but given the kind of job social workers have and the trust that we give them, as well as the fact that they have to work with the most vulnerable, it is very worrying. The new clause seeks to correct that trend. The argument of far too many employers is that if someone is not described as a social worker, they do not need to register, which, therefore, denies the public the protection that Parliament has decided is required. What is the point of regulating and reforming the function of social work if people can flagrantly get round the measures by simply calling themselves something else? I am interested to hear what the Minister has to say about that.

New clause 18 is about the first year of a newly qualified social worker being assessed and supported. Again, the concern, which I certainly found in my previous profession, is that qualifying is all very well, but a person needs a certain amount of time to practise and be given assistance by others more experienced, to ensure that they develop necessary the level of professionalism. At the Bar, we certainly needed our year’s pupillage, and I am sure that those in many other professions also benefit from a year spent newly qualified and practising but being looked after by others. In social work, the last thing we want is someone inexperienced making mistakes, because the result could be catastrophic. Given the high turnover of social workers, it is important that newly qualified social workers are supported at the beginning of their careers.

The new clause would set up intermediate, provisional registration for newly qualified social workers, so that someone would a social worker but on a “provisional licence”, if I can put it that way. Newly qualified social workers would complete an assessed and supported year in employment, during which they would have a smaller case load and more experienced social workers would look after them. That would leave them time to develop skills and receive further training when necessary.

An assessed year in employment for new social workers was a recommendation of the social work taskforce in 2009—the Minister will be able to find it on page 6, paragraph 4 of the report. I have a spare copy for him if he does not have one by his bedside. The recommendations need to be addressed, but unfortunately they have perhaps been overlooked. They are not addressed in the Bill and the new clause offers an opportunity to put that right. I urge the Committee to agree to accept new clause 18 so that we have provisional social workers who are given the support and training they need.

The Secretary of State for Education told the House:

“The coalition Government will build on”

the initiative of my right hon. Friend the Member for Morley and Outwood (Ed Balls)

“in this area, in particular taking forward the recommendations of the social work task force.”—[Official Report, 2 June 2010; Vol. 510, c. 456.]”

Again, one of the Minister’s new friends seems to have promised that the Government would put the recommendations made by the social work taskforce into legislation. Here is his opportunity to deliver on their promises. Will he implement the recommendation of the taskforce? If not today, when? If not at all, why not?

Jimmy Hood (Labour, Lanark and Hamilton East)

I did not call new clause 17, but now that the hon. Member for Strangford has joined the Committee, I should say that with this it will be convenient to discuss new clause 17—Northern Ireland Assembly and Legislative Consent —

‘In section 62 of the Health Act 1999 (regulation of health care professions etc.), after subsection (10), insert—

“(10A) But if any provision made by an Order in Council under that section would, if it were included in an Act of the Northern Ireland Assembly, be within the legislative competence of that Assembly, no recommendation is to be made to Her Majesty to make the Order unless a draft—

(a) has been laid before, and approved by resolution of, each House of Parliament, and

(b) has been laid before, and approved by resolution of, the Northern Ireland Assembly.”’

Jim Shannon (DUP, Strangford)

Thank you, Mr Hood. May I first apologise to the Committee for not being here earlier? I was next door in another Committee. I put forward the new clause as an amendment to clause 194. I understand that all Committee members are aware of it, and I certainly wrote to the Ministers to make them personally aware of it. [ Interruption. ]

Jimmy Hood (Labour, Lanark and Hamilton East)

Order. Jim Shannon.

Jim Shannon (DUP, Strangford)

Mr Hood, I want to ensure that everyone is aware of the new clause. Faces across the way are looking searchingly at me. I made it my business to contact the Committee Clerk and I wrote to the Ministers to give them a copy of it. Is that correct?

Jimmy Hood (Labour, Lanark and Hamilton East)

Order. The new clause is on page 575 of the amendment paper.

Jim Shannon (DUP, Strangford)

The reason why I introduced the new clause is a bit like a Presbyterian sermon, in that it has three parts—there is an introduction, a main course and a dessert. Sometimes there is a cup of tea at the end as well.

In Northern Ireland, we need legislation similar to that for Scotland, and I want to explain why. Health professional regulation is currently a devolved matter in Northern Ireland, and a partly devolved matter in Scotland. Any profession regulated after 1999 is within the Scottish Parliament’s competence—for example, dental assistants and pharmacy technicians. The Health Act 1999 created new powers for the Secretary of State for Health in Westminster to make changes to health professional regulation by means of secondary legislation—section 60 orders. Respecting devolution in Scotland, any such orders for new professions must be accepted and approved by resolution of the Scottish Parliament.

We now have a provision for the Scottish Parliament in relation to matters that come from Westminster, but we do not have that in place for Northern Ireland. The reasoning for that is quite simple: it seems that the Northern Ireland Assembly was in suspension. I am glad that things have moved on since then, and that we now have an Assembly that works continuously, and involves all the devolved parties. However, the provision fully to devolve health professional regulation was not made. The new clause would give the opportunity for that to happen—indeed, it would correct that very mistake. It is not a controversial issue; it brings the law in Northern Ireland into line with what happens in Scotland.

In what way would the new clause be beneficial? Devolution of health professional regulation does not necessarily mean taking different approaches to regulation across the UK. However, it does mean that the opinions of Scotland and Northern Ireland should be guaranteed in the process of developing regulation where it has major impacts on the health services, patients and professionals in those countries. For example, revalidation and the Medicines (Pharmacies) (Responsible Pharmacist) Regulations 2008.

Currently, the Secretary of State can institute large-scale changes to health professional regulation without statutory reference to the Northern Ireland Assembly. That is what happens at the moment. It does not happen for Scotland, but the provision is not there for Northern Ireland. The new clause would have the benefit of guaranteeing the voice and opinion of Northern Ireland Assembly Members on a level equal to MSPs. Alternatively, in the words of the BMA for Northern Ireland, it would ensure all health professional regulation is devolution-proofed:

“The amendment brings Northern Ireland into line with the status of Scotland. This seems eminently sensible, given that medical regulation is a fully devolved issue to the Northern Ireland Assembly.

“This would allow the Northern Ireland Assembly to scrutinise any proposal before it becomes an Order in Council to ensure it will be sensitive to local needs while maintaining a UK wide approach on appropriate health policies”.—[Official Report, House of Lords, 24 June 2008; Vol. 702, c. 1372.]

Lastly—and this is the third part of the so-called Presbyterian sermon—would the new clause present any difficulties? Evidence presented to the Scottish Parliament Scotland Bill Committee suggests not. It has been done through the Scottish Parliament without any difficulties. Committee members there have recently been investigating the operation of section 60 order approvals in that legislation since 1999, and have taken evidence from many stakeholders. Duncan Rudkin, chief executive of the General Pharmaceutical Council for Great Britain, remarked:

“Our experience so far is that, in our set-up phase during 2010, the section 60 order under the Health Act 1999 that created the General Pharmaceutical Council and set our framework, and the subsequent subsidiary instruments that needed parliamentary approval in Westminster and the Scottish Parliament, were handled efficiently and did not cause us any practical problems. We are perfectly content to work within the current system.”—[Scottish Parliament Official Report, 25 January 2011; c. 270.]

Referencing the wider benefits of section 60 order approval by the Scottish Parliament, the Scottish Government representative said:

“The devolved competence of the Scottish Parliament ensures that the Scottish Government has a formal and robust position in the inter-Governmental negotiations. It also ensures that the final result is satisfactory to the democratic representatives of the Scottish people…Devolved regulation has clear benefits for Scotland, enabling regulation to be tailored to the needs and circumstances of the Scottish health service. It also ensures that Scotland has a voice in wider decisions taken at a UK level which have implications on devolved health matters.”

The new clause corrects a mistake, or perhaps an oversight, in the Health Act 1999, and I believe it is entirely within the spirit and purpose of devolution, helping to ensure that health professional regulation is fit for purpose across the whole United Kingdom. We in Northern Ireland are very proud to be part of the United Kingdom. The amendment guarantees the Northern Ireland Assembly a formal say in all major changes to health professional regulations that impact upon the Northern Ireland health service, patients, and professionals.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The new clauses cover a number of issues. I hope that, in discussing them, we will debate whether the clause should stand part of the Bill.

We are indebted to the British Association of Social Workers for some of the issues that have been brought to the Committee’s attention today and perhaps for some of the words that have formed the new clauses. I will be straightforward with the Committee: the Government understand and are sympathetic towards the intentions behind the new clauses. However, the exception is the measures around section 60 orders, which we will come to in the context of the new clauses of both the hon. Member for Islington South and Finsbury and the hon. Member for Strangford.

The Government propose to give further consideration to the role of a chief social worker, which the hon. Member for Islington South and Finsbury raised on behalf of BASW and other social workers. I must say that I have not avidly read all the documents that the hon. Lady listed in her opening remarks, but they undoubtedly set out important issues that parties have given consideration to and that should be considered by the Government.

We are also clear that a college of social work can and should and will, in future, play a critical role. For too long, the voice of social work has not had such a powerful representative body, and, for perhaps too long, there has been an expectation that the General Social Care Council would somehow fulfil that role on the behalf of the profession. That was always a misguided understanding of the role of that body, but now, by having a social work college, we can begin to see that being put right. That is something that the Government are putting their full weight and support behind.

With regard to the chief social worker and the further development of the status of the college, it is our intention to address in greater detail the Government’s policy and agenda for legislation in the next Session in the White Paper that we intend to publish later this year. The reason for that is quite simply that the Law Commission will shortly publish its report on social care law reform, and it seems that the opportunity to look at all aspects of social care law and the role of social workers is not in the Bill, which has a primary focus on health reform.

Emily Thornberry (Labour, Islington South and Finsbury)

What the Minister says is worrying on several levels. First, the Bill, as its name implies, is a health and social care Bill. I appreciate that there is little social care in it, but health and social care must always go hand in hand. Secondly, the role of social workers is not just in social care and health. Social workers also work in crime and other areas, so it will always be difficult, when looking at legislation, to know where reform of the social work profession sits neatly. It strikes me that this is as good a place as anywhere else.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I am sorry to have worried the hon. Lady. My remarks were intended to reassure her about the direction of travel that the Government are taking, which involves seeing the value of the office of the chief social worker and backing the development of a college of social work with hard cash. That work is proceeding, and I am merely suggesting an orderly way to do it that will result in the best possible outcome for social workers and others.

New clause 5 would create the office of the chief social worker. There is already a significant programme of work, as I have described, to address issues around how we can reform and strengthen the social work profession. In particular, Professor Eileen Munro has been charged with reviewing the child protection system in England, and, as part of her review, she has been asked to consider the merits of there being a chief social worker in England. To be clear, that post would cover not only children’s services, but all social workers.

In addition, we are currently considering the wider framework for adult social care. We would certainly not rule out the possibility of creating an office of the chief social worker in the future. If the findings of these reviews indicate that the creation of such an office should be part of the reform of the social care system, we will need to give careful consideration as to how the office would be established, what duties and powers the office holder should be given, the costs and so on.

The hon. Lady suggested a role that seemed insufficient in a sense; it seemed to be one of looking for good examples and promoting them. I think the role is far more important than that. We need to make sure that we fully capture the range and responsibilities of such a post.

Emily Thornberry (Labour, Islington South and Finsbury)

The illustration of what the chief social worker would do came from the Conservative party document; I was simply quoting from that.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The coalition Government have asked Eileen Munro to conduct this piece of work so that we have a rounded proposal that we can consider in government and we can come forward with a White Paper that sets out many of those issues later this year.

New clause 6 would require statutory guidance to be issued and regulations to be made which would require a range of bodies to consult with and respond to the advice of the college of social work. The Government strongly support the establishment of the college of social work, and not just with words; we are backing it with practical resources and support. We believe that the social work profession needs a body that can provide leadership for the profession.

The Health Professions Council is already under a general duty of co-operation with certain bodies and persons representing, or otherwise concerned with, registrants that will, as a result of the changes made in the Bill, include social workers in England in future. We would not rule out requiring specific bodies or organisations to consult with and respond to the advice provided by the college of social work, once it has been properly established. But as the hon. Lady has alluded to on a couple of occasions, it is on a bumpy path to its establishment and we are doing all we can to make sure that it attains the critical mass of membership to be genuinely the voice of the profession.

We will give further consideration to ways to enhance and strengthen the college as we take forward development of the forthcoming social care White Paper. However, we think that it would be premature to place specific duties in the Bill as suggested by the hon. Lady. She asked me about definitions earlier, and let me say one other thing about that. I was hoping to convey the fact that we do not disagree with BASW about the definition it has come up with in concert with others. While those definitions set out in amendments 472 and 473 are good, they are not suitable for the legal purpose of that part of the Bill. That was why we were concerned with the drafting.

New clause 15 seeks to protect the functions as well as the title of social work. I have touched on this a bit already. We have covered the issue of protecting functions in legislation and the unintended consequences of doing that. Indeed, in regulating social workers in England, we need to ensure that the legislation is flexible enough to enable the regulation of all activities that a social worker may undertake. Indeed, the whole issue of protection of title is the approach that successive Governments have generally taken to the regulation of individuals in both the health and social care sectors. It has ensured that the regulation of professionals can readily adapt to changing roles over time.

On a technical point, the Bill amends section 61 of the Care Standards Act 2000 so that an offence under that section applies only to a person in Wales. The protection of title for social workers in England is provided for in article 39 of the Health Professions Order 2001. So it makes little sense for the new clause to be inserted into section 61, as it would apply only to Wales. From a technical point of view, it probably does not do what the hon. Lady intended.

In reference to new clause 18, the hon. Lady asked whether the Government were resiling from their commitment to the recommendations from the taskforce. The answer is no. We are very clear, as she has said, that the work that the social work taskforce has done is critical to the future of social work. We support it. We continue to work with the board and very much support its work. So new clause 18 would enable the introduction of provisional registration for newly qualified social workers under section 60 of the 1999 Act.

We expect the reform board to develop proposals for an assessed and supported year in employment for newly qualified social workers. We would not rule out making changes to the regulation of social workers in England to implement the assessed and supported year in employment if there was a clear case for doing so. We are asking the board to do that work and make such a case if it thinks it appropriate. If regulatory changes are necessary, however, section 60 of the 1999 Act, as amended by clause 193, would give us the necessary powers to make such changes.

The hon. Member for Strangford spoke to new clause 17, and I want to address his points. The new clause would require an order made under section 60 of the 1999 Act to be laid before and approved by the Northern Ireland Assembly where the order includes provision on devolved matters. Legislative competence on the regulation of health professionals and other health care workers is fully devolved to Northern Ireland, so the Northern Ireland Assembly is free to legislate on such matters through an Act of the Northern Ireland Assembly, should it wish to do so.

As the hon. Gentleman told us, at present there is a similar provision that provides for section 60 orders on matters devolved to Scotland to be laid before and approved by resolution of the Scottish Parliament. New clause 17 would create a similar approach.

I think the hon. Gentleman’s issue is with parity of treatment in how devolution works. In the coalition agreement, however, the Government set out their intention to implement the recommendations of the Calman commission on Scottish devolution. We are seeking, through the Scotland Bill, to make the regulation of all health professions a matter reserved for the Westminster Parliament. We oppose the amendment because it would introduce an unnecessary delay to a system that needs to be responsive and flexible in dealing with emerging risks to public protection and because it would create a situation similar to the one that has been criticised by the Calman commission.

The Calman commission has stated that the current situation, whereby section 60 orders that contain provisions that fall within the legislative competence of the Scottish Parliament are required to be laid before and approved by the Scottish Parliament, is unnecessarily time-consuming and cumbersome. That is why the Scotland Bill would in effect prevent section 60 orders from needing to be laid before and approved by the Scottish Parliament in future.

It is worth noting that, although the power proposed in respect of the Northern Ireland Assembly would be similar to the one that currently exists in Scotland, it will not be consistent with the one that will exist in the near future because of other legislation that is currently passing through the House. For that reason, I urge the hon. Gentleman not to press his new clause. I would also add that the Department of Health, Social Services and Public Safety in Northern Ireland does not believe the amendment to be necessary. He might want to take that into account.

I also urge the hon. Member for Islington South and Finsbury not to press her amendments. If she does, I urge my hon. Friends to oppose them.

Emily Thornberry (Labour, Islington South and Finsbury)

I cannot see why the Minister needed to take quite so long, because the arguments seem to be very strong. However, in light of his comments and of the reassurances that he has given to the profession this morning, it would seem churlish to press the amendments to a vote. We are watching, however.

Jim Shannon (DUP, Strangford)

Does the Minister have any indication of the time scale for the changes in Scotland? Obviously, Scotland will become more like Northern Ireland, rather than Northern Ireland getting the advantages that Scotland has.

Secondly, I have a point to make about the Northern Ireland Assembly and the Department of Health, Social Services and Public Safety. I understand from my discussions with the Minister in Northern Ireland, who as of last week is in purdah, that he and his Department are sympathetic to my amendment. I am keen for the Minister to respond to both my points.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

On the first question, which was on the timings, the Scotland Bill is obviously still going through the House. It is slightly further along the road than our Bill. I will write to the hon. Gentleman in more detail about the commencement once the Bill is enacted, so that he has the necessary details.

On the other point, all I can say is that officials in the Department of Health have consulted colleagues in the Department of Health, Social Services and Public Safety who are responsible for health and social care. I have shared with the hon. Gentleman the advice that they gave us. If there is any doubt about that, and if his colleague, the Minister in Northern Ireland, has any further representations, I would be pleased to entertain them.

Jim Shannon (DUP, Strangford)

On a point of order, Mr Hood. I am not trying to be awkward, but I and those who have contacted me are of the opinion that new clause 17 should be put to the vote. Can I do that?

Jimmy Hood (Labour, Lanark and Hamilton East)

The answer to the hon. Gentleman’s question is yes and no. At present, no, but when we reach the new clauses at the end of the Bill he will have the right to put new clause 17 to a vote.

Clause 197

Emily Thornberry (Labour, Islington South and Finsbury)

I want to raise a number of concerns about this clause. Concerns have been expressed in the social work sector that moving social work regulation to the Health Professions Council—soon, perhaps, to be called the Health and Care Professions Council, although we will discuss that later—which has no experience of social work or social care, risks damaging the distinct role of social work and losing it in an organisation that is dominated by other professions.

A considerable amount of debate has taken place in the sector about that, and the Minister may be aware of an article from Community Care on 3 August 2010, in which a number of people were interviewed about the matter. One of those was Des Kelly, the executive director of the national care forum, who said:

“There is a real risk that merging improvement bodies will lose the distinctive contribution of social care. Social care provision, although still largely a publicly-funded service, is different from the NHS, with more than 40,000 employers and with even greater diversity as personalisation develops new services and employers.”

David N. Jones, who was an Ofsted inspector from 2007 to 2010, and who was general secretary of the British Association of Social Workers, said in the article:

“Some social workers are in healthcare settings, others are in, say, criminal justice and children’s services, so there has to be a huge change in the healthcare body to engage with the whole spectrum.”

Indeed, I have made that point in relation to an earlier clause. Although some social workers work within the social care spectrum, not all of them do. The expertise that it is necessary to develop as a social worker means that people sometimes work in criminal justice or sometimes work in children’s services, each of which has a distinct ethos and is an important part of the profession; it is recognised that social workers are engaged in a whole spectrum of work. Huge change is required in the health care body if it is to engage with that spectrum.

In the article from Community Care, Mr Jones continued:

“Social work is crucial to supporting health and education but, because social work is a small profession, has fewer people involved and only deals with some of the most difficult cases that come before universal services, there’s a risk that it becomes dominated by other professions.”

Social workers are concerned that they will be swallowed up by the Health Professions Council and that other professions will dominate the body. At a time when we should be building on the professionalism of social workers and increasingly recognising them, the arguments made by the profession are valid and they deserve some clear answers from the Minister.

Will the Minister also explain the benefits of abolishing the General Social Care Council and transferring social workers to the Health Professions Council? What criticisms does the Minister have of the General Social Care Council? In what way was it not fulfilling its role properly, and why does he expect the Health Professions Council to do a better job? Does he agree that there is a real risk of resources being wasted in rearranging those structures? There is concern about the future of social care reform. As the Minister knows, the Social Work Reform Board has been tasked with putting in place recommendations made by the social care taskforce, and it is in the process of doing that. However, the reorganisation caused by the legislation could prevent the recommendations from being put into place as quickly as they should be. The concern, therefore, is that the legislation could get in the way.

