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Lord Renton: My Lords, perhaps I can ask the noble Lord to clarify one matter. He said that this was a probing amendment when he was speaking to Amendment No. 4. Is Amendment No. 3 also intended to be a probing amendment or an operative one?

Lord Clement-Jones: My Lords, Amendment No. 4 and its counterpart in Clause 15 are both designed to be probing amendments.

The Chairman of Committees (Lord Boston of Faversham): My Lords, intervening in the form of a Speaker of your Lordships' House, which we do not have for these purposes, perhaps I should indicate that, although the noble Lord, Lord Clement-Jones, is attempting to be helpful to your Lordships, I must call the amendments in the order in which they appear on the Marshalled List. The way in which he can continue his helpful stance, however--if I might provide a further moment of guidance--is that when Amendment No. 4 is called, he might not need to "rewind the tape".

Lord Clement-Jones: My Lords, I thank the Chairman for that helpful intervention which has got me out of a complete fix. I move therefore to Amendment No. 3, which is also designed as a probing amendment.

At both Committee and Report stages we had a discussion about consultation arrangements which would be appropriate on moving from PCGs to PCTs. The Minister said that she would carefully consider the consultation arrangements and regulations will be made setting those out. One of the problems we have had throughout Committee and Report stages is the "list" question. The noble Lord, Lord Skelmersdale, was zealous in ensuring that we did not "truck" with any lists. But the problem with that is that we cannot extensively set out on the face of the Bill those with whom it is appropriate to consult. In those circumstances, regulations are appropriate.

The Minister gave us assurances on Report, and it would be helpful to hear from her now, that she would inform us of the progress being made in terms of publishing draft regulations which would allow us, as the Bill passes through the other place, to consider

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whether they are appropriate. It is of course possible for the regulations to be approved only by affirmative resolution. I do not necessarily consider that to be appropriate. This is a way of eliciting a reply from the Minister in those circumstances. I beg to move.

Lord Skelmersdale: My Lords, for the avoidance of doubt, I should point out to the House that I am speaking very firmly to Amendment No. 3. I shall have more to say about Amendment No. 4 a little later, assuming that it is moved. The noble Lord, Lord Clement-Jones, referred to my "anathema" of lists. But of course the corollary of that is that Parliament should know whether the Government have consulted appropriate people. Indeed, the Bill talks about "appropriate people" in various places.

However, that can be done only if there is an opportunity to question the Government. It is very difficult to do so by the negative resolution procedure. So I have a great affinity with the noble Lord in his request for having the regulations under affirmative instrument as opposed to negative instrument, the reason being that it makes life very much easier for Back-Benchers. If the affirmative resolution is used and has to be debated, it is debated; whereas, if it is by negative resolution procedure, you have to notice it and then table a Prayer within 40 sitting days, which adds to the burden on Back-Benchers. Governments always love this, but it is not necessarily right for Parliament as a whole. I support the noble Lord.

Lord Renton: My Lords, as some of your Lordships may remember, I am one of those who is always anxious that we should manage to have Acts of Parliament drafted without constant reference to amplification by regulations. Here we have regulations about consultation requirements. With deep respect to the Government, especially the noble Baroness who has always done her work so splendidly for us, I wonder why we need regulations at all in order to amplify the consultation requirements. Those requirements will vary among the number of people to be consulted.

As time goes on, the nature of the consultation on somewhat technical matters will vary. It surprises me that the matter should have to be stultified at one moment by being put into regulations. If there are to be regulations, I suppose that the Houses of Parliament should be told about them and given a chance to discuss them and approve them, or otherwise. However, my doubt here is whether, in these unusual circumstances, regulations are really necessary.

Baroness Carnegy of Lour: My Lords, I may be misunderstanding this, but I do not know why the noble Lord has stated in his amendment that no regulations are to be made,


    "unless a draft has been laid before and approved by resolution of each House of Parliament".
Surely it is the regulations that will be laid before Parliament, not the draft. I do not know why the word "draft" has been used in the amendment.

Baroness Hayman: My Lords, in responding to this amendment I think that we have had two different sets

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of criticisms, so to speak. As I understood him, the suggestion made by the noble Lord, Lord Renton, was that after the outline for consultation had been made clear, the arrangements for consultation would basically be a matter for the discretion of the Secretary of State. The import of the amendment is that there should actually be a level of parliamentary scrutiny higher than use of the negative resolution procedure. Indeed, that was the point endorsed by the noble Lord, Lord Skelmersdale. My own view is that it is important that there should be some element of parliamentary scrutiny of the laying of regulations about consultation requirements prior to the establishment of a PCT.

Existing provisions in the Bill provide for any regulations made by the Secretary of State to be exercisable by statutory instrument subject to negative resolution procedure. As we know, this amendment would mean that consultation regulations would be subject to affirmative resolution procedures whereby a draft has to be laid before both Houses and approved by resolution. I believe that the formulation is a draft rather than the regulations in those circumstances.

In looking at the level of parliamentary scrutiny, or considering whether any such scrutiny is appropriate for consultation regulations, we sought to follow established practice. The Delegated Powers and Deregulation Committee considered that the broad approach adopted by the department in relation to the powers in the part of the Bill dealing with primary care trusts was appropriate. The committee did not suggest in its report that the affirmative resolution procedure was a more suitable approach for these regulations. It did not raise the level of scrutiny of regulations under Section 16A(5) as an issue for the House to consider. In the context of the NHS, regulations relating to NHS trusts were and are laid before Parliament using negative resolution procedures.

Affirmative resolution procedures are considered to be necessary only in exceptional circumstances. The affirmative procedure is normally appropriate for powers affecting provision of Acts of Parliament. Such an example is Clause 52 of the Bill which deals with the regulation of health care and associated professions. It is normally appropriate for powers to impose or increase taxation or other financial burdens or to raise statutory limits on the amounts which may be borrowed by or lent or granted to public bodies. Alternatively, there are powers involving other considerations of special or exceptional importance. An example would be the powers to create new varieties of criminal offence of a serious nature.

The Government do not accept that regulations setting out the requirements for consultation are matters which fall within this category and are of such exceptional importance as to merit affirmative procedures. However, we do feel that it is appropriate to follow the precedent adopted for NHS trusts and to have some scrutiny by the negative procedure, although I obviously understand the concerns expressed by the noble Lord, Lord Skelmersdale, that the balance, therefore, goes towards the Executive rather than towards Back-Benchers. I do not believe that we are out of line with practice in this respect.

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Perhaps I may reassure the noble Lord that the consultation has taken place. We intend to consult widely with key stakeholders, including national professional and patient representative bodies on the contents of these regulations.

The noble Lord, Lord Clement-Jones, asked questions in relation to the timetable for publishing regulations setting out the requirements on consultation. We are concerned to take note of the views and comments both of this House and additionally of those in another place. Therefore, I do not believe that we can sensibly formulate a draft of these regulations at this early stage. However, I can assure the House that we do intend to bring forward draft regulations as soon as possible after the enactment of the Bill. On that basis, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Clement-Jones: My Lords, I thank the Minister for that helpful reply. Indeed, it is the most extended response that she has given on this particular subject to date. However, I am somewhat disappointed that consultation will not take place while the Bill is still going through Parliament. In a sense, that seems to me to be a little like buying a pig in a poke because consultation as regards moving from PCGs to PCTs is an important part of the whole process. Nevertheless, the Minister has indicated the extent of the consultation which will take place over the regulations and that clearly will be very wide. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.


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