NHS Reform and Health Care Professions Bill

[back to previous text]

Mr. Hutton: I beg to move amendment No. 91, in page 3, line 25, leave out '(2)(a)' and insert '(3)(a)'.

Once again, it is a minor, purely consequential amendment to correct a cross-reference in the original drafting.

Question put and agreed to.

3.19 pm

Sitting suspended for a Division in the House.

3.35 pm

On resuming—

Mr. Burns: I beg to move amendment No. 123 in page 3, line 31, at end insert—

    '(6) No functions shall be distributed to or exercisable by a Primary Care Trust unless the Secretary of State has laid before each House of Parliament a statement to the effect that such Primary Care Trust is ready, willing and able to receive and exercise such functions.'.

I will try not to give this debate an air of de''ja vu by referring to an earlier debate. This deals with the question of whether the negative or affirmative resolution is used to approve the secondary legislation that fleshes out some of the powers given to the Secretary of State to enact the Bill.

Clause 3 gives the powers for the transfer of functions to the strategic health authorities and PCTs to carry out their newly defined duties under the Bill. We must also bear in mind the contents of schedule 2. Not only does the clause give the Secretary of State the powers to delegate directly to PCTs the exercise of any functions conferred on him by health authorities, including things like providing hospital accommodation, but there is a range of duties and

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functions in schedule 2 that will be carried out under the powers contained in the clause. All hon. Members will accept that this is an extremely important part of the Bill, because it provides the powers to ensure that the Bill fulfils its objectives and that the relevant bodies and organisations have the statutory basis to carry out their duties.

Those powers are given through secondary legislation, which again is carried out by negative procedures. My hon. Friends and I would argue that given the significance of the powers in this clause, the negative procedure is just not the right way to proceed. In an earlier debate on a similar clause with regulation-making powers, we pointed out that just over 2,000 statutory instruments laid before Parliament in the last Session required the negative procedures. The vast majority of them never had the opportunity to be debated in the House or another place. From memory, I think that about 30 statutory instruments subject to the negative procedure were debated in the House.

If one looks at the situation in the context of the proper monitoring and holding to account of legislation, I hope that the Minister will agree that it is unsatisfactory to use secondary legislation to enact parts of primary legislation that has been studied line by line in Committees such as this. The same argument applies as before. When the Minister was in opposition, in Committee after Committee on Bill after Bill, he and his shadow ministerial colleagues clamoured for more Government accountability to Parliament on significant pieces of secondary legislation. It was unacceptable that they should slip through almost on the nod by the negative procedure. Ten years ago, the Minister would have agreed 100 per cent. with every word that I am saying, but life has moved on and things have changed. He now has the responsibilities and I do not, so the arguments that Labour Members and possibly the Minister made in Committee at the time are no longer regarded as valid.

We cannot remain in a time warp. One should always be sufficiently intellectually alert to challenge perceived views when life moves on, and this is one of those times. I hope that the Minister agrees that the powers in the clause are crucial and warrant a more careful study by Parliament before being enacted. That could be done only by changing the negative procedure envisaged by Ministers into the affirmative procedure, so that we and another place have an opportunity to study what the Government are proposing and to ensure that they have got it right.

Even though a statutory instrument cannot be amended, it can be withdrawn if it is shown that there are significant flaws in any of its proposals, and it can be redrafted. However, we have the opportunity to prevent potential pitfalls only if we have a debate in a Committee, so that we can study the statutory instrument. If the negative procedure applies, according to the law of averages the past figures that I have quoted show that the chances of having a debate are negligible.

The Minister would be in an unenviable position if a statutory instrument gave the Government the powers to bring in the provisions, and a glaring error

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or fatal flaw in the proposals was suddenly discovered afterwards. If the amendment were accepted, this Minister in particular would be more than anxious to thank me for helping him to avoid that pitfall and the tarnishing of the justifiable and reasonable reputation that he enjoys as a Minister of State in the Department of Health.