In a letter to Ministers in the Department for Education and in the Department of Health, as well as to the Minister for Universities and Science, members of the Social Work Reform Board expressed their disappointment at the decision of the review of arm’s length bodies. The chair of the reform board, Moira Gibb, wrote:

“While we note the rationale for such a change we were disappointed that the contribution GSCC has recently been making to our work was not recognised. We would advocate for the GSCC changes to be timed to maximise their contribution to the speedy delivery of the Task Force’s recommendations. In particular the GSCC has been working to deliver the Task Force recommendation on more transparent and effective regulation of social work education, to assure greater consistency and quality. It would be unhelpful to lose this improvement because organisational change is required.”

The concerns that have been raised about this part of the clause are legitimate and we need a detailed answer, because there are worries about where the change will take us.

Concerns have also been expressed about fees. Previously, social workers had paid a fee of £30 to the GSCC for registration, but they are now being asked to pay £76 to the Health Professions Council. Social workers joining the college of social workers will also be asked to pay a fee. Comparisons have been made with teachers, because their annual registration fee will rise to £36, and for permanent teachers in the state sector, that cost is usually met by the employer. Has the Minister considered how those higher costs to a profession that is hardly the most highly paid can be phased in?

Another area of concern is students. The GSCC currently registers students on a voluntary basis, and student registration is at very high levels—around 95%. The GSCC argues that students should continue to be registered as they are now. Moving away from registration at this time would give the wrong message to people aspiring to become social workers and to the public, whose trust and confidence in social work requires development. The point that is being made seems sensible, and we urge the Minister to provide a considered answer. The Health Professions Council does not currently register students, suggesting that there is insufficient evidence to say that it is necessary to protect the public. Simply, we respectfully disagree with that.

Registering students is an important part of the GSCC’s remit, because social work students, within weeks of beginning a course, can be placed in front-line teams with access to vulnerable children and adults. As a representative of an inner London constituency, I do not think that I should overestimate the importance of that point. The Minister represents a London constituency, too, and he knows that social work departments are under considerable strain. Far too often, students are given too much responsibility, too early. The idea that they will not even be registered is a cause of legitimate concern. Will social work students continue to be regulated, and if so, how?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I am grateful to the hon. Lady for making those points. It is useful to put such issues on the record. I have discussed them with many people in the field of social work and social care over the last nine or 10 months, as I have worked with colleagues on the oversight groups that are dealing with the transition from the General Social Care Council to the new Health and Care Professions Council, which will take on social work in the future. I have also met Moira Gibb and her colleagues on the Social Work Reform Board.

Public confidence in health and social care professionals is underpinned by a system of regulation, which ensures high-quality education and training, controls entry into the profession and enforces codes of conduct and ethics, which help to foster, develop and sustain professional values and individual accountability. Currently, social workers in England are regulated by the General Social Care Council, which is an arm’s length body subsidised by and answerable to Government and, as far as discipline is concerned, it is limited to looking at individual conduct when concerns are raised about someone’s suitability to continue to undertake social work. That model contrasts with the one adopted by health regulators, which are self-funded and answerable to Parliament through the Privy Council. They operate full fitness-to-practise systems that enable them to consider an individual’s conduct and competence in the round.

An independent review by the Council for Healthcare Regulatory Excellence of the conduct functions of the General Social Care Council in 2009 recommended that the regulation of social workers in England follow the model of health regulators. The previous Government accepted those recommendations. We considered these issues when looking at the GSCC as part of the Department of Health’s review of arm’s length bodies. In “Liberating the NHS: Report of the arms-length bodies review”, we concluded that the regulation of social workers in England should be transferred to the Health Professions Council, which is an existing health regulatory body, and that the GSCC should be abolished. To reflect the HPC’s new remit across social care, the Bill will rename it the Health and Care Professions Council—we will come back to the name a little later.

The clause makes provision to abolish the GSCC. Before coming to a view on abolition, we looked at all the options for making the GSCC independent of Government, as per the recommendation of the CHRE. Figures provided by the GSCC at the time suggested that to become fully self-funded, it would need to raise the fees of registered social workers in England to between £250 and £300 a year. In the same way that the hon. Lady is concerned about the costs of registering with the HPC, we believed that it would be unrealistic to expect individual social workers in England to meet those costs. By contrast, the HPC charges its registrants an annual fee of £76. It is an experienced and effective regulator of 15 health professions, including some, such as occupational therapists, who work across health and social care. It operates a well- established fitness-to-practise system and has experience of taking on the regulation of new groups of professionals, the latest being psychologists in 2009.

The hon. Lady asked about transition, and I shall be brief in responding to her concerns. As part of the transition work, we established a social work regulation oversight group. Its role is to advise the Government on planned, cost-effective action to transfer the regulation of social workers to the HPC. The group provides assurance on the work to maintain the safety and well-being of children and vulnerable adults through a smooth transfer of statutory functions, and it provides support to the programme. It includes Moira Gibb, chair of the Social Work Reform Board, and senior members of the GSCC, the HPC and the Department of Health and the Department for Education, and it is chaired by the chief executive of the CHRE. It has made good progress in addressing the issues of transfer, and it has enabled us to be confident that the transfer will progress successfully.

The hon. Lady also asked about the HPC’s knowledge and expertise of social work. The HPC has long experience of working with a range of professions and developing its knowledge and skills as necessary to be an effective regulator. Its standards of proficiency for professions are developed by a professional liaison group, which includes representatives of the professions, employers and educators. In addition, to ensure that it has good professional input into what it does, it uses contracted partners to provide the expertise it needs for its decision making. Partners will take on roles including assessing continuing professional development and sitting on fitness-to-practise panels. That goes some way to addressing the concerns.

To ensure that there will be no gap in the assurance of the standards of social work students, we intend to provide for the transfer of the voluntary register of social work students to the Health and Care Professions Council, pending full consideration of the best approach to assuring the safety and standards of student social workers. In other words, we have a voluntary arrangement in the GSCC and we intend to transfer that lock, stock and barrel to the HCPC in future. The HPC wrote to me following a meeting I had with it last week, and it committed to undertake a review of the risks in relation to students of all the professions that it regulates, including student social workers. That process will result in it setting out the risks and issues relating to social work students.

The HPC has assured me that it will continue to make every effort to maintain current close working relationships with the field and to ensure that social work expertise and evidence inform all decisions. With those assurances I hope that the hon. Lady will accept that the clause should stand part of the Bill.

Clause 198

Emily Thornberry (Labour, Islington South and Finsbury)

I beg to move amendment 547, in clause 198, page 169, leave out line 7 and insert—

‘(b) is to change its name to the Social Work and Health Professions Council.’.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss the following: amendment 548, in clause 198, page 169, line 12, leave out

‘“The Health and Care Professions Council”’

and insert

‘“The Social Work and Health Professions Council”’.

Amendment 549, in clause 198, page 169, line 16, leave out

‘“the Health and Care Professions Council”’

and insert

‘“the Social Work and Health Professions Council”’.

Emily Thornberry (Labour, Islington South and Finsbury)

This is about the name. Although on the face of it, it seems a superficial concern, it has caused a great deal of anger among social workers. The General Social Care Council will be abolished. It regulates social workers, who will be brought under the wing of the Health Professions Council which may or may not change its name to acknowledge that and other changes. Social workers are not happy with the new name. They would like to know what other care professionals it is envisaged the Government will regulate. Registration will be looked after by the Health and Care Professions Council, if that is what its name will be, but it will be voluntary and very light touch, which we think is wrong.

The one non-health body that emphatically will be regulated by the new body consists of social workers. Why can its name not reflect that fact? There is a great deal of anger about this and words such as “insult” have been used to describe the Government’s proposal. Perhaps I can give the Minister a taste of how strongly social workers feel about this by reading a couple of lines from my briefing note, which says that

“changing its title to the Health and Care Professions Council is absurd because it will have no ‘care professions’ under its control and disgraceful because it doesn’t even mention the profession whose numbers will far outweigh all of the other professions it regulates.”

That is how strongly the profession feels about this. The amendment attempts to change the name so that it properly reflects the outstanding professionals who will be part of this body and need to be regulated by it.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I am always cautious when words like “anger” are used when an amendment is moved. I can well understand that there is feeling and concern but it is almost too strong to suggest that there is anger about the name when what we should focus on is its purpose. The purpose is very clear and it is one that we share: it is to make sure that we have the most effective set of arrangements as possible for the regulation of professional standards and the setting of educational standards to protect the interests of the public. Had the concern been as substantial as is now suggested perhaps in the 10 years since the introduction of the Care Standards Act 2000, some consideration might have been given to changing the name of the General Social Care Council to reflect the fact that it predominantly regulated social workers.

It is curious to suggest that the name should be such a touchstone, as the reality should be how we ensure that the measure delivers what the profession needs, which is certainty, consistency and greater status and standing. However, the issue of the name is not unimportant, and over the past few months I have spent many meetings discussing those concerns. The name of the new organisation has been a matter of considerable debate, and we have made it absolutely clear that the name of the Health Professions Council will change to reflect its wider remit across both health and social care. The Government sought advice on a preferred new name from the social work regulation oversight group to which I referred in an earlier debate, and which is there to advise Ministers on the smooth transition. The oversight group proposed two options: the “Care Professions Council”, which I suspect falls foul of the concerns that the hon. Lady has just described, and the “Health and Care Professions Council”. The Government’s view was that the latter name would reflect the functions of the council as a whole more accurately.

The Health Professions Council regulates 15 professions, each of which makes important contributions to the well-being of people in England and the wider UK. None of those professions are specially mentioned in the name of the Health Professions Council, as it would not be right to single out one profession and place it above all others. However, the Health Professions Council has acknowledged that, given the increasing breadth of professions that it will regulate, greater public clarity of its role is needed. It has confirmed to me that its new name will be supported by a very clear strap line, “Regulating health, psychological and social work professions”. If the hon. Lady has not been reassured by my comments, I urge my hon. Friends to vote against this alternative name change and support the change proposed in the clause. On that basis I hope the hon. Lady will withdraw her amendment.

Emily Thornberry (Labour, Islington South and Finsbury)

I will try not to rise to the Minister’s challenge as to my bona fides when I express the anger that social workers have told me that they feel about this issue. I read him part of my briefing note, and I assure him that people do feel very strongly about it. I am surprised that he challenged my truthfulness in relation to this. I do not intend to withdraw the amendment.

Clause 199

Emily Thornberry (Labour, Islington South and Finsbury)

While the clause deals with functions of the council in relation to social work in England, perhaps of equal importance is the fact that it deals with different care regulators and their relationships across the UK. How will the Health and Care Professionals Council co-operate with Northern Ireland, Wales and Scotland?

The registration of social workers is a devolved matter in Scotland, Northern Ireland and Wales, while registration in England is reserved to Westminster. Consequently, each of the four countries has its own registration council. However, it has been the policy of the four Administrations that the councils should, as far as possible, align their policies and practices so that there are no barriers to social workers moving within the UK, and so that no public protection issues arise with cross-border working. To that end, the registers of the four care councils are stored on a single database, and data are shared as appropriate and where necessary. As a result, social workers are able to register and move easily throughout the four nations of Britain.

Clause 199 places a duty on the Health and Care Professions Council to co-operate with the other care councils. The Bill also permits social workers to register with care councils outside England in order to practise elsewhere. Social workers can register outside England, but they will be able to work here without re-registering in England. For example, it will be possible to register in Scotland and work in England without registering, as long as that is temporary. We need more clarity, however, about how the arrangements will work in practice, including a definition of “temporary” and the cost to social workers of any transfer or additional registration.

It should be noted that the regulatory models of the care councils in Scotland, Wales and Northern Ireland differ significantly from that operated by the Health Professions Council, and the proposed model for the Health and Care Professions Council. Under the proposed model, social workers could be held to account based on an assessment of their fitness to practise, including their professional competence. In the rest of the UK, however, they may be held to account according to their conduct, which could be different. As a result, there is a possibility that social workers operating in different parts of the UK will be held to account in different ways.

Different fees could also be charged. It might be to the advantage of a social worker to register in Wales and work in England because it would be cheaper. There seems to be a benefit in having consistency throughout the UK, so I hope the Minister will tell us how the Health and Care Professions Council will work with the other care councils to align their approaches to registration as far as possible.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Let me deal first with the broad point about there being a difference between the arrangements in England and in the devolved Administrations. It is perhaps worth reflecting on the fact that when the Council for Healthcare Regulatory Excellence reported on the performance of the General Social Care Council in 2009, one of its recommendations was that we should move to full cost recovery with the GSCC, while another was that we should move to a fitness-to-practise regime of the sort already adopted by the Health Professions Council. Both those recommendations were accepted by the previous Government. They have also been accepted by this Government, and we are giving effect to them through the Bill. The difference that the hon. Lady describes would therefore have emerged as a result of the changes that the previous Government were putting in place following their acceptance of the recommendations.

The hon. Lady asked how the care councils will co-operate, and the clause actually provides for issues around co-operation in the future. She also asked about the definition of “temporary”, which I shall explain. There are many reasons why a social work registrant in Scotland, Wales or Northern Ireland may work in England on a short-term basis. For example, they might work in England occasionally to carry out urgent social work interventions when necessary. We do not want inadvertently to create a situation in which a social worker registered in Scotland, Wales or Northern Ireland would be committing an offence when undertaking legitimate and necessary temporary work in England. It is therefore not right to define “temporary” in the Bill, as the hon. Lady suggests.

The hon. Lady also asked how we will ensure that the Health and Care Professions Council will work with its colleagues in the care councils in Scotland, Wales and Northern Ireland. It is important that that takes place, so we have included in the Bill a new duty on the Health and Care Professions Council to co-operate with the care councils in Scotland, Wales and Northern Ireland. We would expect them to work together to ensure that issues around information sharing are properly dealt with. The remit of the social work regulation oversight group, which I described earlier, includes consideration of the four-country aspect of social work regulation, and we would expect the group to advise Ministers on the actions that it thinks are necessary to ensure that the transfer is developed with regard to these crucial relationships, which will be an important part of the work that will be taken forward over the next period. With those reassurances, I hope that the hon. Lady will feel able to support the clause.

Clause 200

Emily Thornberry (Labour, Islington South and Finsbury)

I beg to move amendment 647, in clause 200, page 171, line 34, leave out

‘High Court of Justice in England and Wales’

and insert

‘First Tier Tribunal (Care Standards)’.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss amendment 648, in clause 207, page 177, line 40, leave out

‘High Court of Justice in England and Wales’

and insert

‘First Tier Tribunal (Care Standards)’.

Emily Thornberry (Labour, Islington South and Finsbury)

Amendments 647 and 648 deal with the same concern. As Committee Members are presumably aware, given our debates this morning, the Bill heralds a significant change for social workers who are presently registered under the GSCC but will in future have to register under the Health and Care Professions Council. The question is about the right of appeal. The change is that the right of appeal will be only to the High Court, rather than to the first-tier tribunal for care standards. Such a detrimental change is causing great disquiet among social workers because the permissible grounds for appeal will be narrower and less responsive to the complexities of social work cases. It will be more difficult to appeal, and pursuing an appeal will be more expensive and risky.

The Bill seems to have been drafted without a proper understanding of the real nature of social work. Unlike other health professionals, social workers often work with people who do not want to work with them. Such people can be hostile and resistant to social workers’ interventions into their lives. They do not want to be seen with social workers, and feel that social workers are doing things to them and their family that they do not want. Social workers must therefore exercise fine judgment in complex situations. There can be either deliberate or real misunderstandings between social workers and those whom they are attempting to look after.

To make life even more difficult, there are well-established staff shortages, excessive case loads, chaotic systems and widespread use of agency staff in many social work departments. It is the experience of Unison and many others that social workers frequently do not receive the necessary supervision and support from their employer to be able to practise safely and effectively. Given the cuts that are now taking place as a result of this Government’s reckless behaviour towards the economy, it appears that there will be even greater pressure on social workers over the coming years, so things can only get worse—[Interruption.]

Jimmy Hood (Labour, Lanark and Hamilton East)

Order. Hon. Members should calm down.

Emily Thornberry (Labour, Islington South and Finsbury)

Thank you, Mr Hood.

There is great concern that the new system will reduce access to justice, as parties have to instruct barristers and solicitors, which involves higher costs, and social workers who pursue appeals run the risk of having costs awarded against them. That will act as a deterrent to social workers. The care standards tribunal has proved itself to be accessible, efficient and cost-effective in ensuring fair outcomes for social workers. Does not the Minister agree with that? What has he got against the existing system? If he does not agree with it, will he please give a full critique of the perceived problems? In the opinion of many staff, the system is not broken and certainly does not need fixing.

I have a couple of examples of first-tier tribunal decisions for the edification of the Committee. They demonstrate decisions that could not have been made by the High Court, and yet are just and fair decisions for the social worker involved. Given that appeals to the High Court may be brought only on very narrow points of law, or on a finding of fact, it will be difficult in some circumstances for social workers to appeal at all, leaving aside the cost, difficulty and, frankly, intimidation of needing to go to the High Court. The existing first-tier tribunal on care standards provides a valuable service. If I may cite my two examples, I believe that I will persuade the Committee that the changes are unfair.

The tribunal accepted the factual basis of an incident in the case of Forbes v. General Social Care Council, but it formed the view that the sanction imposed was too severe. The tribunal was concerned by the

“apparent chaos within the team; a suspended manager, an interim manager and an apprentice deputy team manager should have triggered higher management action to ameliorate the inevitable pressures bearing upon the front-line staff… In terms of public protection we accept that the Appellant has learnt her lesson and that there is very little risk of her acting in such a way again. With respect to public confidence in the services we find that in the context of what happened and the Appellant’s role in it, that an alternative sanction would have been appropriate and proportionate.”

The tribunal can step in to say that a penalty is too far and set aside an appeal. Instead of a social worker losing their job, there are alternative ways of dealing with circumstances in which they are overworked, under-helped, undermanaged and given insufficient support.

May I give the further example of LA v. General Social Care Council, which is case 985.SW from 2007? The tribunal had to bear in mind the professional environment in which the social worker was operating. The department was chaotic, she had no detailed supervision and there was no obvious benchmark against which she could self-assess. The tribunal assumed that there was no appraisal scheme in place. The tribunal decided that the case against Ms A’s good conduct was not made out. On issues of competence, the tribunal arrived at a similar conclusion in favour of Ms A. For instance, on failing to challenge a medical opinion, the tribunal said:

“Casting our minds back to 1999 we wonder whether it would have been accepted as appropriate for a junior social worker to question the opinion of at least 2 consultant paediatricians”.

On other poor practices, the tribunal found that there was a lack of

“supportive and competent managers giving LA the guidance she needed.”

Again, Ms A’s appeal was allowed, and I am sure that the Committee will agree that the result was just. However, such an appeal would not be available if the tribunal was abolished, as under the Bill, and people instead had to go to the High Court with representation from a barrister and solicitors, and the attendant costs and difficulties associated with that.

It is for those reasons that I have tabled the amendments, and I shall be interested to hear the Minister’s reply. If he is not able to reassure me sufficiently, I shall press amendment 647 to a Division.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I am grateful to the hon. Lady for airing those issues. It is important that we speak to the profession’s concerns about the changes, so I am grateful for the opportunity to address some of those.

The hon. Lady rightly talks about the pressures faced by social workers. Those pressures are not new; they have been well documented over many years in this country. She is right to identify that social workers often have to deal with people who do not wish to work with them, but she would be wrong to imply that they are the only professionals who find themselves in that situation, and I suspect that other professional groups would find it odd if she did. The groups that come immediately to mind as facing similar circumstances are probation officers and mental health workers, who might well encounter such difficulties from time to time. Although we should acknowledge the special contribution that social workers make, we should not build a whole argument, as I think the hon. Lady is trying to do, around their being unique in every aspect, when clearly there are other professions that have to confront similar challenges.

Emily Thornberry (Labour, Islington South and Finsbury)

Given what the Minister says, I would be interested to know what the appeal process is for probation officers, for example. Having gone through a first-instance hearing, do they have to take any appeal to the High Court? Is it not the case that other layers of appeal are available to probation officers? Part of my argument is that social workers will have to proceed too quickly to the High Court, which will involve attendant costs, time wasting and intimidation. That is unnecessary if we can keep the first-tier tribunal available.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Let me come to the hon. Lady’s central argument, which is at the heart of these amendments. Amendment 647 would provide for all appeals against fitness-to-practise decisions that are made by the Health and Care Professions Council, or certain of its committees, in relation to social workers who are registered with it to lie with the first-tier tribunal. Amendment 648 would make changes to the Council for Healthcare Regulatory Excellence’s powers to refer final fitness-to-practise decisions of the regulatory bodies that it oversees to the appropriate court, so decisions relating to social workers in England would instead be referred to the first-tier tribunal.

The Government oppose the amendments because we believe that a flawed understanding lies behind their drafting. Amendment 647 would retain the current position whereby all appeals for social workers would go to the first-tier tribunal. Accepting the amendment would be contrary to two recommendations of the Council for Healthcare Regulatory Excellence’s independent review of the General Social Care Council’s conduct processes, which was published in 2009. That review recommended that

“the relevant legislation should be amended so that appeals against decisions made by the conduct committee are heard by the High Court rather than the Care Standards Tribunal.”

The review further recommended that

“the GSCC and DH should review the current primary and secondary legislation relating to the conduct process and replace it with a fitness to practise process which allows it to assess both competence and conduct.”

The hon. Lady describes the change that I have just set out, which was recommended by the CHRE, as detrimental, but that prompts the question of why Ministers in the previous Labour Government accepted that recommendation. I think that they did so for good reasons, and I want to explain what those reasons are and why we intend to carry through that policy intention in the Bill.

The Health and Care Professions Council’s fitness-to-practise appeal process is, in fact, more flexible in its operation than the General Social Care Council’s conduct appeal process. The Health and Care Professions Council will internally review all appeals to determine whether they should be defended in the High Court. It will also have internal mechanisms to deal with review of suspension orders, conditions on practice orders and striking off orders. The important point to remember is that the Health and Care Professions Council, unlike the General Social Care Council, will be able to give full consideration to the range of social work practice in relation to both conduct and competence. At the moment it can deal only with matters relating to competence.

The Health and Care Professions Council will also not be limited to removing, suspending or admonishing a social worker, as the General Social Care Council currently is. Instead, the Health and Care Professions Council will be able, when appropriate, to support social workers in England to improve their practice, for example through the use of conditions on registration. Under the Health and Care Professions Council’s fitness-to-practise regime, social workers can therefore be confident that their cases will be fully considered and that suitable sanction can be imposed without a frequent recurrence of the need to go to court.

The appeals to the High Court need to be seen as part of the Health and Care Professions Council’s overall fitness-to-practise system, which will look at social workers’ conduct and competence in the round, and include a wide range of sanctions of the sort that I have described. In addition, the council has a number of internal systems to resolve such concerns before any need to go before a court arises. Indeed, in 2009-10, only five appeals were made to the High Court—or the equivalent in the relevant UK country—by registrants of the Health Professions Council following a fitness-to-practise decision. The number of people going to court is relatively small as a result of the process that the Health Professions Council has in place, which was recommended by the CHRE.

Taken as a whole, we accept that the costs of a small number of social workers who appeal to the High Court will increase as a result of the new appeals process. At the same time, however, the cost of appeals for other social workers is likely to decrease. In making this change, it is clear to us that the Health and Care Professions Council processes offer many more advantages than those that are under the General Social Care Council. For those reasons, we do not accept amendment 647.

Finally, I turn to amendment 648. If the Committee accepts that the High Court is the most appropriate court to hear appeals against fitness-to-practise decisions relating to social workers in England made by the Health and Care Professions Council, it follows that the High Court is also the appropriate place to hear referrals by the CHRE of such decisions. For those reasons, and given the reassurances and explanation of the extended process that will exist in the future, I urge the hon. Lady to agree with the decisions that her colleagues took in government.

Emily Thornberry (Labour, Islington South and Finsbury)

I have listened carefully to what the Minister has said, but I do not intend to withdraw the amendment.

Clause 207

Emily Thornberry (Labour, Islington South and Finsbury)

Amendment 648 was debated under clause 200 but relates to clause 207. It would remove the reference to the High Court and allow people to appeal to the first-tier tribunal. I urge my colleagues to vote against the clause standing part of the Bill.

Clause 208

Emily Thornberry (Labour, Islington South and Finsbury)

I beg to move amendment 649, in clause 208, page 178, line 20, at end insert

‘and representatives of the professions’.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss amendment 650, in clause 212, page 185, line 1, at end insert

‘including representatives of affected workers’.

Emily Thornberry (Labour, Islington South and Finsbury)

The amendments provide for staff consultation on fees and voluntary registration. They extend the requirement to consult to representatives of the relevant professions and professional groups.

The Bill renames an existing body the Professional Standards Authority for Health and Social Care. It is what I would call the regulator of the regulators. Clause 208 states that the authority must consult the first-level regulators before it decides what its charges will be, which is fine and we certainly do not disagree with that, but those who are ultimately to be regulated should be consulted as well. Amendment 649 proposes consulting representatives of the professions regulated by the authority on the fees paid by their groups. Where a voluntary register is being established, amendment 650 provides that representatives of workers must also be consulted.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Amendment 649 seeks to impose a new duty on the CHRE, which the Bill renames the Professional Standards Authority for Health and Social Care, as we have heard. The intention is that the authority should have a duty to consult representatives of the regulated health and care professions before making a proposal to the Privy Council on the funding that it considers is required to discharge its functions.

By adding a specific duty to consult, amendment 650 elaborates on the proposed duty on the health and care professions regulatory bodies to consult such persons as they consider appropriate before establishing voluntary registers. Although the Government certainly agree with the principle behind the amendments—that the views of relevant regulated professionals should be taken into account on matters regarding the funding of the authority—I will explain why we do not believe that the amendments are necessary and why, if the hon. Lady presses them to Division, we will oppose them.

As a first step in the levy-setting process, the authority will be required to make a proposal to the Privy Council on the funding that it considers it requires. Before doing so, it is required to consult with the regulatory bodies. However, nothing in the clause prevents the authority from consulting more widely on its funding proposals to the Privy Council. The authority will have the power to consult the public and regulated professionals on its proposals under its existing powers to do anything that it considers necessary or expedient in connection with the performance of its functions. The Government’s view is that it should be for the authority, as an independent statutory body, to determine with whom it should consult, other than the regulatory bodies. For that reason we oppose the amendment.

We also oppose amendment 650, which is entirely unnecessary as clause 212 already imposes a duty on the regulatory bodies to consult appropriate persons before establishing a voluntary register. Representatives of persons eligible for inclusion on a proposed new voluntary register would undoubtedly be considered appropriate persons to consult by the regulatory bodies. As it would not strengthen the duty on the regulatory bodies to consult appropriate persons before establishing a voluntary register, I urge the hon. Lady to withdraw the amendment. The provision she is attempting to probe and, I hope, improve is already dealt with in the Bill.

Emily Thornberry (Labour, Islington South and Finsbury)

Having heard what the Minister says, I beg to ask leave to withdraw the amendment.

Clause 212

Emily Thornberry (Labour, Islington South and Finsbury)

I beg to move amendment 655, in clause 212, page 182, line 36, at end insert—

‘(2A) Subsection (2) does not apply to professions regulated under the Medical Act 1983.’.

The amendment arises from concerns expressed by the British Medical Association. It is designed to remove medical students from the provisions of the clause, which allow regulatory bodies to establish voluntary registers for health care students and unregulated health professionals. Clauses 212 and 213 take forward the Government’s intentions as outlined in the Command Paper, “Enabling Excellence: Autonomy and Accountability for Healthcare Workers, Social Workers and Social Care Workers”, which was issued by the Department of Health in February 2011. It set out the Government’s plans to introduce a system of assured voluntary registration to be developed for professionals and occupational groups, as well as certain students, who are currently not subject to statutory professional regulation. So far, so good.

The assurance on the equality of the voluntary register will come through the accreditation by the Council for Healthcare Regulatory Excellence, to be renamed the Professional Standards Authority for Health and Social Care. The amendment is intended to remove medical students from the list of professions for which voluntary registrations of students may be kept. Unlike students in other health care professions that the Bill seeks to regulate, medical students do not practise medicine. As undergraduates, they do not meet the requirements for entry to the statutory General Medical Council register, which is the requirement for anyone who wishes to practise medicine in this country. There is therefore no public risk that makes a compelling case for a register of medical students.

Furthermore, introducing an accredited voluntary register for medical students in addition to the statutory register of all doctors has the potential to increase public risk by confusing the public about who is entitled to practise medicine. In the worst-case scenario, being on a voluntary register could offer someone the opportunity to misrepresent themselves to the public, deliberately or otherwise, as being qualified to practise medicine. There is concern that it would be inappropriate for medical students to be on the register and that they are an exception to the usual need to register students. Although there is sympathy for the idea that students should be registered, it is inappropriate for medical students in the circumstances. For those reasons, we have tabled the amendment.

Jimmy Hood (Labour, Lanark and Hamilton East)

Before I call the Minister to respond, I should say that I have had a request to suspend the Committee for five minutes, which I have agreed to. The Committee will reconvene at 12.25 pm.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Amendment 655 aims to prevent the health and care professions regulatory bodies having the power to establish and maintain a voluntary register for persons studying to become members of professions regulated under the Medical Act 1983. Although the amendment’s drafting is not sufficiently clear to ensure that it would have its intended effect, in practice it would mean that the General Medical Council would be unable to establish and maintain a voluntary register of medical students.

Let me set out the reasons why we do not believe the amendment should be supported. I understand that the GMC has welcomed the inclusion of an enabling power to establish and maintain voluntary registers, and it is likely to consider the matter later this year. To be clear, the provision is enabling; no regulatory body would be compelled to establish a voluntary register under the clause. The Government view is that there is no reason to deny the GMC the same opportunities to establish voluntary registers as are afforded to other regulatory bodies. We want to establish parity of treatment between regulators in the Bill. It will be for the GMC to decide whether, and if so how, to exercise the powers the Bill grants.

We have already touched upon this and we will discuss it again later, but I stress that in making use of such powers, the GMC would have to consult appropriate parties and individuals, and it would have to conduct and publish an impact assessment. For those reasons I urge the hon. Lady, who I hope is reassured, to withdraw the amendment. If she does not then I urge my hon. Friends to oppose it.

Emily Thornberry (Labour, Islington South and Finsbury)

I beg to ask leave to withdraw the amendment.

Emily Thornberry (Labour, Islington South and Finsbury)

I beg to move amendment 546, in clause 212, page 185, line 16, at end insert—

‘(6) An assessment under this section must have particular regard to the level of engagement with patients and the level of potential harm posed to patients of each health profession under consideration.

(7) If, following the impact assessment, the regulatory body identifies that statutory regulation is more proportionate to the level of risk posed to users of health care, users of social care in England and users of social work services in England by a certain group of health or social care professionals, then there will be a duty on the Secretary of State to introduce statutory regulation for such groups.’.

Clause 212 is about the establishment of voluntary registers. I intend to speak more generally in the stand part debate about such registers, how appropriate it is for employees of the NHS or in social care to be on a purely voluntary register, and whether we should go further than that in the modern age. In amendment 546, however, I focus on concerns that have been raised by physiologists, and the amendment speaks for itself.

The main purpose of clause 212 is to introduce new powers for the Council for Healthcare Regulatory Excellence, which will be renamed the Professional Standards Authority for Health and Social Care, to set standards for voluntary registers and for quality assuring them. The Department of Health claims that voluntary registers will encourage the development of professional conduct and ethical practice. They will also set high standards of performance in groups providing services associated with or affiliated to the delivery of health and social care, where statutory regulation is deemed not necessary to protect the public.

New section 25F of the National Health Service Reform and Health Care Professions Act 2002, which is inserted by clause 212, imposes a duty on each regulatory body to carry out an impact assessment before establishing a voluntary register under new section 25D of that Act. It provides that the regulatory body must consider in particular the likely impact on potential registrants, the employees of potential registrants and users of health care, English social care and English social work services. It also states that the body must publish its impact assessment and that it must have regard to the impact assessment in deciding whether to establish a voluntary register.

A duty is therefore placed on the Professional Standards Authority for Health and Social Care and other regulators specifically to take into consideration the risk to patient safety proposed by the various health care professions and whether, following such an assessment, voluntary regulation is deemed sufficient in protecting patient safety. A duty is put on the Secretary of State to take forward statutory regulation where the regulator’s impact assessment ruled out voluntary regulation.

There is a risk to patient safety. Where patients are put at high risk, because of the sensitive nature of certain health care professions, a voluntary register is simply not adequate to protect patient safety. There are clinical physiologists who develop and deliver a wide range of sensitive diagnostic and therapeutic procedures directly to patients in disciplines such as audiology, cardiology, gastrointestinal physiology, neurophysiology and respiratory physiology.

I was thinking about that in advance of the sitting today, Mr Hood, and I wondered whether I should make a confession to the Committee. [Hon. Members: “Go on!”] Actually, I should. I am one of those who have been asked to swallow a camera, and, when I have met clinical physiologists in the past, I thought that they were doctors. Many members of the public think that such people, who put cameras up them and down them and who run all kinds of horrible and intrusive tests, are doctors, but they are not. Furthermore, they are on a voluntary register only. That is quite extraordinary, and that is what the amendment is intended to address.

All clinical physiologists work independently, and while the overall standard of practice is high, there is a high level of risk posed to patients due to the close one-to-one work that is often undertaken in sensitive situations. A statutory system is much better placed to safeguard patient safety, because only clinical physiologists who are registered with the relevant statutory regulatory authority would legally be eligible to practise. The provision would make it easy for the public to determine who is a properly qualified practitioner and would give the relevant professional body the power to determine who is eligible to practise.

The measure is also in line with the recommendation from the Health Professions Council in 2004 that clinical physiologists should be included in its regulatory regime, and the Secretary of State subsequently accepted that recommendation. In other words, physiologists have been waiting a long time to be put on a compulsory register. They thought that it was coming; they were working with the Department of Health to make it happen; but it seems to have been snatched from their grasp at the last moment once again. The amendment is intended to address that. It seems only fair, not only for physiologists, but for the public that that is changed, and we should ensure that some form of risk assessment is done before deciding whether there is a voluntary register. I am not stating that, at the moment, there is any risk to the public, but given the changes that are happening and the fracturing of the health service that is an obvious consequence of those changes, there may be an increased risk to the public. Frankly, the amendment is something that good sense dictates should happen.

There are shortcomings to voluntary registration. The CHRE scheme is intended to focus on the promotion of good quality care, rather than on the avoidance of harm. That suggests that the voluntary scheme is therefore only adequate for those health professionals who do not pose a significant risk to patients when not doing their job properly. The system is clearly designed for professions where people do not undertake risky, sensitive procedures, which is highlighted by the fact that entry to the scheme is not dependent on the level of harm posed to patients. Although the voluntary scheme may not be deemed to be problematic for those health professionals who are not a high risk to patients—those involved in diagnosing and treating patients, or those involved in the close, one-to-one work that clinical physiologists undertake, which often involves sensitive situations—it is insufficient for certain professions where patient safety is a concern.

The voluntary registration scheme will not provide an adequate safeguard. Therefore, when deciding whether the scheme should be inclusive and encompass a broad range of occupations, or whether it should be exclusive, serving a defined minority, the CHRE should give a great deal of thought to the protection that can be offered to patients by the voluntary scheme. It should measure adequately the specific health occupations that are best suited to a voluntary system of regulation, based on the level of engagement with patients and the level of harm posed to them.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I will start by ensuring that, in the record of our proceedings, it is clear that we do not propose the deregulation of any currently regulated groups. It is important to say that at the beginning of this debate, because there may be a misunderstanding that, in some way, there is hidden intent. There is not, and I want to make that point clear. I am sure that the hon. Lady welcomes that.

Emily Thornberry (Labour, Islington South and Finsbury)

The point of concern particularly relates to physiologists, who have been working towards a compulsory system of registration for, I believe, more than 10 years. They thought that they were getting there, but instead of having a compulsory system of registration, the Bill shows that there will continue to be a voluntary register. Given that their work becomes increasingly intrusive, personal and developed as a body of work, it seems to us that there is an increasingly strong case for physiologists to be on a compulsory register. There are those people who, over the years, ought to have been on such a register. They have been moving towards it, and the shame of the Bill is that it is a slap in the face to them.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I am grateful for that clarification. It was possible to construct a wider concern out of the hon. Lady’s remarks introducing her amendment, so I wanted to ensure that our intentions were on the record up front.

Let me deal directly with the secret that she shared with the Committee—we were looking forward to a better secret, but none the less, I appreciate her candour. We expect any decision on extending compulsory statutory regulation to a profession, including clinical physiologists, to be the subject of a solid body of evidence demonstrating the benefits of compulsory statutory regulation, on the basis that mitigating a public safety risk outweighs the potential costs across the system. That is why the clause provides for requirements for consultation with affected groups, and why it also requires an impact assessment. Such issues will be addressed through the process that we are putting in place, in a way that hitherto has not been the case.

Although the Government agree with the hon. Lady that the risks to patients or service users should be considered as part of the impact assessment, we do not accept the amendment for two reasons. First, the clause, as drafted, already imposes a duty on a relevant regulatory body to perform an impact assessment before establishing a voluntary register, and it requires the regulator to have regard to that assessment when deciding whether to establish a voluntary register. That would ensure that the relevant regulatory body considers whether the costs of establishing and operating a voluntary register are justified by the benefits in terms of improved standards to workers, employers and, importantly, people who use the services. That would ensure that the relevant regulatory body considers whether the costs of establishing and operating a voluntary register are justified by the benefits in terms of improved standards to workers, employers and, importantly, people who use the services.

In assessing the benefits of establishing a new voluntary register, a relevant regulatory body would need to consider the risks that voluntary registration might help to mitigate in the context of other existing systems for assuring the standards of workers in health and social care.

Emily Thornberry (Labour, Islington South and Finsbury)

Surely, however, the point is that those who are up to a certain standard, and who do not mind being regulated and having their work inspected, will have no problem at all joining a voluntary register. It is those who might think twice about joining a voluntary register who are the ones we should be concerned about. When they carry out functions such as those carried out by physiologists, it is entirely sensible that they should be on a compulsory register.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

That is why I have also indicated that we are not ruling out at this point further compulsory statutory regulation of professional and occupational groups.

Emily Thornberry rose—

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Will the hon. Lady at least let me develop the point a tad further? I was going on to say that there is merit in providing for the possibility of voluntary registers in the Bill. She has focused on the medical profession and medical interventions of one sort or another, but the Bill also contains provisions to allow for voluntary registers in the care sector, and we may return to that. However, if it were found to be proportionate and appropriate to introduce such a register, one issue would be that care users and those who commission services would be having conversations about whether staff were, indeed, on a voluntary register. There are, therefore, other checks and balances in the overall system to drive certain behaviours.

Emily Thornberry (Labour, Islington South and Finsbury)

Physiologists, in particular, believe that a compulsory register has been ruled out for them—that is the point. Having put as many people as they can on a voluntary register for the time that they have, and having worked on the basis that they would get a compulsory register, they have been told at the last minute that they will not. That is a concern, which is why they have addressed the issue and why I have had conversations with them. I welcome the opportunity to raise the issue again with the Minister, because he should and, I am sure, will re-examine it. Perhaps we will see some improvements to this corner of the Bill at another point.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The point has been made, and I will take it away. I am sure, as the hon. Lady has said, that we will come back to it at a later stage.

Let me come to the second reason why we oppose the amendment, which relates to the proposal to remove responsibility from the Secretary of State for a decision to extend compulsory statutory regulation to new groups of workers. That would effectively fetter the Secretary of State’s discretion, which is entirely inappropriate. It is for the Secretary of State, who is, in turn, directly accountable to Parliament, to consider whether compulsory statutory regulation should be proposed to Parliament for any new group of workers.