With the intellectual power of persuasion and a little flattery, I hope that the Minister will be reasonable enough to agree that my case for the amendment is overwhelming. In the long run, it would help him to avoid any pitfalls that parliamentary draftsmen, civil servants or Ministers looking through their boxes late at night had missed. I hope that for the common good and to avoid mistakes being found when it is too late, he will accept the amendment.

Mr. Hutton: I am grateful for the flattery by the hon. Member for West Chelmsford. I always enjoy flattery and I particularly enjoyed that moment, so perhaps he would like to repeat it.

Mr. Burns: I will if it works.

Mr. Hutton: It very nearly did. I was seriously tempted to accept the amendment, but then I realised that the hon. Gentleman was over-egging the pudding just a little and I pulled back towards the end of his remarks.

I understand where the hon. Gentleman is coming from. He made clear his views on the general issue earlier, and I have set out my views on it as well. As always, we need to consider the amendment before us, not the general principle that underpins it, for which many of us may express some support. The Committee is charged with considering the amendment.

The hon. Gentleman asks for the affirmative resolution procedure to apply. The amendment would require the Secretary of State to make a statement to the House that a PCT was ready, willing and able to receive and exercise the relevant functions. However, those are matters of judgment. They are not about the wording or otherwise of any regulation, so I am not sure that his point about improved scrutiny of the wording or technical drafting of regulations is relevant to the amendment. He is asking the House to make a judgment on the suitability or otherwise of PCTs. That is different argument from the one about improving the scrutiny of regulations. He has again chosen the wrong issue and the wrong amendment to make his point. The amendment was a vehicle for making the same general observations, and he has done that. I will not bore the Committee with another long description of my reasons why the amendment should not be accepted, I simply refer him to my earlier remarks. The hon. Gentleman has not raised any issue of substance or any different issue of principle. I do not want to leave him feeling disappointed or somehow chastised. I will find another occasion to flatter him. Indeed, I want to flatter him, but he will have to make it easier for me to do that.

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3.45 pm

I pay tribute to the hon. Gentleman and hope that that might help him. He talked about the need for us to be intellectually alert. He always is, and has a fine reputation in the House for that. I know how difficult it must be for him today, because I understand that he is trying to give up smoking. I gave up smoking, and know how difficult it is. I did not feel especially intellectually alert, and on the day that I tried to give up, I thought that my IQ had dropped by about 50 per cent. I wish the hon. Gentleman every success, although his performance today does not show that he is suffering from the effects of giving up smoking.

Dr. Richard Taylor: I am relieved that, in England at least, full implementation is slightly delayed until April 2003. However, we must face the fact that the change for GPs and PCGs that are turned into PCTs is huge. The paper that was circulated by the Minister entitled ''Functions currently directly conferred on health authorities and transferred by the Bill'', is a huge list of duties that go to PCTs. In my county, the three PCTs will be responsible for their own local services and each will be responsible for a huge list of county-wide services. My PCT will become responsible for children's services for the county. Will the Minister assure us that resources and expertise will be given to the PCTs by April 2003, so that they can take on the extra duties that, in the case of my trust, more than double the payroll of the staff for which it is responsible?

Mr. Oliver Heald (North-East Hertfordshire): I apologise for not being here earlier due to business in the House.

The purpose of the proposal is to have a failsafe mechanism to ensure that before a PCT is given functions, it is willing and able to receive them. There is also the timetable issue. A PCT must be ready, and we have already amply debated the lack of preparedness of some PCGs. The hon. Member for Wyre Forest (Dr. Taylor) touched on the range of functions that could be transferred to a PCT, as well as those that are delegated by the Secretary of State. A PCT could be ready to undertake some functions that it is given, but not others, such as recruitment or dealing with retention difficulties. Does the Minister see any reason why it would not be possible, in an appropriate case, to give a PCT only the functions that it is ready, willing and able to take on, or does there have to be a template solution, in which all the functions are transferred in one go? In other words, is it possible to have what used to be loosely described as variable geometry?

 
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