In making such decisions, the Secretary of State cannot be bound by the outcomes of a single impact assessment performed by a single regulatory body. The Secretary of State may wish to take account of the views of a wider range of individuals or of other policy factors, such as the costs to that part of the economy, Government resources or the impact that over-regulation might have on economic growth more generally. Such a provision would also create a potential conflict of interests for the relevant health profession’s regulatory body, given that it could be argued in some cases that that body had an interest in extending compulsory statutory regulation, because that would generate income for it.

For those reasons, and because of an express duty on regulators to assess risk in their impact assessments, it is unnecessary to include the amendment and urge the hon. Lady to withdraw it.

Emily Thornberry (Labour, Islington South and Finsbury)

I have listened to what the Minister has said, and I suspect that we will revisit this issue, but I will not push it to a vote now. I beg to ask leave to withdraw the amendment.

Emily Thornberry (Labour, Islington South and Finsbury)

I would like to widen the debate on voluntary registers a little and touch again on a point that I raised momentarily in the debate on the previous amendment. How appropriate is it for there to be only voluntary registers of people who we expect to fulfil some of the most intimate tasks?

There is some concern about this issue. There is a suggestion that those who are the most professional, reliable and confident in their abilities will have no problem with going on to a voluntary register and that it is the others about whom we are concerned. The concern is how we will regulate those whom we do not even necessarily know about, particularly in relation to social care, given how fractured the service has become, the development of personal budgets and so on. The number of people working in social care increases, but they do not necessarily stay there for very long—it is the Cinderella end of the business. People are not necessarily very well trained, and they may not have a great deal of experience. The level of management is sometimes not always what it should be, yet we expect those women—largely women—to fulfil some of the most personal tasks on the most vulnerable, at the most vulnerable stage of their life. I would strongly argue that there is a very strong case for ensuring that all those who fulfil a role within social care should be on a register, so that we know who is fulfilling those tasks, and that if they are not on a register, they simply cannot do that job.

There needs to be some form of regulation. The Minister might not like that as an argument, but I would like to know what other form of regulation is available if we are not going to have everyone on a compulsory register. It may be that the Minister will say that the Care Quality Commission can play a role, and that an old people’s home would not be accredited by it if the staff were not on a register. It may be that that is part of the Minister’s argument. As I understand it, however, not everyone who works in a home needs to be on the voluntary register, and I seek the assurance of the Minister that they will be.

How will this work? The Government have expressed their intentions on regulated health and social care workers joining the voluntary registers, which will be overseen by the Health and Care Professions Council. I have already spoken in relation to the case of physiologists, but there are number of other health professionals who also want compulsory registration in order to have some pride in the work that they do, so that not anyone and everyone can just roll of the street and claim that they share the professionalism of those who have worked in one particular area of care for many years. I have spoken to many people who are on compulsory registers at the moment. They work with other colleagues in the health service who are not on compulsory registers, and they feel that their colleagues do not have sufficient recognition as a result of not being on a compulsory register.

The Government are going in completely the wrong direction. Instead of increasing the registration of people working in the health service and in social care, increasing the recognition of the professionalism of those people and focusing policy to ensure that we raise standards of care, they are moving towards voluntary registration and are not pushing for compulsory registration, which, as I understand it, was the policy push until recently. That seems counter-intuitive and it is of concern, particularly when it is embedded in the Bill that will definitely—there is no argument about it—lead to a fracturing of the health service. We will, as I understand it, be getting more providers—we will be getting a wider choice. In those circumstances, if there is going to be wider choice, we wish to have a wider of choice of good quality. In the end, quality of care comes from the quality of staff and ensuring that we are properly able to regulate our staff and not simply employ anyone and everyone in the health service and in social care without proper controls. That is a self-evident truth. [Interruption.] The Minister titters. I am surprised: perhaps he is not tittering; perhaps he is simply expiring in front of us.

I would be grateful if the Minister were to put on the record his response to concerns expressed by the UK Council for Psychotherapy that the Bill allows statutory regulators to establish voluntary registers in competition with existing professional voluntary registers. In other words, the UK Council for Psychotherapy already has a voluntary register. Is it likely that the legislation will result in another register being established in competition with that, which will also be a voluntary register? Will the Minister explain how that will work?

I also want to raise concerns about the approach to social care workers, which I have mentioned in earlier debates. It is right to pray in aid that the Governments in Scotland and Northern Ireland are moving towards a mandatory system of registration for those involved in social care. The experience in Wales, where there was a voluntary register of those involved in social care, shows that it simply did not work. Those involved with that register have said that it does not offer the clarity and simplicity that service users and carers require. As a result, the Welsh Government have also decided to close their voluntary registers and move towards a compulsory register. The rest of the UK is moving towards a compulsory register for care workers. Why is England being left behind? Will the Minister explain why there are particular circumstances in relation to England that mean we only have voluntary registers of those who perform the most intimate tasks? Why is it that other countries in the United Kingdom have a compulsory register?

In addition to adding confusion, voluntary registration is not going to drive up standards in social care. Skills in the care sector can be improved through compulsory registration or through requirements on the employer. I have asked the Minister if, instead of there being a compulsory register, any rules will be imposed on employers to ensure that those whom they employ are at least those on the register. Social care workers are in favour of mandatory regulation, but it is unfair on social care workers, who are on very low wages, to pay a fee when it is not mandatory and might not be a condition of their job. There may be voluntary registers, and the Minister may be allowing for social care workers to move on to a voluntary register, but if there is a fee and the people concerned are earning hardly anything and hardly making ends meet in, as I have said, this Cinderella end of the profession, are they even likely to join a voluntary register if they do not need to?

The public want us to professionalise social care and this aspect of work with the most vulnerable. If the Minister does not ensure that registration is compulsory within the legislation—as it is in Wales, Scotland and Northern Ireland for social care workers—what other levers, if he has any, is he going to use to ensure that there is a compulsory registration of those who look after our elderly and our most vulnerable? Why are the Government not listening to the views of workers and learning from the recent experience of the other Governments of the devolved countries in the United Kingdom?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

As we consider the hon. Lady’s various points, it is worth reflecting on what the past few years teaches us in terms of how one translates well-intentioned commitments into reality. When it comes to the regulation of various parts of the health and social care work force, the previous Government, of whom the hon. Lady was a supporter, were certainly full of good intentions. However, they had a tendency to over-promise and under-deliver when it came to getting regulation to take place. In fact, if all the commitments of the previous Administration to extend regulation to new groups of workers had been delivered on time or, indeed, at all, an additional 1.3 million workers, many of whom are in relatively low-paid support roles, would be obliged by law to pay registration fees. That is the very point that the hon. Lady has raised.

It is worth noting that in 2000 the NHS plan gave a commitment to the introduction of proposals for regulation of health support workers, which did not happen. In 2001, there was a reference to herbal medicine. In 2005, there was a reference to social care workers. In 2007, there were references to health care scientists and practitioners, psychologists, counsellors and so on. The previous Government entered into commitments for all those groups, but they did not follow through on them. It is one thing to come to this Committee and raise concerns about the introduction of voluntary assured registration. What we are trying to do and intend to do is to have a proportionate response to risk, to have a mechanism that can properly assess, in a transparent and open way, the level of that risk and to put in place, where it is appropriate, voluntary assured registers.

The hon. Lady also asked how that might sit in the context of other changes to the environment in which social care in particular is delivered. There are a number of relevant factors that she should take into account. She mentioned herself the role of the Care Quality Commission. It will shortly be consulting on a scheme for a new excellence rating in the social care sector. One possibility—the commission will consult on this as a matter for consideration—is that the excellence rating would include having regard to the fact that an organisation was employing staff who had been included on the voluntary assured register for social care workers.

Emily Thornberry (Labour, Islington South and Finsbury)

Do the Government therefore envisage that there will be old people’s homes that are not deemed excellent by the Care Quality Commission, where there will be people dealing with the most vulnerable who are not on any register?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I do not accept the proposition that the hon. Lady has put to me, because of course all care homes that are registered with the CQC can be registered to provide care only, if they meet the standards set out in the legislation that established the CQC on its current basis, which was passed by the Administration whom she supported. If she has concerns about those standards, they could have been addressed in the past. I do not share the concerns that she has tried to advance today.

Emily Thornberry (Labour, Islington South and Finsbury)

May I ask a more direct question? Perhaps I am just not asking my question sufficiently clearly. Is the Minister in favour of care homes providing services for the elderly and the vulnerable where there are staff who are not on any register? Would his legislation stop that if it were a possibility?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I find that question truly breathtaking, because in 2005 the previous Administration committed themselves to introducing changes but they never did. There was never a sense of urgency or drive, and the General Social Care Council did not deliver on that. If the hon. Lady now feels that to be an issue, why did not the Ministers who were responsible for it feel that it should have been addressed at that time?

We are moving from a situation in which there is no regulation whatever to a situation in which there will be assured, accredited voluntary registration of care workers in all settings. That is a change from the current arrangements, which we inherited from the previous Administration.

Emily Thornberry (Labour, Islington South and Finsbury)

As the Minister asked me a question, may I take the opportunity to say this to him? For anyone working in an old people’s home not to be on a register seems to me to be entirely wrong. If the Minister is using the Bill to develop levers that are made of foam and will do nothing and will not stop people who are not on a register working in old people’s homes, that is wrong. That is my opinion. This is a golden opportunity to put that wrong right. Never mind about the previous Government or whether the new Government should be building on the achievements of the previous Government. We are scrutinising this Bill now and a situation now in which elderly and vulnerable people may be being looked after by people who are not on any register. If that is correct and the Minister anticipates that it will continue under this legislation, it is his responsibility, I respectfully suggest, to ensure that he changes the Bill to stop it happening.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Before we broke for other business, we were discussing some important matters on the Government’s overall approach to the regulation of health and social care professionals and workers, and when it is appropriate to extend regulation to new groups.

We have made it clear that we will not rule out compulsory statutory regulation for any part of the work force when there is a compelling case for it on the basis of a public safety risk and when assured voluntary registers are not considered sufficient to manage the risk. It is important, however, that the costs and benefits of regulation are fully assessed and that a clear case can be made that compulsory statutory registration is proportionate before it is introduced.

Hon. Members, and the hon. Member for Islington South and Finsbury in particular, have expressed the view that social care workers should be subject to compulsory statutory regulation. I do not want to belittle the very real concerns she has raised about the poor quality of care in some parts—I emphasise that—of the care sector. Nor do I wish to dwell unnecessarily on the past, but I remind the Committee that in 2005 the previous Administration committed to regulating 250,000 home care workers and a further 500,000 residential care workers. By 2007, however, it became increasingly clear that the commitment to registering the entire work force had not been fully thought through and was not being implemented. The Government then clarified that their intention was to regulate home care, or domiciliary care, workers in the first instance.

Until July 2009, work was undertaken to enable a voluntary register for home care workers to be opened by the General Social Care Council by 2010. In 2009, however, the General Social Care Council discovered a backlog in its handling of conduct cases, and work on opening a register of home care workers was postponed until Ministers were confident that the General Social Care Council could deliver its existing functions.

That is effectively where we found things when we came into office. As the Committee knows, that backlog led to the commissioning of the report by the Council for Healthcare Regulatory Excellence, which has been mentioned several times in debates on this part of the Bill.

It is our view that voluntary registration should be encouraged for the adult social care work force. We will explore the scope for the Health and Care Professions Council to establish a voluntary register of social care workers in England by 2013. Although regulation of the health and social care work force is sometimes necessary, under the previous Administration there was a tendency for compulsory blanket statutory regulation of the health and social care work force in England to be seen as the first resort, rather than the last, in deciding how best to assure appropriate standards of care.

If all the previous Administration’s commitments to extend regulation to new groups of workers had been delivered, an additional 1.3 million workers, many of whom are in relatively low-paid support roles, would be obliged by law to pay registration fees to continue to pursue their livelihoods. It is our view that the assured voluntary route is a better route, and, more than that, we need to strengthen local responsibility for managing problems effectively and promptly.

The Government’s view is that there is a key role for employers and providers in ensuring high standards of service. That role must rest with local service providers. As the previous Government demonstrated, it is simply not possible effectively to manage the whole system from the centre.

The Government are clear that regulation of individual workers is not always the proportionate response given the wider safeguards in the system. Children’s services providers, for example, are regulated by Ofsted. Many providers of health and social care services in England must register with the Care Quality Commission and meet a set of 16 essential safety and quality requirements. People working in health and social care in England also fall within the scope of the vetting and barring system. In the NHS there are specific obligations on employers to undertake a range of pre-employment checks on workers, and primary care providers are subject to a range of statutory checks by virtue of the National Health Service (Performers Lists) Regulations 2004.

There is clearly a need to ensure that providers are held to account for the quality of the work force and that swift and effective action is taken by the Care Quality Commission when there is a breach of its standards. For those reasons, we seek a more proportionate approach that will enable a system of assured voluntary registration to be developed for unregulated workers, with the CHRE being the national accrediting body for registers of health care workers throughout the UK who are currently not regulated by statute, and for social care workers in England.

Our view is that a system of assured voluntary professional registration should be considered in the first instance as an alternative to statutory intervention to drive up the quality of service provision, and that full statutory regulation should be a last resort. However, we recognise that in exceptional cases assured voluntary professional registration will be considered insufficient to militate against the level of presenting risk; if the extension of compulsory statutory regulation is necessary, it will be taken forward by the Government.

At present, there is no external quality assurance to enable existing holders of voluntary registers to demonstrate that they set and enforce professional standards effectively. The Government therefore intend to establish the CHRE—under the Bill, it will be renamed the Professional Standards Authority for Health and Social Care—as the national accrediting body for voluntary registers for health care workers for the UK and for social care workers in England.

It is our intention that the authority will set standards against which the governance, procedures, registration criteria and performance of voluntary registers can be judged, to establish whether they are sufficient to provide assurance to the public and employers about the training, skills and conduct of their registrants. Through assured voluntary registration, we seek to improve service users’ experience of the system by driving up the quality of the work force. We will also ensure that voluntary registration systems accredited by the authority make appropriate links to the wider regulatory system and include appropriate policies on professional indemnity and safeguarding—including, when appropriate, procedures for making referrals to the Independent Safeguarding Authority, or Disclosure Scotland, if individuals are deemed to pose a risk to the public.

For all those reasons, I hope that I have reassured the Committee and that I have persuaded the hon. Member for Islington South and Finsbury that the clause should stand part. Indeed, I urge my colleagues to ensure that it does.

Emily Thornberry (Labour, Islington South and Finsbury)

I have listened carefully to the Minister, and I am not reassured. I still do not understand why Scotland and Northern Ireland should move towards a mandatory system of registration and why we are not learning from Wales. I found the Minister’s response extraordinarily complacent. I wish to put the clause to a vote.

Clause 215

Owen Smith (Labour, Pontypridd)

This is a short clause, but it is important and potentially interesting. It deals with the abolition of the Office of the Health Professions Adjudicator. One has to look hard to discover what OPHA is. It is not to be found in the Bill, nor in the explanatory notes or the impact assessment. That is, apart from one line in the table that refers to the £13 million saving that the Government anticipate making as a result of its abolition.

OHPA was a new body that was set up in the light of the inquiry into the activities of Harold Shipman, the GP. It came about as a result of the recommendations of the fifth report of the Shipman inquiry, in which Dame Janet Smith—now Lady Justice Smith—recommended that, to avoid the situation that was exposed by the Shipman case of the General Medical Council’s being perceived in her view to be judge, jury and prosecutor, we ought to move to one whereby there is a separation, as there ordinarily is under the law, between the police, the Crown Prosecution Service and the judge; in other words, between the independent adjudicator and the regulatory body. At that time, the GMC was unhappy and lobbied hard to have the independent body that was intended to oversee its work removed.

In December, at the conclusion of a short review and consultation on OHPA, the Government announced that it would be abolished. The rationale was twofold: first, the Government thought that the GMC had reformed its practices to make them more independent, although how it can be independent of itself is beyond me; and secondly, that costs would be saved, which is significant as the original start-up costs were anticipated to be £10 million. The consultation found that 45% of the respondents agreed that OHPA ought to be abolished, although it failed to point out that 55%, including 35% who were opposed to it outright and the rest who did not express an opinion or were undecided, were not in favour of its abolition. None the less, the Government decided to push ahead, suggesting in a written statement from the Under-Secretary of State for Health, the hon. Member for Guildford (Anne Milton) that the savings were worth while and that the GMC would be able to adjudicate independently and impartially.

At that time—again, this went unreported—the then chairman of OHPA said:

“OHPA offered genuinely independent adjudications, in a reformed system… Such a system would have assured the public that their protection from those who are not fit to practise medicine…was in the hands of a wholly independent tribunal. Given that this was a key recommendation of the Shipman Inquiry, it is regrettable that the Government has decided not to proceed with the OHPA programme.”

I will raise two issues that come out of that and ask the Minister two questions. The first is whether the Minister is entirely certain that the financial rationale, which seems from the consultation to be clearly the principal rationale for the abolition of OHPA, was adequately scrutinised. A submission from OHPA to the inquiry stated that £10 million would be saved every year as a result of rolling up into one adjudication body the adjudication hitherto conducted by the GMC, the General Optical Council and the relevant bodies for pharmacy and nursing. It thought that a united body would save £10 million, which was the cost of the initial set-up. Is the Minister convinced that the financial argument makes sense?

More importantly, OHPA’s submission concluded that, had it gone ahead and been maintained by the Government, it would have addressed the legitimate

“public concern and lack of legal soundness inherent in a system where the disciplinary body bringing the proceedings is also responsible for judicial decision-making”.

Is the Minister entirely certain and content that allowing the GMC to make adjudications on its members is the appropriate way forward? The GMC has submitted evidence to the Committee in which it supports the Government’s decision to scrap OHPA. Having already said that OHPA was not a good idea, such evidence should not be a great surprise to us. In its evidence it says that it has addressed the problem by introducing a degree of separation between the investigation and adjudication stages.

John Pugh (Liberal Democrat, Southport)

The hon. Gentleman is making a good case of sorts, but will he not recognise three points? First, some adjudication bodies are also disciplinary bodies. Secondly, the GMC has made substantial attempts to change itself with increased lay representation. Thirdly, and this is an empirical point, there are more cases and evidence of the GMC doing that—in other words, more people have been up before the GMC and treated fairly severely than hitherto. Some progress has been made, so the Government’s case that reforms are in place now and that the Shipman case could not easily be repeated is relatively valid is it not?

Owen Smith (Labour, Pontypridd)

I do not dispute that the GMC has clearly addressed the matter and was addressing it before OHPA was established. It may be accurate to say that the GMC is able to do this. It is certainly true that other bodies regulate themselves and prosecute their members in the event of their transgressing. However, the key point is that the Shipman inquiry did point to this as a key weakness in the adjudication and regulation of the medical fraternity in this country. We all remember the Shipman case—it was a particularly awful chapter in the history of medicine in this country. When Lady Justice Smith came to the previous Government with a firm recommendation that the split was a prerequisite of having an efficient and effective safeguard for patient interests and efficient policing of the medical fraternity, it was a pretty brave leap. To describe that in just six or eight lines of a Bill with 300 clauses probably does not pay due deference and respect to the magnitude of the issue.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I am grateful to the hon. Gentleman for giving us the opportunity to debate the clause and me the chance to address his concern that no impact assessment was done on the measure. An impact assessment was done but it was separate from the main one—

Owen Smith (Labour, Pontypridd)

I did not say that.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I will reread Hansard and I apologise to him if it turns out that he did not say that. My understanding of what he said is that no separate impact assessment was done and that there was a single line reference, which was a saving, in the main impact assessment.

Owen Smith (Labour, Pontypridd)

For this Bill.

Jimmy Hood (Labour, Lanark and Hamilton East)

Order. The rule of the game in this Committee is that the person who is on their feet is speaking and the other Members are listening. If any Member wants to intervene, they can do so, but they cannot have a conversation over the Committee.

Owen Smith (Labour, Pontypridd)

May I intervene?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I give way to the hon. Gentleman.

Owen Smith (Labour, Pontypridd)

I am grateful to you, Mr Hood, and to the Minister for allowing me to intervene. What I said was that in the impact assessment for the Bill, there is no mention of the measure, save for the line in the table. An impact assessment was conducted as part of the Government’s consultation and subsequent report, but it, as I suggested, did not reflect the volume of savings that might have resulted from the introduction of the measure.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

We have established that an impact assessment was done for the Bill, in which there is a passing reference; there is then a 23-page impact assessment that deals solely with the issue, which is available on the Department of Health website. I commend other hon. Members to read it—the hon. Gentleman has clearly made such a study of it. I will try to answer his questions and offer him the assurances that he seeks.

In presenting his concern, the one thing that the hon. Gentleman has overlooked is a change the Bill makes that provides for a new responsibility for the Council for Healthcare Regulatory Excellence, whose name and some of whose functions we are changing. We touched on one of its new functions this morning, when we discussed social care and fitness to practise. The council in its new role will have the function of also being able to refer cases to the High Court if it believes that the decision made by a regulatory body after a fitness-to-practise hearing was unduly lenient. That provides an important new safeguard in the system that is independent of the individual regulator. It is not true to suggest, as the hon. Gentleman did, that the removal by the Bill of a body that has never been set up—OHPA was in the process of being established when we came into office—in some way weakens the arrangements.

Owen Smith (Labour, Pontypridd)

Does the Minister not accept that there is a fundamental difference between a body that is separate from the GMC, and which conducts the adjudication and judges the cases that are brought before it, and another council that may, post hoc, review a decision taken by the GMC and refer it to a higher court?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

They are different but I think they achieve an important purpose, which is the safeguard that the hon. Gentleman seeks. They ensure that a matter is not solely in the purview of the regulator and that there is another opportunity to look at it. If there are serious concerns, the Council for Healthcare Regulatory Excellence can refer it to the courts.

I need to make a quick correction. I said that this was a new provision in the Bill. In fact, it is an existing power—the safeguard is already there, which we think is important in terms of understanding the arrangements.

The Office of the Health Professions Adjudicator has never been operationally activated. It was established in law in January 2010 and it was not expected to take over its duties from the GMC until April this year. The functions that OHPA was expected to perform will therefore remain with the GMC, the General Optical Council and other regulatory bodies. However, as my hon. Friend the Member for Southport said, there has been quite a significant change in the way that those organisations configure themselves, the involvement of lay members, and so on.

To the question about the legitimate public interest and patient safety, and whether doctors protect doctors and perhaps not the public interest, the answer is clearly no. There is no evidence to suggest that the current GMC-led adjudication arrangements do not properly protect the public. The Council for Healthcare Regulatory Excellence reviews all decisions made by the GMC adjudication panels to assess that, and if it feels there was undue leniency, it can refer the matter, as I said.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

Does the Minister agree that aside from the important strengthening of the lay representation on the GMC, there is also a requirement now for two doctors to sign the forms before someone can be cremated? That allows either doctor to refer to a coroner, which is an important safeguard against one of them behaving inappropriately.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I am grateful to my hon. Friend for highlighting that change, which came out of the Shipman inquiry. It is an important safeguard to have in the system.

The hon. Gentleman also asked about the consultation. It is worth bearing in mind that the Government consulted on options for the office to continue in its current form, for changes to be made to it, or for it to be abolished. The responses to that consultation show that 45% of people said yes to abolition, 35% said no, 4% were unsure, 3% did not answer the question and 13% had no clear preference. Governments have make a judgment based on consultation results; we took the view that, on balance, the decision, with the safeguards that I have mentioned, was the right one to take.

The hon. Gentleman suggested that the measure might be being driven by an agenda of short-term savings. I can assure him that that is not the reason: neither I nor the Government would have accepted that as the rationale for making the change. However, the Government are committed to spending taxpayers’ money well and wisely. Setting up the Office of the Health Professions Adjudicator would have cost between £10 million and £16 million to replicate functions already undertaken by the GMC. We took the view that that was not proportionate.

Derek Twigg (Labour, Halton)

Could the Minister give us a further breakdown of those respondents who were in favour of abolition?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The figure I quoted was 45%.

Derek Twigg (Labour, Halton)

Of what did that figure comprise?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I shall make sure the hon. Gentleman receives a note containing that information in due course. That is probably the best thing to do, rather than try to rattle off each organisation that responded and state whether they said yes or no.

I was about to deal with worry expressed by the hon. Member for Pontypridd about patient safety and adjudication decisions, and whether they are, for example, compliant with the Human Rights Act 1998. There is no evidence to suggest that the system of adjudication operated by the GMC and other regulators is not compliant with the Human Rights Act, and case law confirms that the system of adjudication and fitness-to-practise arrangements used by health regulators, which includes a right of appeal to the High Court, does not breach that duty.

Kevin Barron (Labour, Rother Valley)

As the Minister might know, I spent nine years as a lay member of the General Medical Council and was involved in both of the governance changes that got it into a shape where there is practically equality in lay membership of the council itself and, indeed, of fitness-to-practise committees. The GMC is not arguing against the change on adjudication except in one area—members of council were in the House at a reception yesterday, and I talked to them. In the area in question, the council took its foot off the pedal. There is a need to change the law to enable it to take action sooner, particularly on doctors who have been convicted of serious offences, but who still have to be heard under current legislation. The law will have to be changed to allow that. Is the Minister willing to meet the General Medical Council and to discuss in some detail the changes that will be needed, if it is to retain that responsibility?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Yes, absolutely. That goes without saying, but I am grateful for the opportunity to put it on the record that I or other Ministers will be only too happy to have those discussions to make sure that the system, as we believe it will be, is fit for purpose and offers all the assurances that members of the Committee have been seeking.

With that, unless the hon. Member for Pontypridd, who looks as though he wants to get up again to conclude the debate, I urge that the clause stands part of the Bill. However, I hope that the arrangements made for the Council on Healthcare Regulatory Excellence and the other changes we propose, guided by the consultations, provide the assurances that he seeks.

Owen Smith (Labour, Pontypridd)

I listened carefully to what the Minister said. He said that cost did not drive the decision, but I urge him and other hon. Members to read the Government’s consultation response, which places front and centre the principal rationale for the change as the savings that could be derived and then goes on to refer to the submissions made by various others.

Secondly, what is proposed is not the same as having an independent adjudicator separate from the regulator and the investigating body, as was proposed by Dame Janet Smith, now Lady Justice Smith. That is a very different scenario and governance structure, and I do not believe that what is proposed under the Bill does anything than return us to the status quo ante, albeit perhaps with a slightly changed GMC. The basic point about the requisite safeguards not necessarily being in place if the GMC is acting as judge, jury and prosecutor therefore remains.

Finally, on reading the impact assessment and the Government’s response, I was surprised to find that the submissions made by the individuals and institutions that responded were not published. They were summarised in one page. I therefore ask the Minister to offer us greater reassurance than is provided by detailing who was in favour and who was not. He should publish the submissions, so that we can read in detail who exactly thought the measure was a good idea. After Shipman, Opposition Members do not think that what the Government propose is a good idea.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I shall certainly look into publication. I know that in some consultations participants are asked whether they do or do not wish to have their responses published. Without checking, I do not know the position for certain.

On the question of the GMC acting as judge, jury and prosecutor, the council is looking at how it can enhance the independence of its adjudication and the efficiency of its processes—the processes that it currently operates. It is looking to see how it can go further. The GMC proposes to establish a tribunal-style model of hearings, which will be overseen by a separately appointed president. The objective is a robust, fair and effective system of adjudication for doctors, so the policy question is whether the objective can be achieved without a separate body undertaking adjudication. We think that it can be, which is why we set that case out in the impact assessment.

Regarding the question about full consultation, a summary of responses was published on the website and I will certainly look to publish the details, having checked and satisfied myself that they are all areas where we have permission to do so.

Schedule 14

Clause 217

Liz Kendall (Labour, Leicester West)

I beg to move amendment 665, in clause 217, page 189, line 16, leave out ‘desirability of promoting’ and insert ‘Commissioning Board’s duty to promote’.

Part 8 sets out the Government’s proposed changes to NICE—the National Institute for Health and Care Excellence, as it will be known—which give rise to a huge number of concerns. The fundamental reason why NICE was established was to take decisions on which drugs should or should not be available on the NHS. That responsibility will transfer to general practitioners. There is a huge range of concerns about that, which I shall discuss on clause stand part.

Clause 217 sets out NICE’s general duties. Subsection (1)(c) specifies that one such duty is

“the desirability of promoting innovation”.

Hon. Members may remember our discussions a mere few weeks ago—it may seem longer—about the NHS commissioning board arrangements in part 1, which give the board a clear duty to promote innovation. Under new section 13H of the National Health Service Act 2006, inserted by clause 19:

“The Board must, in the exercise of its functions, promote innovation in the provision of health services”.

Amendment 665 seeks to give NICE a stronger and clearer role in promoting innovation by giving it an essential duty to support the board in its role to do so.

I want the Minister to set out, because it is not entirely clear in the Bill, how NICE will promote innovation as part of its work in two key areas: first, in the production of its quality standards, in which it will set out the very best quality across health and social care; and secondly, in assessing new drugs and technology under the Government’s new value-based pricing?

Nicky Morgan (Conservative, Loughborough)

I shall speak briefly about what the hon. Lady mentioned—the desirability of promoting innovation. I shall illustrate my point with an example from my constituency.

I recently visited a company called Dialog Devices, which is based at Loughborough university. It has developed a machine called a Padd, which ensures a non-invasive assessment of peripheral arterial disease to prevent heart disease and stroke. I am not asking the Minister to comment specifically on that; we have all realised during the course of our discussions that commenting on specific examples is not a good use of our time. However, the point that the company made was that the NHS is not only a provider, as we have discussed over a number of weeks, but a promoter of innovation—and it is, in fact, a consumer. If we want the NHS to achieve savings as part of the Nicholson challenge, embracing new medical technology and innovation will play an important part.

The chief executive of Dialog Devices told me that if the NHS does not invest in new and innovative products, its products go to the United States, where research programmes and money are available. Although the company has recently been given money to start clinical trials, it does not have any money for marketing and going out to GPs to talk to them about new products.

The reason why I have a problem with the hon. Lady’s amendment is that innovation needs to run right the way through the NHS. It is not for only the board or NICE; it should be for all levels, including GPs, who need to embrace new medical technologies, too. I hope that the Minister will confirm that the Government’s clear view is that it is essential for the NHS to embrace innovative products. Doing so would make it a world-leading health service for all medical conditions, and make it more efficient in meeting needs, given the economic legacy that we have been left by the previous Government.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

There is unanimity of opinion about the desirability for and necessity of the benefits of innovation, and the importance of promoting it in the NHS. My hon. Friend is right that such innovation should run right through the health service.

It is worth sharing with the Committee the fact that the NHS chief executive has been asked to make a report by November this year, working in consultation with industry, academia and other interested parties to look at how the adoption and diffusion of innovations can be accelerated across the NHS. That report will inform the strategic approach to innovation in the modernised NHS put in place by the Bill.

I think there is agreement on the aim of driving innovation within the NHS, but the hon. Member for Leicester West is concerned about how the provision is formulated in respect of NICE. Although the intention is clear, the wording of the amendment would not have the desired effect. I will try to explain why and reassure the hon. Lady about what I think is our shared purpose. The amendment appears to be based on a misreading of the Bill, which I am sure was not the intention, and I believe the issue has been raised previously by the Association of British Healthcare Industries. I will take this opportunity to clarify the situation and offer some assurances.

Clause 217 does not place a duty on NICE to consider whether innovation is desirable. Instead, it does something a lot stronger and places an explicit duty on NICE to have regard to the promotion of innovation, which is itself established as desirable, when carrying out its work. If the amendment were accepted, it would have the unintended consequence of restricting NICE’s duty in relation to innovation and the scope of the NHS commissioning board’s duty to promote innovation. NICE’s remit, as set out in the Bill, is broader than just NHS services. The Bill retains the remit that NICE was originally given in 2005 for public health, and extends its remit further to cover social care. Public health and social care would not normally be the responsibility of the NHS commissioning board, and it would be excluded from the duty if the legislation were constructed in that way.

Grahame Morris (Labour, Easington)

Will the Minister clarify the point about the desirability of innovation and restricting the role of NICE? Is it envisaged that NICE would advise pharmaceutical companies, for example, on some issues? Would that be a potential conflict of interest?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The hon. Gentleman seeks to lead me down a tempting path, but if I go down it I will probably find myself in the hall of mirrors into which the Opposition regularly try to take us. I am not going to do that as it would probably be outside the scope of the clause.

Let me reassure the hon. Gentleman that the clause places an explicit duty on NICE to have regard to the promotion of innovation, which is established as desirable when carrying out its work. It is necessarily constructed in that way so as to include the full range of its remit, which comprises social care, health care and public health. The amendment would have the undesirable effect of narrowing that remit to the health system and excluding everything else. It would have a strange effect, which I hope I have explained to the satisfaction of members of the Committee.

It is our intention for NICE, along with other parts of the new architecture put in place by the Bill, to contribute in many ways to driving an agenda that promotes the greater use of innovation within public health, social care and the health service. Quality standards will be reviewed by NICE at regular intervals to take new developments and innovations into account. Again, that clearly links across. In terms of promoting innovation and assessing new drugs, with value-based pricing we will look to link more closely the price of a medicine to the value that it offers—taking into account aspects of the value, including therapeutic innovation and improvement.

I hope I have been able to reassure the hon. Member for Leicester West and persuade her that the amendment would not achieve what she wants. As currently drafted, the clause goes where she wants it to go, so I hope she will withdraw the amendment.

Liz Kendall (Labour, Leicester West)

I will respond to the Minister’s points, particularly the last point about value-based pricing that will specifically take into account the degree to which a new drug is considered to be innovative; in other words, a premium will be applied in some way if a drug is particularly innovative. I definitely do not want to stray outside the scope of the amendment, but one of the reasons why I tabled it was to probe how much value-based pricing will seek to promote innovation.

All I would say is that if more is paid for a drug because it is innovative, that will have a cost effect elsewhere; in other words, if more is paid for some drugs because they are seen to be particularly innovative, they meet previously unmet needs or they have wider societal benefits, it will cut a bit of the cake away from care elsewhere. These are not cost-free decisions. When one pays more for particular drugs, trade-offs will need to be made. I believe that innovation is important, but it has to be weighed against other issues, as I am sure the Minister knows.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Innovation can also lead to a more efficient use of resources. It is not a black and white issue, but a judgment in each case.

Liz Kendall (Labour, Leicester West)

I absolutely agree with that, but, as I shall come on to say in a little while, these are very difficult issues. We have one pot of money, and balancing the different objectives is a huge challenge. This was a probing amendment to try to assess the degree to which NICE will promote innovation. On that point, I beg to ask leave to withdraw the amendment.

John Pugh (Liberal Democrat, Southport)

The clause is about the general duties of NICE, which have been an issue of appreciable public interest. I read it with some interest, hoping that the legislation would say what the general duties of NICE were. I read it several times, turned the book upside down, read it backwards and so on, but the clause does not actually do that. For once, the explanatory note is slightly more helpful. It states:

“This clause describes the matters that NICE must have regard to in developing its products”—

“products” is a strange word—and then gives a list of its current products, which include

“guidance on new and existing medicines,”

which is, of course, the familiar role of NICE, and other new roles that it has taken on such as

“guidance on treating and caring for people with specific diseases…and guidance on preventing ill health.”

We can add to that public health and other things as well.

I have two concerns that I hope the Minister will succeed in allaying. The first is about mission creep. I brought this up with the chairman of NICE at a meeting organised by an all-party group the other day. NICE started off, fundamentally, as an organisation for examining drugs on a value-for-money basis. Then it branched further afield into physical and psychological therapies and now will take on social care, public health and who knows what else.

That raises a competence issue, because those of us who know anything at all about the NICE drug approval process will know that it sets a high standard of rigour—I have attended meetings at which NICE has actually been doing its stuff in committee—and has been very impressive. The process has often been slow, but it has been rigorous. Around the table are not only people who are expert on the drug but expert practitioners in the field and also patients who provide input. That led to a slightly bogus, quasi-mathematical process where things such as qualys—quality adjusted life years—were analysed. When a thing had enough qualys, the drug was considered to be value for money.

I was always a bit sceptical about that as a device for ensuring that a drug was suitable for widespread use in the NHS, but it has to be said that the process was diligent. There were all sorts of flaws: it was often slow, it was contentious at times, and it did not really differentiate between drugs that were universally of benefit to all patients with a condition, and drugs—such as Aricept, for example—which sometimes worked for some patients but not for others. So there were critics, and I am sure that every MP in the previous Parliament at some time or other would have written to their primary care trust about some judgment of NICE simply because a patient in their constituency had raised an issue about the non-availability of a particular drug.

However, with all its flaws, it has to be said that the people who were doing that specific job were clearly the best people one could pick to do it, even though they could not do it to everyone’s satisfaction. That was reflected in the fact that NICE, in that role, became internationally respected. Many people looked to the NICE model as the kind of thing that they should adopt in their own country.

When I use the expression “mission creep”, my concern is that NICE might go the same way as the Audit Commission. At one time, the Audit Commission had a good reputation as a decent set of accountants and bean counters, who told local authorities when they were going to over-spend. Then it started to branch into social care, talking about how local authorities should be politically run—all that kind of thing, as well.

To some extent, the Audit Commission devalued its currency, because it was clearly commenting on areas where it was not expert. It is clearly not the intention of the Government to have a body that cannot comment as an expert body; to perform its range of functions, that body is going to need a heck of a lot of experts. There will be other experts in the field doing similar jobs who will have a view that may differ, and therefore its authority may be questioned. Will the Minister assure me that we are not going in that direction?

My specific questions take us back to the fundamental gatekeeper role of NICE. Essentially, what was not approved by NICE, what did not pass the various quality tests, the NHS did not have to fund. It could choose to fund; individual PCTs certainly did fund things that were not NICE-approved. However, there was the function of a NICE judgment.

A NICE judgment meant that no person could go to their PCT with the absolute assurance that the PCT would regard that as the appropriate value-for-money therapy for their ailment. When deciding whether an individual patient should get a drug—maybe because the patient had seen on the internet that the drug might be good for them or the pharmacist had persuaded them that the drug was the magic bullet to solve their problem—there was some good reason to say, “You can’t have this particular drug, or it would be inadvisable to have it.” That may not have been an overwhelming reason; it may have been contested.

Grahame Morris (Labour, Easington)

On that specific point of assessment of treatments, was the whole rationale of the establishment of NICE not to address the issue of the postcode lottery—drugs and therapies being available in one part of the country and not another? Will these changes not turn the clock back and make that situation more likely?

John Pugh (Liberal Democrat, Southport)

It did not altogether address the issue of the postcode lottery. In my own area, people came to see me saying that a drug was available in west Lancashire that was not available in Sefton, or that homeopathy was available in Liverpool and paid for, but not in Sefton. The postcode lottery still occurred but NICE tried to construct a set of principles for value-for-money treatments for particular ailments.

I am not sure whether we have completely eliminated that in the legislation. I am not clear about it, which is why I seek clarification. The absence of that makes the whole business of rationing care a little more difficult. If NICE is not doing it by saying, “This drug might have some effect but is simply not value for money within the NHS”, who will do it?

Presumably, doctors will have to do it, and make a decision themselves. Doctors have to face the patient in the surgery and say, “Actually, although you think this will work well, I do not think that we are prepared to fund it locally. We are not saying it has no effect; we are saying it does not represent value for money. It may have a minimal effect in its qualy impact, as it used to be described.”

Paul Burstow (Liberal Democrat, Sutton and Cheam)

We come later to amendment 670, an Opposition amendment to clause 221, where that issue will be debated. I suspect that the issue around the general powers is not where this is most appropriately dealt with. I want to ensure that I give a full response to my hon. Friend’s concerns.

Jimmy Hood (Labour, Lanark and Hamilton East)

Order. I will decide what is in order in the stand part debate.

John Pugh (Liberal Democrat, Southport)

We are talking about the general duties of NICE, so we may as well have the debate now, as I am seven eighths of the way through what I have to say. I do not think people would want me to repeat the same points. If doctors are making the decisions, the critical question we need to get straight is, “If my doctor will not give it to me, but I know that it is appropriate medicine for my ailment, can I join another practice and get it?” Can everybody do that when they are turned down by their doctor? If so, the implications for the NHS drugs budget are horrific. If that is not the case, presumably we are going to adopt a model in which if I go to see a doctor anywhere, but my consortium will not pay for the drug, I simply do not get it, in which case my consortium again determines what I do or do not get. It is very important that that principle is made clear, because the scenario in which people can shop around for doctors in order to get the drugs that they want would have very damaging effects, if only on the health service budget.

Finally, Monitor’s role, if it is not to be a gatekeeper, is to offer quality standards. What concerns me is whether a quality standard can bring in value-for-money issues. In other words, a quality standard can say that such and such an ailment is best treated in this way, and the quality way to treat it is to use such and such a drug or therapy, rather than another that is simply a more expensive way of doing the same thing. If Monitor’s quality standards can involve the same value-for-money judgments as did its previous judgments, we are back in familiar territory, but if they do not, we are in the scenario, I think, in which people can shop around for whatever medicine they want.

Liz Kendall (Labour, Leicester West)

I intended to bring up under a later clause some of the points that the hon. Gentleman has made, but as we are in it, we might as well go for it, if those are the appropriate parliamentary terms.

Jimmy Hood (Labour, Lanark and Hamilton East)

Order. The hon. Lady should not take it upon herself to “go for it”, unless it is within the stand part debate on clause 217. I ask her to address her comments to the stand part debate on clause 217 and not to “go for it” by discussing anything that we might deal with in the future.

Liz Kendall (Labour, Leicester West)

I beg the Chair’s forgiveness for my possibly unparliamentary language. The hon. Member for Southport has discussed the general duties of NICE, so I feel that this is the appropriate place to discuss those issues. As he said, NICE was originally set up to take on the very tricky problem that health care systems have faced throughout the western developed world—with new and ever-more expensive drugs coming on-stream, how do we decide what is paid for out of, in our case, the public purse?

NICE is widely respected across the world for the work that it does. People might not necessarily think that if they read only certain newspapers or if they just accept the view that certain Ministers have expressed about the failures of the system. Of course improvements can be made, but other countries look to NICE and follow NICE. It was one of the previous Government’s great achievements. Much praise is due to my right hon. Friend the Member for Holborn and St Pancras (Frank Dobson), who took that step forward. He thought that it was a difficult thing to do, but he took a very bold step in launching NICE, of which I am very proud.

NICE’s role changes and its general duties change as a result of the Bill, but as I am sure that hon. Members will appreciate, the same issue remains—how do we decide which drugs should be paid for out of the public purse? The Bill changes who makes the decision. It goes from being the responsibility of a national body to being the responsibility of general practitioners and general practitioners commissioning consortia or whatever they are going to be called if amendments are introduced.

A number of organisations have raised serious concerns about the likely consequences of the change, and I would like to go through them, because I believe that hon. Members may be facing hard questions from their constituents as the process moves forward and we need to be aware of what they may be. I shall begin by quoting NICE’s response to the Government’s consultation on replacing the current system for setting prices in the NHS with a new value-based pricing system. NICE explicitly warns that that could increase the postcode lottery, and says:

“The tight fiscal environment in which the NHS will be operating over at least the next 4 years, together with the proposed arrangements for commissioning NHS services, will tend to increase rather than reduce the challenge of achieving consistent access to new treatments. We believe that there is a risk that patients and health professionals who want to use drugs made available under the new arrangements may find it difficult to do so unless the new arrangements retain powerful, national reference points”.

I just want to state those three key national things that NICE believes need to be in place, because simply changing the way in which a drug is valued or the price that is set on a drug does not automatically ensure access or uptake of that drug. That will be up to the commissioning consortia based on their available resources. I am sure that Ministers would not say this, but sometimes it is suggested that a new way of pricing drugs will automatically lead to their uptake. That is not the case. It is not the view of NICE and it is not the view of many pharmaceutical companies.

What NICE says is that clear steps have to take place at a national level to try to ensure that there is as small a postcode lottery as possible. The first step is a clear recommendation through NICE conducting a technology appraisal, which I think is what the hon. Member for Southport must have been sitting through.

Julian Sturdy (Conservative, York Outer)

Does the hon. Lady not accept that under the current system we are suffering postcode lotteries with PCTs?

Liz Kendall (Labour, Leicester West)

There are variations, but more GP consortia will, as NICE says, make the situation far worse. If the hon. Gentleman will bear with me, I shall go on to explain why that situation is likely to get worse. It is not just NICE that says that; the BMA, the Royal College of General Practitioners and patient groups also have concerns. The current system is not perfect, but my concern is that the new system will make matters worse.

NICE believes that there should be a clear recommendation about that drug. Secondly, there must be what is called a funding direction. In other words, there must be a direction from NHS organisations—in this case, GP commissioning consortia—that indicates that the drug needs to be funded. Thirdly, NICE states that the NHS constitution gives a clear right for patients to have access to drugs recommended by NICE. I mention that because I have some concerns that that right may not be as strong as it should be.

Grahame Morris (Labour, Easington)

Does my hon. Friend agree that although it is a prime duty of NICE to control costs, which is absolutely vital, it is also the role of NICE to counter-balance the powerful influences of the large pharmaceutical companies? Perhaps the GP consortia will be far less able and equipped to stand up to them.

Liz Kendall (Labour, Leicester West)

My hon. Friend makes a point I was about to come on to about GPs’ very real concerns. I shall quote Dr Clare Gerada from the Royal College of General Practitioners. In her interview with The Guardian on 10 November—I am sure Ministers will remember it—she raised real concerns that GPs will

“be exposed to lobbying by patients, patient groups and the pharma industry…At worst, the negative impact for GPs could be patients lobbying outside their front door, saying, ‘You’ve got a nice BMW car but you will not allow me to have this cytotoxic drug that will give me three more months of life’”.

That is a fair point. She says that making GPs “the new rationers” could ruin trust between doctors and patients. In another interview that she gave to Pulse magazine on 15 November she praises NICE’s role:

“NICE protects us. I am absolutely convinced it needs to be strengthened, not reduced. I am long enough in the tooth as a GP to have worked pre NICE. I know what postcode lotteries are about and I’m very concerned”.

Jeremy Lefroy (Conservative, Stafford)

The hon. Lady makes the point that GPs are rationers, and I think that that argument has some merit, but does she not also agree that GPs have in effect been gatekeepers to the NHS almost since its inception? They therefore have some experience of that.

Liz Kendall (Labour, Leicester West)

To an extent, that is true. However, the hon. Gentleman will learn, either from his own constituents or from reading the newspapers, that there are questions about whether very expensive drugs should be made available. We must not forget that some GP consortia may cover very few patients—we have had this debate already. Just two or three patients with a need for very expensive drugs could push them into debt, and they will have to grapple with those issues. NICE provided some protection against that, but it could be faced locally a great deal. I think that these concerns are of a different order; they are very difficult, and I am concerned about how GPs will deal with them.

Some pharmaceutical companies welcome what they think value-based pricing might mean, but others have said something different. Richard Barker, the director general of the Association of the British Pharmaceutical Industry, says that value-based pricing should not be seen as some kind of magic bullet. On its own, negotiating a new value-based price will not necessarily improve access to new drugs and medicines. He is also concerned about returning to a postcode pricing system as each individual consortium will be free to make the decision about whether they have those drugs.

Perhaps I should ask the Minister about that. The Government have been exploring how to move forward on this by using the cancer drugs fund. They have explicitly recognised that it will take time to implement the value-based pricing system—I believe it will not be in place until 2014—and in the meantime they will set up a cancer drugs fund to provide access for the pressing and challenging issue of drugs for cancer patients. The Government say that

“the Cancer Drugs Fund is a key part of our wider plans to improve access to effective medicines”.

I have looked at how the fund is working in different regions. Hon. Members will know that at the moment it is being run at the regional level by strategic health authorities. I have struggled to get all the information together, and because I do not have that I will make no firm conclusions about how the system is running, but I will say that there are wide variations in how many oncology products are on the priority lists of strategic health authorities.

For example, NHS South Central has eight products on its priority list for funding from the cancer drugs fund, compared with 24 on the list for NHS North West. It is also using very different criteria to determine whether those drugs should be put on the list. If that is not done nationally there will be variations. In the cancer drugs fund, there are significant variations in the numbers and the criteria used. If that is already happening, what do we think is likely to happen when GP commissioning consortia make those decisions? I am doing my best with limited resources to establish why different criteria have been developed in different regions, why different numbers of drugs are included and how the different processes work. I hope that clear evidence and analysis will be presented to the House before decisions are made about the value-based pricing system. Clearly, there are many variations, and I am concerned that they will increase.

Margot James (Conservative, Stourbridge)

I am concerned that an impression is being created that GPs will be left to interpret NICE guidance and get on with decision making in front of an individual patient. From my reading of the Bill, I do not think that that is the case. A GP will operate within the whole construct of a duty of quality that surrounds him or her via the outcomes framework. GPs and their commissioning groups must operate with a close regard to NICE advice and guidance. That advice and guidance will be much more far-reaching now that it goes beyond the evaluation of individual drugs. It will be a whole outcomes framework by disease and the various other interventions mentioned in the Bill.

Liz Kendall (Labour, Leicester West)

GPs must still decide whether to spend £80,000 on a drug for the patient in front of them. It does not change the difficulty of the decision. Nobody knows how the new value-based pricing system will work. The consultation has just closed. The new system is supposed to consider not only whether an individual will benefit clinically from the drug but whether wider society will benefit and whether the drug, technology or treatment fulfils unmet need. Those are broad and nebulous concepts that have not yet been pinned down. We are not sure how all of it will work, pharmaceutical companies are not sure how it will work and NICE is not sure how it will work.

Will NICE have a role in determining the value-based pricing system? We think that it will have a role in assessing drugs under the new system, but will it have a role in drawing that up? I say to the hon. Lady that the drug companies will not suddenly and miraculously start making complicated gene-based drugs cheaper as a result. GPs, not NICE, will have to make the decisions. I freely admit that when NICE has made decisions, not all PCTs have taken them up, but that is about money, and simply wishing it away will not work.

In conclusion, I would like the Minister to answer some questions in his response. First, it seems to me that NICE has two roles. One involves producing quality standards, which we know will cover not only the NHS and public health but, for the first time, social care. That could cover a huge range of different treatments and services, and will involve consulting many more organisations.

NICE’s second function will relate to the value-based pricing system. It will at least assess drugs under the system, and will possibly help to develop the system in the first place. As I said, that will be a complicated process—even more complex than NICE’s current focus on quality-adjusted life years. We must remember that NICE’s funding is being cut by 30%. That relates to the point made by the hon. Member for Southport about mission creep. NICE has a huge number of jobs and tasks to do. I am sure that it would never let its standards slip, as it holds those standards dear, but it has a big and complicated task.

John Pugh (Liberal Democrat, Southport)

The hon. Lady mentioned a postcode lottery. I may have misunderstood the legislation, but one benefit of NICE rules is that no PCT at the moment can refuse to deliver a treatment that NICE recommends. There is a possibility of that happening with the Bill, because if we change the function of NICE there will not be approved standards in the same sense. That must produce a more uneven picture in terms of health outcomes.

Liz Kendall (Labour, Leicester West)

I agree. That is my concern, and we will come to amendments on that. The requirement on health and social care bodies to deliver and implement the quality standards or implement the advice and guidance is weaker. Amendment 670 covers that. The requirements are far too weak, which we will discuss later. With that, I thank you, Mr Hood, for your patience.

Debbie Abrahams (Labour, Oldham East and Saddleworth)

Some points I wanted to raise have been mentioned already but my other points follow on neatly from what has been said.

Subsection (1)(a) mentions “benefits and costs” in the general NICE duties. I would like the Minister’s reassurance that cost-benefit analysis will not be the only method used. Given the reduction in resources to NICE and, obviously, the breadth of work that has been added to it, as my hon. Friend mentioned, there might be a tendency to use quicker, less engaging processes. One of the real exceptions to how NICE undertakes its work is the quality and robustness of the range of evidence that it uses. As has been mentioned, it is well respected across international health systems.

I know how seductive numbers are and, over the past few years, there has been a tendency to try to look at and pin down evidence in quantitative form. I think that is a weakness. There are benefits to including social care in NICE’s remit, but there is a caveat in that it must use a broad range of methodologies to determine the effectiveness of different interventions.

Owen Smith (Labour, Pontypridd)

I have said this on other clauses to the Bill, but in this clause and the other clauses that relate to NICE there is a dearth of detail about what NICE will do. The clause repeatedly stipulates that most things will be sorted out in regulations. [ Interruption. ] The Minister shakes his head and looks exasperated, but I do not see how he could demur from that conclusion, because it says repeatedly in this clause and others that matters will be in the regulations. I do not think that it is illegitimate for the clauses to say that, because clearly NICE’s role is changing quite significantly. The reason for that change is the introduction of value-based pricing. We have a consultation on that, and it is entirely proper that the Government consider what comes out of the value-based pricing proposals before they determine how the final function and form of NICE will look.

The assumption in the value-based pricing proposals is very significant for NICE, because it will shift from being a body that provides independent advice to the NHS at arm’s length from the pharmaceutical companies on the nature and cost efficacy of a given medicine to being a price-setting body. That is the big change in play under value-based pricing. NICE will effectively be determining what it thinks the price ought to be for a medicine in this country, as opposed to the current situation, whereby a company sets the price and NICE suggests whether it is value for money, and therefore whether the NHS ought to pay it. That change raises many questions, which are relevant to the clause, about the general duties.

First, NICE has not previously done that sort of job. It has done the analysis to determine whether it thinks a medicine is cost-effective; it has certainly not then set a price. That is a very different skill set from the roles that NICE currently has. It has not engaged in price negotiation with the companies, which we assume, because it is not clear in the Bill, will be the next step. So, will the Minister clarify whether the value-based pricing system works? If NICE determines what it thinks the price ought to be, will it go on to negotiate the price or will the Department of Health do that? If it is NICE, is the Minister confident that it will both have the skills and be able to do that additional significant piece of work with a 30% cut to its budget? If it is the Department of Health, which bit of the Department will do it, because it has previously never done that, either?

My second point, far more importantly, is about the PCTs and the crucial role that they have played in the NICE process. The issue is twofold and it speaks in some respects to some of the matters that the hon. Member for Southport raised. One is that, under the current system, it is the PCTs that effectively, through their pharmaceutical committees, make decisions on medicines that are not NICE-approved, for which there is no guidance, and they make the decision as to whether that medicine is going to be made available to local patients. [Interruption.] I am obviously speaking to myself. I do not know why I am bothering.

Jimmy Hood (Labour, Lanark and Hamilton East)

Order. The Chairman is listening, and I hope the rest of the Committee. I am delighted to see that the Minster is feeling better than he was this morning.

Owen Smith (Labour, Pontypridd)

As am I, Mr Hood. I am delighted to see that he is looking considerably improved.

Simon Burns (Conservative, Chelmsford)

Oh, thank you.

Owen Smith (Labour, Pontypridd)

He had a good lunch, I hope.

PCTs that are being abolished are clearly playing an important role in determining which medicines that were not NICE-approved would be funded and therefore that local GPs could prescribe. The second crucial role that they increasingly provided on behalf of the NHS was engaging in the single technology assessment and multiple technology assessments, offering advice and guidance to NICE on clinical practice, either in trials or post-licensing of medicines being used in the NHS. There is a question about who in the NHS will in future be able to provide that guidance to NICE, because PCTs have built up that expertise and it has effectively been managers and clinicians with managerial responsibility in PCTs who have done it. In the new system it may be that somebody is designated with that task in GP consortia, but that is not clear in the Bill and therefore I think that that is an open question.

The third question, which comes on to the substance of the comments made by the hon. Member for Southport, concerns whether the legislation makes it clear that the current process whereby the NHS is mandated to provide funding for NICE-approved medicines within three months of their launch will continue. That is the current mechanism that we have to drive from the centre the take-up of cost-effective, innovative medicines. It is not clear whether the Bill will continue the status quo. It says that it may do that under regulations, but I would be grateful if the Minister clarified whether that will continue. If it does not continue, presumably there is a risk that the postcode lottery will expand.

Even if the status quo does continue in respect of medicines that are not NICE-approved and where therefore there is local decision making, there is still an obvious risk that, in a more disaggregated, more autonomous NHS, there will be more postcode prescription, or more divergence in decisions. My hon. Friend the Member for Leicester West made that point in respect of the cancer drugs fund. That is the evidence that we need to suggest that that might be a danger under the new system.

If the status quo does apply and subsequently the regulations state that funding is mandatory—it will be provided by GP consortia in future, I presume—how do we square that with competition law? Will there not be problems whereby providers of alternative medicines feel that they ought to have been given a different crack of the whip when NICE made the assessment of their medicine versus another medicine? Some clinicians may feel that NICE has made the wrong decision. It opens up NICE decisions to judicial review under competition law and other legislation.

My final and most important point is about Wales. Wales is not mentioned in this part of the Bill. Scotland has a different system—it has the Scottish Medicines Consortium—for assessing medicines, and Wales has the All Wales Medicines Strategy Group. The reality, however, is that the AWSMG is a much less well-resourced and much smaller body, which is unable to provide the enormously powerful service that NICE does in assessing all medicines. If NICE guidance does not have a mandatory effect across the board, or if there is less NICE guidance, because it is tied up with price negotiation, the AWSMG will have to pick up the tab and try to do that role for Wales. I will be interested to hear the Minister’s comments on that in particular.

Jeremy Lefroy (Conservative, Stafford)

Subsection (1)(a) mentions

“the broad balance between the benefits and costs”,

and my question relates particularly to medicines where the benefits may be long term, but the costs may be immediate and high. That will become particularly important with drugs that are targeted at the progressive diseases of ageing, which will—I hope and pray—be coming on to the market over the next few years. We may see high up-front costs, which may create problems for drugs budgets, but long-term benefits.

Liz Kendall (Labour, Leicester West)

Does the hon. Gentleman agree that it is not only what we would call traditional drugs that have long-term benefits? The vast majority of drug development is going towards new genetic and biotechnology-based drugs. One of the problems with traditional drugs is that they are the same for everybody. The genetically based, biotech drugs can help individuals to benefit, because of their genetic predisposition. That is the whole thrust of drug policy. For many of those drugs, the benefits may not be seen for many years, because they will be trying to prevent genetic predispositions from coming forward.

Jeremy Lefroy (Conservative, Stafford)

The hon. Lady makes a good point, and those drugs, along with drugs targeted at ageing, are precisely the kind that I had in mind. Indeed, there was a good initiative under the previous Government on the financing of vaccines internationally, whereby money was effectively provided for vaccinations up front, so that children would be protected from the ravages of disease, and they would gain throughout their whole life. The cost of that was borne not in one year, but over several.

Liz Kendall (Labour, Leicester West)

One of the issues that pharmaceutical companies and others have raised about the value-based pricing proposal is that they are not clear whether it covers vaccines. The hon. Gentleman makes an apt point in relation to not only other countries, but this country. They are not clear as to whether vaccines will be included under that system.

Jeremy Lefroy (Conservative, Stafford)

I thank the hon. Lady for that intervention, but I just want to ask the Minister whether these things are being considered and whether there will be finance mechanisms that enable the up-front costs to be spread over several years to ensure that people can accrue such benefits, rather than the costs being borne in a single year and refused, because of the adverse consequences on budgets.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The debate has been useful, if only because it has allowed a number of misconceptions and misunderstandings to be dispelled—and quite a few were rehearsed by the Committee today.

As hon. Members said, NICE is recognised as the international leader in the evaluation of drugs and health technologies. It will continue to have an important role in that context, including assessing the incremental therapeutic benefits of new medicines. We will implement our plans for value-based drug prices in 2014. I want to say more about that, so I shall take no interventions while answering the various questions that have been asked, although I am sure that hon. Members will be tempted.

The arrangements to be put in place from 2014 will ensure that NHS patients have consistent access to effective medicines wherever in England they live. That is one of our key objectives in designing the new value-based pricing system. We are considering further what specific arrangements should be put in place from 2014, when value-based pricing is implemented in the light of responses to the consultation.

Some of the comments on the consultation that the hon. Member for Leicester West shared with the Committee gave the impression that the Government had set up an Aunt Sally in the value-based pricing system, and that the comments were about specific proposals. Of course, the consultation made a big contribution to the early stages of an ongoing design process. We would expect that process to continue to engage with the stakeholders, many of whom have already contributed their questions, their concerns and their suggestions.

The Bill makes no specific provision for value-based pricing, not least because the policy detail is still under development following the recent consultation. If it appears that further legislation is required to implement the final arrangements for value-based pricing before 2014, we will have to consider the matter separately. That should not be taken to mean that we believe that it will be necessary; it simply means that we need to keep the option open, and that I am being as straightforward with the Committee as possible at this stage.

My hon. Friend the Member for Southport posed a question about mission creep, a subject that was touched upon by several hon. Members. General concern was expressed about whether it was appropriate and how it could be stopped. It is worth noting that reference was made to an inadequacy of detail about NICE in the Bill. We ought to consider the relevant pages of past legislation to see what detail they gave about NICE. For the benefit of the Committee, I am holding up some pages that make clear how much detail was included in previous legislation. That demonstrates that there is a difference in the level of detail: we have provided considerable detail in a number of the clauses that we shall be debating over the next few hours.

Nicky Morgan (Conservative, Loughborough)

For the benefit of Hansard, perhaps I can clarify that the Minister held up some blank pages; there was nothing on them and no detail.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Those who follow our proceedings may have missed that nuance, but I am grateful to my hon. Friend for pointing it out.

This is the first time that NICE has been placed on a statutory footing. It is important to mark the fact and to note that the Government are prepared to establish it on that basis. I would like to develop my points a little further before—

Liz Kendall (Labour, Leicester West)

Will the Minister give way?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

In a second, and before I finish this point.

It means that the underpinning legislation is now open to far greater parliamentary scrutiny. NICE’s scope was increased to cover public health in 2005, but that would now require a change to primary legislation. My hon. Friend the Member for Southport seeks the opportunity for Members to scrutinise and to ask whether an extension of the remit is appropriate. He did that during his remarks. We have placed all that detail in the Bill for the first time, which means that further primary legislation would be required to make other changes to the remit.

I welcome the comments of the hon. Member for Leicester West on the social care remit extension. The change has been widely welcomed by the social care sector and beyond. We have had a running theme during our consideration of these clauses on the necessity of greater integration and collaboration across health and social care. That was very much the thinking that drove us to the conclusion that the remit should be extended in this way.

The hon. Member for Leicester West also asked about clause 217(1)(a), and whether there was a risk that it could lead to a narrowing of the types of tools used to assess costs and benefits. Again, that is a perfectly fair question, and I assure her that, no, that is not the intention of the wording in the clause. We intend to ensure that a wide range of tools is used. In respect of the social care remit in particular, there is much discussion with the sector about how we draw on various expertise, particularly with regard to quality standards.

I have covered the point about the level of detail.

Kevin Barron (Labour, Rother Valley)

Is not the lack of detail in past legislation because NICE is a special health authority, and not the non-departmental public body that the Bill will create?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The answer is yes. I struggle to understand the point, because it is a special health authority and at the stroke of a pen, the Secretary of State could abolish it at his discretion. The Bill puts the body into statute—[ Interruption. ]

Jimmy Hood (Labour, Lanark and Hamilton East)

Order. I know that it is getting late in the day, but hon. Members should calm down a bit.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I will try to calm down, Mr Hood; I am sorry. The Bill puts NICE’s future beyond doubt, and if there were a desire to change it, that could be challenged. I will give way to the hon. Lady who has been waving at me for some time.

Liz Kendall (Labour, Leicester West)

Not waving, and never wavering. I am disappointed, but perhaps not surprised that the Minister attempted a cheap conjuror’s trick of holding up pieces of blank paper. I hope that he will acknowledge that in 2005 the then Secretary of State issued clear directions to the National Institute for Health and Clinical Excellence. If the hon. Member for Loughborough will look, I can point her to plenty of criteria, functions and issues that NICE must take into account. Opposition Members are raising serious issues, and I hope that the Minister will respond in a serious manner.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

If the hon. Lady thinks that putting something in the Bill is not a serious matter, and that we should not draw attention to the fact that directions that are not subject to parliamentary scrutiny are a lower level of accountability than we are introducing, she is mistaken. Those who follow our proceedings might take note that she dismisses that so casually.

I shall try to deal with some other points. The hon. Member for Pontypridd asked about competition law. Monitor’s role applies only to services and not drugs, so his concern is not relevant. We have discussed that, and I urge him to reread some of our extensive discussions last week—they are a good read—when my right hon. Friend and fellow Minister was dealing with those matters.

On drugs funding, there has been and is a huge misunderstanding. Mandatory funding for certain drugs will apply to consortia in the same way as to PCTs. I want to be clear about that. Mandatory funding of certain drugs will apply to consortia in the same way as to PCTs. The hon. Gentleman asked what part of the Bill is relevant to that. It is clause 221, and we will discuss the matter further when we come to it. It provides a regulation-making power that we intend to use to give exactly the same effect as the directions in respect of money in the existing system.

Grahame Morris (Labour, Easington)

Will the Minister give way?

Owen Smith (Labour, Pontypridd)

Will the Minister give way?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

In a moment. We need to update the underpinning directions, but the effect will be the same. I draw hon. Members’ attention to the fact that the specific part of clause 221 is subsection (8)(a).

Owen Smith (Labour, Pontypridd)

I do not want to fall foul of you, Mr Hood, but the clause to which the Minister refers, clause 221(8)(a), is preceded by—

Jimmy Hood (Labour, Lanark and Hamilton East)

Order. The Minister said that he would comment on that when we came to it. I hope that the hon. Gentleman will not take that as an invitation to comment on it before then.

Owen Smith (Labour, Pontypridd)

I am grateful to you, Mr Hood. Of course, I bow to your judgment. In that case, my question is this. The Minister says that current mandatory funding procedures will apply to certain drugs in future. Given that NICE will not be doing its job of approving medicines in the same way, to which drugs will they apply?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

If we are talking about the pre-2014 world prior to value-based pricing, we intend for the present policy position to continue. Consortia will be under the same obligations as PCTs in respect of paying for drugs recommended by NICE. I hope that I have put that point on the record as clearly as possible. When we get to clause 221, where we should deal with the issue—I hope that you will agree, Mr Hood—I will be happy to return with further clarification.

A common misunderstanding is that NICE has the power to ban the use of drugs in the NHS. The suggestion that that role will be removed is based on that misunderstanding of the true position. Far from banning drugs, NICE takes into account all the latest clinical evidence and published guidance on how a drug can best be used in the NHS to improve patient outcomes and make best use of NHS resources. NHS bodies act in the light of that advice and normally make funds available for health care interventions recommended by NICE.

Given NICE’s expertise, it will continue to play an important role in any new system. We have just concluded the consultation on that new system, and the Committee has been a useful extension of that consultation. Members have aired numerous concerns that we must take into account. It would also be helpful if hon. Members cared to suggest further solutions. I am sure that they will, as we proceed with the design of the change in prices.

Grahame Morris (Labour, Easington)

Notwithstanding the outcome of the consultation on the new value-based system for the pricing of branded medicines, does the Minister rule out ministerial involvement in the pricing of individual drugs and the directions issued to GP consortia?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I will not do that at this point. It is another path leading down to a certain place and I will not go down it, for the simple reason that we have just concluded a consultation, we are properly considering it and I do not want to pre-empt it and our judgments on it. That is what the hon. Gentleman is inviting me to do, but that would be wrong.

On the question about how value-based pricing will operate and whether it will operate at a local or a national level, that is another area in which misconceptions and misunderstandings have run wild. We did not state that in the recent consultation. We are considering the responses and how the system might best operate to meet our objectives, but we have not said specifically whether it will be local or national. We have asked questions and are in the early stages of design.

Our priority, as I said, is to give NHS patients better access to effective and innovative medicines. We intend to do so by reforming how companies are paid for NHS medicines and moving to a system of value-based pricing when the current pharmaceutical price regulation scheme expires at the end of 2013. The current system of drug pricing has provided stability over time, but it does not promote innovation or access to the extent that we are seeking. We need a much closer link between the price that the NHS pays for medicine and the value that it delivers.

On questions about other aspects, we want the arrangements to be in place from 2014 to ensure that NHS patients have consistent access to effective medicines. We are considering further specific arrangements that should be in place from 2014. That is the purpose of the consultation.

I have also been asked whether NICE will have a role in price setting. NICE will have an important role in any new system; that is the clear, unequivocal point. However, we have only recently finished the consultation, and the detail of how value-based pricing will operate is still being considered and worked through. We will continue to hold discussions with NICE, the industry and other interested parties as we take forward the design of the new system.

It has been suggested that NICE’s role is changing in a way adverse to the patient’s interests. Absolutely not—value-based pricing will be in place from 2014. The Bill makes no provision for value-based pricing. As we develop the policy, we will consider whether any further legislation is necessary.

My hon. Friend the Member for Stafford asked about expensive drugs, and their up-front costs and long-term benefits. The answer is yes, as happens now.

I have saved the best for last—NICE in Wales. NICE is an England-only body, but Wales will have access to NICE products and may also contract independently with NICE for Wales-specific products. That is a devolved matter for Wales, which will be able to use the expertise of NICE, because it is well respected, under those contracting arrangements.

Owen Smith (Labour, Pontypridd)

I am grateful for that clarification. The Minister is entirely accurate in his description of the situation in legislation, but in the real world the All Wales Medicines Strategy Group and the NHS in Wales rely greatly on taking NICE guidance and applying and assessing it. In a world post value-based pricing, will NICE still provide that guidance or will its role be restricted to price setting and, in that case, will there be less NICE guidance in the public domain for the AWMSG to take advantage of?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I do not believe that there is any reason to suppose that that will be the outcome of the changes to value-based pricing. With that and my other answers, I hope I have reassured the Committee that the clause, which deals with the general purposes of NICE, should stand part of the Bill.

Liz Kendall (Labour, Leicester West)

I am grateful to the Minister for his reply. I do not think that he addressed one point that was raised by my right hon. Friend the Member for Rother Valley, but I am sorry if I missed it. Who will undertake the price negotiation—NICE or the Department of Health?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I refer the hon. Lady to the answer that I have already given. We are at the point in the consultation process where we have just received the responses, and we will consider and deliberate on them before we move to the next stage.

Clause 218

Liz Kendall (Labour, Leicester West)

I beg to move amendment 666, in clause 218, page 189, line 33, after ‘(c)’, insert ‘adult and children’s’.

The clause sets out more detail about the quality standards that NICE produces. I want to say again that it is a good idea formally to bring together health and social care services within NICE’s remit. Hon. Members will know that NICE has already begun to do that through some of its existing quality standards. It has looked at public health, health care and social care, and at how all the different bits of the system need to work together. It has produced some excellent quality standards. One that I have read all the way through is on obesity. It looks at everything that needs to be done to tackle that problem, which is very welcome.

The amendment seeks to clarify whether NICE’s remit on social care will include children’s as well as adult social care. The explanatory notes to the Bill suggest that its remit will cover both areas, because it refers to the Secretary of State’s being able to commission quality standards alongside the Secretary of State for Education. However, NICE has certainly raised with me the issue of whether children’s social care will come within its remit.

I want to ask about a point raised in a previous debate by the Minister, who said that discussions are going on with relevant bodies. What discussions has he had with local authorities or the Local Government Association about the new role for NICE in its covering quality standards and social care as well as health? Will local councils be required to implement NICE quality standards? Have the Government conducted an impact assessment on the implications of that for council budgets?

Let me give an example. I am pretty sure that if NICE had a quality standard for the various aspects of adult social care, it would say that the best quality care would seek to prevent adults, and older people in particular, from having deteriorating health. That might require some social care support—perhaps visits from supporters and carers. We know that many councils are raising the threshold for the support that they provide because of funding squeezes.

Councils are facing substantial cuts to their budgets because of the Government’s determination to eliminate the deficit within four years—they are facing 26% or 27% cuts, which are being frontloaded. As I am sure hon. Members are aware, many councils are raising their thresholds for support. So it is important to be clear whether the Minister has conducted any kind of impact assessment relating to the effect on council budgets. Has the Minister had any discussions with Ofsted about the issue? If NICE is setting quality standards for children’s social care, will Ofsted be required to inspect services and councils to ensure that they are delivering and implementing those quality standards?

The other point that I want to raise is about the Social Care Institute for Excellence. Hon. Members know that NICE was initially set up for the health service and SCIE was set up for social care. Now that NICE is taking on the function of setting out the highest possible quality standards, will SCIE continue? Or will it instead be brought into NICE? Will NICE commission its quality standards from SCIE? Will the quality standards have the same rigour as those developed by NICE? I know it does some excellent work, but I would appreciate the Minister’s answers to all those questions. I am sure that hon. Members will have other questions, too.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Amendment 666 would make it explicit that NICE’s remit in preparing quality standards will include both adults’ and children’s social care. There is no difference between the two sides of the Committee on the issue, but the amendment is unnecessary. The definition of social care used in relation to NICE, which is set out in clause 217(3), already covers adults’ and children’s social care services. Furthermore, not making a distinction between the two enables NICE to consider issues relevant to the transition from childhood through adolescence and into adulthood. That is an area of public policy that has much scope for improvement in practice.

The hon. Lady also referred to the funding pressures on local authorities. I draw the Committee’s attention to the work recently published by the King’s Fund, which looked at the social care funding challenge. The King’s Fund made two conclusions. The funding gap by 2014 will be £1 billion, but—this is an important “but”—that funding gap arises only if one does not take into account the efficiency savings within local authorities.

Once efficiencies are taken into account, the King’s Fund concluded that there will be no funding gap on the basis of the resource decisions made specifically and explicitly in support of social care, both through the funding that the Department of Health is making available via the NHS to social services departments and the funding that has gone into the formula grant and will continue to go into the formula grant during the spending review period. Local authorities are making choices, and they are making different choices about the services that they are choosing to protect, but it is not true that the Government have not provided a settlement to support social care, if that is what local authorities choose to do.

The hon. Lady asked about discussions with the LGA. In the end, that is a matter for NICE. I have had discussions about the principles of the Bill, particularly this opportunity to drive more integration. I have spoken to colleagues at the LGA, and they have indicated their support of the broad direction of travel.

However, the detail of how NICE takes forward its remit is clearly not a matter for Ministers; it is for NICE to have those discussions. It will also continue to have close working relationships with SCIE, which does some very important work, as the hon. Lady rightly says, and will continue to have a role to play beyond its current work producing standards and guidance. I suspect that it will continue to have a very close working relationship with NICE. On the issue of the future, the Department of Health currently funds SCIE and is working closely with NICE.

The hon. Member for Leicester West also asked about Ofsted and inspections. I want to make it absolutely clear that, as will be the case with the Care Quality Commission—I say that so the question does not get asked in a moment—Ofsted will not be bound to inspect against quality standards. Local authorities will not have a specific statutory duty in respect of quality standards, and nor will consortia.

In respect of the NHS, the NHS commissioning board will produce commissioning guidance based on the quality standards, but it will be a matter for local authorities to make decisions about the social care services that they commission as independent, locally elected bodies. For the first time we will bring together, in a clear, creditable and accredited way, a set of standards that have been put together by the profession and the sector and which can be drawn on by commissioners as they commission social care services. I hope that that has answered the hon. Lady’s questions. The amendment is unnecessary, and I hope that she will withdraw it.

Liz Kendall (Labour, Leicester West)

The Minister claims that the quality standards that NICE will set for social care will have some sort of force behind them because consortia will be required to deliver them. Under later amendments, I will explain why I do not think that that is necessarily the case, but I suggest to him that it is quite amazing he has not spoken to local councils and the LGA specifically about NICE’s new role setting quality standards in social care.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The proposal was contained in the White Paper last July and was the subject of consultation, to which we had extensive responses; and there has been ongoing dialogue with local government about the transition of a host of the changes that the Bill produces. Those discussions have taken place

Liz Kendall (Labour, Leicester West)

That sounded slightly different from the Minister’s original reply. I am not sure that local councils across the land are aware that NICE will set the quality standards for social care, so I strongly urge the Minister and other hon. Members to have that discussion. I know that my local council has been very focused on the new health and well-being boards and what public health money will come over, but there is no point in having a quality standard that joins up health and social care if neither party is committed or able to implement it. More detailed discussion is needed. If the Minister has had specific discussions on that subject, I am pleased to hear it, but I urge other hon. Members to engage in such discussions, because I am not sure that a huge number of councils are aware of the change.

I am grateful for the Minister’s clarification that the definition of social care in the Bill does indeed include children’s social care. I am sure that NICE will be glad to be hear that. It raised that question with me, so I am very pleased by that provision. I beg to ask leave to withdraw the amendment.

Liz Kendall (Labour, Leicester West)

I beg to move amendment 664, in clause 218, page 189, line 35, after ‘preparing’, insert ‘or revising’.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this is will be convenient to discuss the following:

Amendment 667, in clause 218, page 189, line 35, after ‘consult’, insert ‘and involve’.

Amendment 668, in clause 218, page 189, line 35, after ‘public’, insert

‘and health and social care professionals as appropriate.’.

Amendment 669, in clause 218, page 190, line 11, leave out

‘such persons as it considers appropriate’

and insert ‘all relevant persons’.

Liz Kendall (Labour, Leicester West)

Am I required to speak to the amendments in order, Mr Hood, or may I hop about?

Jimmy Hood (Labour, Lanark and Hamilton East)

This is the hon. Lady’s own group of amendments and she can do what she likes.

Liz Kendall (Labour, Leicester West)

Marvellous—liberating the Opposition Front Bench. That is much appreciated, Mr Hood.

The amendments are designed to strengthen the requirements on NICE to consult and involve the public, health and social care professionals and all relevant bodies both when it draws up and when it revises its guidance. Existing legislation does not provide a strong or broad enough outline of how NICE should involve and consult various bodies.

Amendment 667 would require NICE not only to consult the public, but to involve them in decisions. I want to say a little about NICE’s citizens council, which I hope will continue in NICE’s new role. There is no mention of it in previous legislation and there is none in the Bill, but I want to say something about why I think the citizens council plays such an important role. I use it as an example to show what we mean by not just consulting and asking the public, but genuinely involving them in decisions.

Hon. Members may be aware that the citizens council was set up in 2002 to ensure that NICE hears not only from patients, patient groups and their carers, but from ordinary members of the public who fund the NHS. An extremely innovative body, it comprises 30 ordinary members of the public who are broadly representative of the UK as a whole. The council meets twice a year for three days at a time, when it takes evidence and seeks to come to decisions and make recommendations on often very challenging matters. For example, the council has looked at the definition of quality adjusted life years, which encompasses not only the extra years a patient would get from taking a particular drug, but how healthy the patient would be and how free from disability, and the severity of illness that remains. The council has also looked at the circumstances in which NICE should recommend interventions where the cost per QALY is above the stated £20,000 to £30,000 per year.

I am a long-standing and passionate supporter of involving the public in more meaningful ways. I was involved in the first citizens juries established in this country, and the citizens council came out of that work, which is about saying that the public, given enough time and information, can make serious and difficult judgments. The amendment aims to ensure that NICE not only asks patients and patient groups what they think, but genuinely involves the public in very difficult decisions.

Amendment 668 would require NICE to consult and involve not only the public, but health and social care professionals, as appropriate. The reason why is obvious: NICE needs to consult a range of professionals in producing its guidelines. I am sure that it would probably do that anyway, but the amendment would make that clear.

Amendment 669 would replace the duty of NICE to consult

“such persons as it considers appropriate”

with the duty to consult “all relevant persons”. Again, it seeks to strengthen the requirement on NICE. As NICE said in its response to the consultation on value-based pricing, it needs to consult patients, providers, manufacturers and commissioners. The amendment would put that requirement for broad consultation in the Bill.

Finally, amendment 664 would add a requirement for NICE to consult all those groups and bodies not only when it is preparing guidance, but when it is revising it. As we know, the guidance that NICE publishes sometimes has to change, and it is important that NICE involves and consults people in that case.

I am not a soothsayer, but I predict that the Minister will say that the amendments are unnecessary, that that is what NICE would seek to do and that Labour never provided any detail about NICE when we were in government.

Jim Shannon (DUP, Strangford)

NICE is a reputable organisation that has the confidence of the general public. Does the hon. Lady think that the proposed changes will ensure that that will continue?

Liz Kendall (Labour, Leicester West)

I thank the hon. Gentleman for his intervention. That is precisely why the amendments have been tabled. During a tight funding period for the NHS, when huge efficiency savings have to be made and when overall funding for the NHS is going to be reduced over the next couple of years—

Simon Burns (Conservative, Chelmsford)

Wrong.

Liz Kendall (Labour, Leicester West)

If we take the change in inflation that is in the Budget, that is correct.

Jimmy Hood (Labour, Lanark and Hamilton East)

Order. I am now listening to chuntering from Members on both Front Benches.

Liz Kendall (Labour, Leicester West)

Thank you, Mr Hood. I think it is vital that NICE retains the support of patients, the public and health and social care professionals, which is why I have tabled the amendments.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I shall try not to use all the lines that the hon. Lady predicted I would utter, but I should say again that we share the intentions behind the amendments. The question is how we achieve them, and I hope to be able to reassure her.

NICE’S reputation rests in large part on the open and transparent processes that it adopts in developing its products. That is a key part of what people appreciate about how it operates. In its current form, NICE actively promotes the involvement of patients, carers and the public in its work through its patient and public involvement programme. The hon. Lady has described the work that the citizens council does. Whether that continues is up to NICE; the only thing that will change under the Bill is that NICE moves from being a creature of the Secretary of State as a special health authority to being a creature of statute, thus protected by the fact that it will require parliamentary scrutiny to change in the future. It will not change the key personalities and people involved in that organisation, so it is highly unlikely that its change in status will suddenly make it reconsider the things that it thinks are working well now. If NICE thinks that citizens councils are working well now, nothing in the Bill will change its ability to continue to run that operation in the future.

Debbie Abrahams (Labour, Oldham East and Saddleworth)

I applaud everything the Minister says, but I cannot see how the circle may be squared of NICE maintaining the types of methods and tools that we applaud and recognise as robust while its work load doubles and it has a 30% reduction in the budget. I do not see how it can be done.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

As the hon. Lady knows, the reality is that right across the public sector, we have to make some tough decisions about resources. Although I would be only too pleased to do so, I will not rehearse the reasons why the present Government find ourselves in that position. That is probably for another day.

Debbie Abrahams rose—

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Let me come to the substantive point, which is that, in our view, the resources we are providing to NICE will allow it to develop its new role over the next few years and continue to do the valuable work that it does now. That is the judgment that we have made based on the resource envelope that we have provided.

Earlier, references were made to NICE expressing concern about the drafting of a particular clause. Although it is very helpful to have that feedback via the hon. Member for Leicester West, NICE can pick up the phone and speak to the Department directly, and does so regularly. We have a good, healthy working relationship with NICE.

I draw attention to the work done to date on developing the published quality standards. There is a wide range of publication partners drawn from a broad spectrum of stakeholders, including clinical and patient, professional and lay, and managers and front-line staff. Because we are putting NICE on to a statutory footing for the first time and moving away from the special health authority approach, we do not want anything that NICE does in the future to detract from its excellent track record, and we have reinforced that point in the Bill. NICE will have a specific requirement to consult the public in preparing quality standards.

Rather than improving or increasing the level of public involvement, I fear that the amendments would merely burden NICE with additional tasks that add uncertainty and little value to the extensive engagement that the hon. Lady partly described and that is part of the way that NICE operates. NICE’s open and transparent approach means that when a review of quality standards proposes significant changes, consultation will be an expected part of the process. I hope that that reassures the hon. Lady, and I urge her to withdraw the amendment. If she feels that she cannot, I urge my colleagues to resist it.

Liz Kendall (Labour, Leicester West)

I think that facing a 30% budget cut will mean that NICE has to look very seriously at what it does. NICE does not know what role it will have under value-based pricing, because the Minister is still chewing over—sorry, considering—the responses to the consultation. If NICE is required in statute to set those quality standards, whatever role it has, I am worried that among the first things to go will be bodies such as the citizens council, because it costs money and takes time to genuinely involve and engage members of the public. I personally believe that the council represents money well spent.

I think that the Minister is right—I believe that NICE will involve and engage members of the public, because, as the hon. Member for Strangford said, it wants to have that authority. However, I want on the record the Opposition’s concern that innovative forms of public engagement, such as the citizens council, will be one of the first things to go when an organisation is faced with a one-third cut in its budget combined with a possible doubling of its work load. Despite that, I beg to ask leave to withdraw the amendment.

Jimmy Hood (Labour, Lanark and Hamilton East)

I have been asked for a five-minute suspension, so the Committee will be suspended until 6.20 pm.

Kevin Barron (Labour, Rother Valley)

I have a couple of questions for the Minister about clause 218. We were told during our first sitting that 150 quality standards would be produced within five years and that NICE now has about three or five ready to publish. That looks like a very difficult task against the backdrop of the 30% cut in budget, but I have no doubt that we have debate another day.

More importantly, I want to ask the Minister how he thinks quality standards will affect health care delivery in this country. In that first sitting, a number of Members asked Sir David Nicholson what he believed would happen. He said that 150 quality standards will be developed and continued:

“That will then be translated by the commissioning board into local commissioning guidelines. It will all be translated into a national framework contract for providers. In that way—”Official Report, Health and Social Care Public Bill Committee, 9 February 2011; c. 15, Q30.]

The hon. Member for Stourbridge mentioned that earlier this afternoon.

What will the likely effect of that be? NICE, as an organisation, has been issuing both statutory and non-statutory mechanisms for a number of years now; sadly, however, even when NICE has recommended good practice it has been up to PCTs how to interpret that, or not interpret it as the case may be. It has always been difficult for NICE to spread best practice throughout the NHS. It seems to me that “quality standards” are about doing exactly that, and that was what Sir David Nicholson was referring to in his evidence.

Subsection (5)(a) says:

“A quality standard (and any revised standard)…must be endorsed by the relevant commissioner”.

As I understand it, in effect, that provision means that organisations will have to deliver to the quality standards, which will be published. NICE will have to build up a library of different patient pathways and what the relevant quality standard should be. What are the implications of putting that in the Bill? I will not go into any great detail, but the Minister will know that bringing competition and competition law into the national health care system will result in lawyers interpreting whether or not local commissioners have ensured that they commission on the basis of the quality standard for their area. That is my question to the Minister: what are the implications of putting that in the Bill, given the great changes accompanying the introduction of competition? Will the quality standard be the one thing that people will look at to see whether commissioners are doing the right thing or not?

We were told—I assume that it is in this clause but I cannot pick it out—is that NICE will also lay down quality standards for providers, both public sector and independent. Those providers would have to look at the quality standards when providing a service. That might be a good thing, but something is absent from clause 218 or any other. First, competition was going to be based on price. Then we were told that it would be based on quality. Nowhere in any evidence or on the face of the Bill does it say that Monitor will have to consider the quality standards, although we are led to believe that it will be the one organisation that will ensure quality throughout the national health service.

It seems a great absence, if that is the case. I know that it was a late conversion for Monitor to consider competition based on quality rather than price. I suspect that we will debate that further in the House during the next few months, but I would like to know why Monitor is absent. Am I just misreading the clause? Will Monitor be given the quality standards to ensure that when it comes to competition policy, everybody will meet the quality standards laid down by NICE?

Debbie Abrahams (Labour, Oldham East and Saddleworth)

I rise to reiterate my concern about the scope of the work that NICE will be required to undertake using the existing robust mechanisms, tools and procedures, but with fewer resources. In addition, clause 218(10)(b) relates to quality standards for the provision of public health. I would like to understand the scope of the services covered. It would be incredibly regressive to consider only services such as smoking cessation and other lifestyle-related interventions. Currently, NICE undertakes effectiveness reviews of a range of different public services. If anything, given the new approach to public health and health inequalities set out in the Bill, that range should expand, not contract.

I note the concerns expressed by the Association of Directors of Public Health, particularly about what the provision will mean for reducing inequalities, as we have discussed. We must be mindful of the Bill’s broad and different impacts on inequalities. Will the provision cover the three domains of public health that we know of, or will it be limited, as I fear it will?

Liz Kendall (Labour, Leicester West)

My points follow on from both my hon. Friends’, starting with that of my hon. Friend the Member for Oldham East and Saddleworth. One issue raised with me relates to whether the Bill will remove or supersede some of the directions issued to NICE in 2005, which was the piece of paper that I waved earlier.

The directions contain some useful and specific points about NICE’s functions relating to public health. For the record, they are the “Directions and Consolidating Directions to the National Institute for Health and Clinical Excellence 2005”, and they say that NICE should

“develop, maintain and disseminate an evidence base for effective public health action on health improvement and the reduction of inequalities in health”

and

“provide guidance on the development and setting of standards for public health and health promotion programmes and practice and support their implementation”.

Crucially, they also say that NICE should

“provide guidance on the means for improving the capability and capacity of organisations, systems and the wider public health workforce to deliver health improvement and reduce inequalities in health”.

That is quite a detailed description of the different levels on which NICE must work if it is to deliver high quality standards. My first question is: will the Bill remove the 2005 directions, or will they remain? Secondly, will the Minister explain how NICE will work with Public Health England? There is no reference to that and it is very unclear how that will work in practice.

My right hon. Friend the Member for Rother Valley asked about the general strategy for improving quality and how NICE works with other bits of the system. I want to highlight two issues and ask the Minister to provide a response. The NHS commissioning board is obviously setting the outcomes that the service is supposed to achieve. I assume that the NICE quality standards will demonstrate how those outcomes will end up being delivered, because there is little point in setting an outcome if there are no means by which it can be achieved. I understand—perhaps the Minister can clarify this—that discussions are going on with NICE about whether it will have a role in determining what a reasonable outcome is. We might have an outcome of everyone living perfect, happy lives, but there would be no point in that. We have to know that the outcome we are setting as an objective can be achieved. Will NICE have a role in determining the NHS commissioning board’s outcomes?

How will NICE work with Monitor? As the Minister will know, Labour Members do not have great faith that Monitor will improve quality for patients and the public across England. As far as I can see—I may be wrong—there is no reference to how NICE will work with Monitor in doing that. For example, will Monitor be required to take NICE’s quality standards into consideration when making its recommendations on promoting competition? Clause 221 states that regulations may require specified health bodies to take into consideration NICE’s quality standards. Does that include Monitor? Why was there nothing in the provisions on Monitor’s role about its working with NICE? If the Minister explains that and provides some clarity on it, I am sure that others will be overjoyed as I.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I shall try to spread some joy in the answers I give to the Committee. Let me start with the point about competition. It is important to remind the Committee again that the clauses on Monitor make it clear that Monitor’s principal role is to protect and promote the interests of patients. The Bill goes on to indicate the ways in which it might do that. Those are the means; the purpose is very clear. All too often, we skate over its purpose and move immediately on to various concerns—often unreal and that will not be realised—rehearsed by Opposition Members.

The right hon. Member for Rother Valley asked about the requirements to implement quality standards. Under their duty to promote quality, the Secretary of State and the NHS commissioning board will have to have regard to quality standards in undertaking their functions. The Committee has already discussed in some detail the meaning of “have regard to”, but it is worth saying that the term is not meaningless; indeed, it has a very specific set of legal meanings. We are not talking about a tick-box exercise; there is a rigorous process of considering the matter that has to be had regard to. The courts have said that that duty must be exercised with real rigour and an open mind. The commissioning consortia must have regard to the guidance produced by the NHS commissioning board, which will draw on the quality standards in developing its guidance.

The right hon. Gentleman asked about the pipeline of quality standards. Five have already been published, another 10 are in production and a further 31 have been commissioned by the National Quality Board. That demonstrates quite good and purposeful progress towards ensuring that we have the full suite. Part of the NICE’s work is to draw upon its pre-existing base of quality work on guidance and guidelines.

On whether Monitor has to follow the quality standards, the standards are implemented through the commissioning system, not through the board and consortia. Monitor must have regard to the desirability of securing quality improvement. That is covered in clause 54, which usefully addresses the hon. Lady’s question as well.

On quality standards and public health, the scope will be as broad as the Secretary of State or the board requests. NICE will not have to make a distinction between health, social care and public health. That will enable a much more integrated approach of the sort that hon. Members have raised concerns about, which the Bill drives forward significantly.

The right hon. Member for Rother Valley expressed concern about subsection (5)(a), and how we interpret “endorse”. There is a misunderstanding of what that is about, which is partly answered by subsection (10), which talks about the relevant commissioner. It means the commissioner of the quality standard, which in this case might be the board or the Secretary of State. The commissioner will have to confirm that it is content for the standard to be published. Subsection (5) refers not to the commissioning activity within the NHS, but to the commissioning of the standard, and in that sense it has nothing to do with competition.

An overarching concern articulated in several of our debates today is the level of resource that is available to NICE, and the suggestion that there is to be a 30% cut. Let me make it clear that we have not announced a 30% cut for NICE. That is speculation that has developed in the Committee over the past few hours. The planning assumption for NICE is a 10% to 11% reduction for 2011-12, which is consistent with other arm’s length bodies. The 30% figure refers to the arm’s length body sector as a whole. I hope that that reassures hon. Members that much more resource will be available to NICE than has been suggested. I am sure that the joy that the hon. Member for Leicester West sought has now been disbursed.

Liz Kendall (Labour, Leicester West)

I am not overjoyed. I do not understand how the Minister can suggest that an 11% cut this year will give NICE more money than it thought it would have. On the origin of the 30% figure, it is hardly surprising when the Government have said that arm’s length bodies will face a 30% cut. In the first year NICE is facing an 11% cut, and there are two or three more years ahead of the spending review period, so it is not unlikely that it would face such a cut. It is important to have that on the record.

The Minister did not answer my questions about whether the directions that were issued in 2005 remain in force for NICE or whether the Bill supersedes them. The directions set out a detailed approach to what the Opposition consider to be public health, which is acting on a societal level as well as on community and individual levels.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I suspect the hon. Lady is about to ask about the relationship with Public Health England, as well. The answer is that Public Health England is part of the Department of State functions; the Department is accountable to the Secretary of State. We have discussed that already. The relationship will therefore be the same as any relationship that NICE has with the Department of Health. Regarding the 2005 directions—I wish I could read the handwriting on my note, which comes as a big shock as my own handwriting is very bad—the Bill provides for the re-establishment of NICE with the functions that are specified in the Bill. I will make sure that there is more clarity about the directions, but our intention is that we do not lose anything that is necessary during the transition from special health authority to statutory body.

Liz Kendall (Labour, Leicester West)

I am grateful to the Minister for his comments. I urge him to look closely at the directions, because they are a good outline of what it would take to improve the quality of public health services for individual professionals, for organisations and the for system as a whole.

Clause 221

Liz Kendall (Labour, Leicester West)

I beg to move amendment 670, in clause 221, page 192, line 18, leave out ‘may’ and insert ‘will’.

The amendment relates to the point raised by hon. Members during the discussion on clause 70 and concerns whether commissioning bodies will be required to implement the NICE guidance. That was one of the key issues raised. Clause 221(8) states that the regulations “may” make provision to require health and social care organisations to have regard to NICE advice or guidance, and “may” make provision for bodies to comply with NICE recommendations. As the Minister will be aware, I do not want a debate about “have regard to.” This debate is about the wording that states that regulations “may” require specified health or social care bodies to have regard to guidance and comply with it.

The amendment would change the wording to state that the regulations “will” make provision to require bodies to comply with the NICE guidance. It is a small change, but it would have a big impact. Labour Members are concerned that there could be a watering down of the rights of patients and the clear requirement on commissioning bodies to comply with the NICE guidance. That could have a knock-on effect that would undermine the right of patients, as set out in the NHS constitution, which states:

“You have the right to drugs and treatments that have been recommended by NICE for use in the NHS, if your doctor says they are clinically appropriate for you.”

If the Government believe that the Bill will not change anything and that GP commissioning consortia will still be required to implement the NICE guidelines—there are big debates about whether they will be able to afford to do that within the budget—the amendment would make that clear.

Owen Smith (Labour, Pontypridd)

As my hon. Friend said, some of these points have been addressed to a certain extent in an earlier debate. Nevertheless, if the Minister could provide any clarifications, that would help the Committee. Those clarifications relate to the future world in which we have the changes to NICE and where value-based pricing applies. I anticipate the Minister saying that we do not know exactly how value-based pricing is going to work, and therefore he cannot address that point, but I will ask him to delve into those realms to some extent. The point is relevant because in a world with value-based pricing, however it works, there is a crucial question about the connection between NICE’s guidance, price setting and the GP consortia. The Minister needs to address that issue and offer some clarity in relation to the issue touched on in subsection (8) about the mandatory funding, or otherwise.

The Minister said earlier that value-based pricing could apply or be relevant nationally or locally, which delves into the future. Can he clarify that point?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I urge the hon. Gentleman to read the record. I said that we had not formed a view on whether it would be national or local, but he is implying that a view had been formed. I want to ensure that this is clear.

Owen Smith (Labour, Pontypridd)

I think I was clear, but I phrased it differently. I said that the Minister implied that value-based pricing could apply locally or nationally, which is pretty much the same as saying that he had not decided whether it would apply locally or nationally.

My point is simple: it cannot possibly be right to suggest that value-based pricing could apply locally, because that would suggest that individual GP consortia would negotiate value-based prices with pharmaceutical companies. I do not imagine that the Minister thinks that would be a sensible situation. Such a lack of clarity on that speaks volumes about how it is very unclear at the moment how value-based pricing will work and how it will relate to NICE’s job and GPs’ decisions to fund medicines. That takes us to a second hypothetical but entirely relevant point.

Let us remember what happens now. If NICE reviews a medicine and deems it cost-effective, it is mandatory for the NHS to fund it, and, effectively, PCTs have to provide funding. The Minister implied in an earlier answer that that will still pertain under the new system and that certain types of medicine—the ones that NICE accepts are value for money or for which the company agrees to the price point set by NICE, I presume—will be mandatorily funded. However, I asked him to reflect on what happens now when a medicine is not approved by NICE and is still, as the Minister mentioned, put on the market in the UK. That is where PCTs come in and, either through exceptional case funding or through the pharmaceutical committees in the PCT, make local, ad-hoc decisions on whether to fund a patient in their locale to receive that medicine. That situation will not go away.

If a company chooses not to agree to the price point set by NICE and releases the medicine to the market anyway, somebody in the system at a local level will decide whether to make that medicine available. In the new system, I assume that will be the GP consortia. That leads me to the specific question: does the Minister imagine that, under the terms of the Bill, GP consortia will have similar methods, through pharmaceutical committees of their own, of making those decisions? Will the consortia apply things such as the exceptional case funding mechanisms with which we are familiar? If that is the case, is he convinced that they will have the relevant expertise? Given that they will be doing a hell of a lot under this new system as far as I can see, will they have the time? Is there not a risk that some will do it well and some will do it badly, so it will be less uniform than the system now and the postcode lottery will be expanded?

John Pugh (Liberal Democrat, Southport)

I understand the amendment would change the wording from “may” to “will”. Clearly, “will” is more prescriptive. My point relates to the remarks that were made on mission creep. Where all NICE is recommending is that a particular drug be made available, I think that Ministers can reasonably gauge the effect of requiring any specified health body to make it available. It is different where NICE is doing something more complex, such as laying out a pathway of care. I was looking at the pathway of care quality standards for strokes recently, and Members can look at it themselves if they so wish. A complex chain is expected to be in place with regard to how things are dealt with in the first phase, in the acute setting and after the stroke patient has been seen to, and with regard to how recovery is aided. Regulations to require people to implement that will be a very tough judgment call for a Minister to make to some extent, because he must be assured that all organisations are capable of implementing it. That takes us back in a sense to the debate about “have regard to”. If Ministers are simply asking various commissioning bodies to take it on board that that is where they should be heading and that that is the sort of thing they should be looking to prescribe, that is fine.

The rest of the debate is in Hansard.